Access to Police Video Limited to Those with Legal Standing?
By: Shaun David Malone
In the wake of recent events surrounding the shooting of Keith L. Scott in Charlotte, NC, much of the public’s attention has been on the release or access to police camera recordings, whether it be body camera or dash-cam video. On July 11, 2016, prior to Scott’s death, the Governor of North Carolina approved HB972, which became effective on October 1, 2016 as North Carolina General Statute § 132-1.4A. The Statute states that recordings by law enforcement personnel are not public record. Further, the Statute prohibits the release of the recording without a court order. The question becomes why the North Carolina General Assembly would pass a law to require a court order to release police recordings. Other portions of the Statute suggest that the General Assembly was attempting to limit access to police recordings to persons having a specific interest such as those who have legal standing for a claim, like police misconduct, or defense against a criminal charge. For clarity, access to recordings for defense in a criminal matter will be discussed first.
In Brady v. Maryland, the Supreme Court held that it is a violation of due process for the prosecution to suppress evidence favorable to the defendant upon request, where the evidence is material to the defendant’s guilt or punishment. Under § 132-1.4A(f), the new Statute prohibits the release of police recordings without a court order, but also sets out factors to consider when the court determines whether to order the recording’s release. The Statute provides that one of the factors is whether “the person requesting the release is seeking to obtain evidence to determine legal issues in a current or potential court proceeding.” While the Statute affords some discretion to the courts, it is still superseded by the protections afforded in Brady. Therefore, criminal defendants retain the right to access the recording, when that recording contains evidence which is favorable to the defendant and is material to the defendant’s guilt or punishment.
Now for the main point of inquiry, access to the recording in pursuit of claims for police misconduct. As much as §132-1.4A considers obtaining evidence for current or potential legal matters, it also applies to the pursuit of a claim against law enforcement. However, there is one major difference. Since Brady is only applicable in criminal matters, a claimant in North Carolina cannot rely on Brady to obtain access to a recording when pursuing a civil claim against law enforcement officers for misconduct. Therefore, in a civil matter, North Carolina courts have greater discretion in relying on the other factors enumerated in §132-1.4A(g).
By giving a court discretion as to whether to release the recordings under the factors identified under §132-1.4A(g), the General Assembly created the means by which to balance the policy concerns discussed in the legislative history. The concern identified in the legislative history is the balancing of public confidence and trust in law enforcement with transparency, against the rights to privacy of law enforcement and private citizens who may appear in the recordings. The General Assembly furthered its goal in balancing the competing interests by limiting access to the recordings to persons whose image or voice is in the recording and his or her personal representatives as noted in § 132-1.4A(c).
It is the General Assembly’s restriction for recording access, a person whose image or voice appears in the recordings and his or her personal representative, which constitutes a limitation to those with standing. To establish standing, a claimant must demonstrate an actual or imminent invasion of a legally protected interest, which is fairly traceable to the defendant’s actions, and a favorable decision will likely redress the injury. North Carolina courts have also referred to standing as the issue of whether a party has a sufficient stake in the adjudication of a matter. It is important to note that § 132-1.4A(c) does not guarantee standing for a particular claim. However, without appearing in the recording or having a special relationship to a person in the recording, it would be difficult for a claimant to have a sufficient stake in the adjudication of a claim involving the events in a recording.
Therefore, by limiting access to police recordings, it appears that the North Carolina General Assembly is balancing transparency with the privacy rights of persons appearing in the recording. Any access to police recordings is statutorily limited to persons most likely to have a stake in the outcome of a claim arising out of the recording (i.e., persons with standing).
N.C. Gen. Stat. Ann. § 132-1.4A (West 2016)
Brady v. Maryland, 373 U.S. 83, 85-89 (1963)
H.B. 972, 1st. ed., Gen. Assemb., Sess. 2015 (N.C. 2016)
Neuse River Foundation, Inc. v. Smithfield Foods, Inc., 754 S.E.2d 48, 52 (N.C. Ct. App. 2006)
Lee Ray Bergman Real Estate Rentals v. North Carolina Fair Housing Center, 568 S.E.2d 883, 886 (N.C. Ct. App. 2002)