Last week, Nikki Haley of South Carolina became the first governor to sign a state law directing every police department in the state to implement the use of body-worn cameras. Just one thing: The footage captured by all those cop-cams won’t be subject to the state’s open records laws.
Notably, the bill signing came not long after the Aiken Standard, a South Carolina newspaper, filed a lawsuit against local and state police for withholding dash-cam footage of a fatal 2014 police shooting. In the Palmetto State, dash-cam footage is considered a public record, subject to some exemptions.
So to recap: Camera on the cop, footage isn’t public; camera on the car, the footage is.
The two stories highlight the tension between transparency and privacy concerns as the use of video cameras as a police accountability measure expands. For some observers, they also highlight something else: a worry that police, at least in some places, will use the technology only for their own benefit.
Writing for Al Jazeera America, South Carolina journalist Paul Bowers pointed out how lawmakers had cited “privacy and safety concerns” when they amended the state bill last month to specifically exempt police body-cam videos from the state’s public-records law.
From Bowers’ June 12 story:
South Carolina’s Freedom of Information Act (FOIA), which requires public bodies to respond to requests for public records within 15 days, is commonly used by the media to obtain copies of police incident reports, police dashboard camera recordings and even emails sent by state employees. But it will not be applicable to audio and video recordings made using police body cameras, which have been touted in part as a tool to ensure transparency in police actions.
Under the law, people captured on video, criminal defendants and civil litigants will all have access to the recordings. Other than that, police departments will release the video at their own discretion. (The statute also creates a council that will issue guidelines for use of the cameras, including data release and retention. The Rock Hill Herald has a helpful guide to how the new law will affect local police agencies.)
As I’ve written before, there are good reasons why footage from police-worn cameras shouldn’t always be public. You wouldn’t want crime victims not to call the cops out of fear they’ll end up on tape. And cameras might also capture material during investigations that police have a legitimate interest in not releasing.
Still, it’s a little strange to have such different public policies on police camera use in the same state—those concerns could be addressed through tailored exemptions, after all. I reached out to South Carolina’s most prominent media attorney, Jay Bender, who has been arguing against the body-cam law in the court of public opinion, and arguing for the Aiken Standard’s right to the dash-cam footage in the Court of Common Pleas.
“I call it the cop cover-up bill,” Bender says about the new law. “It’s designed to give the appearance of transparency while cloaking misbehavior of police behind a veil of secrecy.”
Bender doesn’t believe law enforcement agencies wanted a body camera bill at all, but they didn’t want to be seen as opposing one either. This is South Carolina, after all, where officer Michael Slager in April fired eight bullets at the back of a fleeing, unarmed Walter Scott. (Slager has since been indicted for murder, and who knows what might have happened had a witness not recorded the shooting on his cell phone.)
In South Carolina, Bender told me, “unfortunately, it’s not uncommon for police reports to be works of fiction.”
On the other hand, complaints about police conduct can also turn out to be unfounded. What can set the record straight? Well, often video can, which is why the Aiken Standard asked police for the footage captured from the police cruiser of the officer involved in the 2014 shooting. (The Associated Press has been on top of this story and seeking records for some time too, and, I’m told, will be joining the lawsuit.)
Here’s what went down on the day of the fatal incident, according to the Standard:
On the evening of Feb. 9, 2014, then North Augusta Department [of] Public Safety officer Justin Craven shot and killed 68-year-old Edgefield County resident Ernest Satterwhite Sr., who was unarmed and sitting in his car. The incident occurred after Satterwhite led Craven on a 13-mile police chase that began in North Augusta and ended on Satterwhite’s driveway in Edgefield County.
The entirety of the incident was reportedly captured on dash-cam video, all of which, the Aiken Standard is seeking from the defendants in the complaint.
Last month, a grand jury indicted Craven on a felony charge for firing into an occupied car, though he was not indicted for involuntary manslaughter. According to the officer’s lawyer, Craven “feared for his life” after Satterwhite allegedly grabbed the cop’s gun. State police denied the newspaper’s request for the dash-cam video because they say it is part of an ongoing investigation, and because the officer’s attorney filed a motion to prohibit its release—he argued it might taint a jury pool. Meanwhile, the city of North Augusta has settled a wrongful death suit with Satterwhite’s estate filed by the victim’s brother for $1.2 million.
Bender argues that the Aiken Standard, and the public, deserve to see the video because it is “clearly a public record” and not properly subject to any exemption. The video, he says, has already been released to the defendant and to the family of the victim.
“In the end, I think it boils down to this video makes them look bad and they don’t want it out there,” the Standard’s editor Tim O’Briant, told a reporter for his paper. “No matter what charges Craven faces, if this video proved he did nothing wrong, they would have released it a year ago.”
I asked Bender what he thought the new body-cam law and the dash-cam lawsuit say about South Carolina’s approach to open records and the state’s Freedom of Information Act.
“I think the law is good,” he said. “It’s the culture that’s the problem.”