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Police Video Recordings Now Changing Evidentiary Landscape

The new wave of police-created videos bring a new set of questions to the fore regarding open records and privacy issues, and an investigation's integrity if video is released immediately.

(Tribune News Service) -- In 1991, a video recording of Rodney King being beaten by Los Angeles police officers shook the nation. In April 2014, a cellphone recording of Moore, Okla., police officers standing over what appears to be the limp body of Luis Rodriguez in the parking lot of the Warren Theatre also ignited public concern.

What the cell footage taken at Warren Theatre does not show is what happened leading up to Rodriguez’s heart failure.

Video evidence may not always tell the whole truth, and it sometimes has shock and entertainment value, in addition to being one link in the evidentiary chain. We — the public — want to see what happened. We want to know the truth.

And under the law, we have that right.

In response to situations like the Warren Theatre incident, police departments have been purchasing police-worn body cameras that go where police officers go and record their interactions with the public.

This new wave of police-created videos bring a new set of questions to the fore regarding open records and privacy issues, along with concerns regarding the integrity of an investigation if video is released immediately.

“They have to turn over other information immediately,” said Joey Senat of FOI Oklahoma.

What information is available during the course of an investigation varies under Oklahoma law.

While video of police interrogations has never been public, often video recordings from inside a police car have been considered subject to open records requests, but the audio-visual scope covered by recording devices in police cars is highly limited.

Current Oklahoma law will require virtually all video resulting from dashboard cameras and police-worn body cameras to be subject to open records requests, with only a few exceptions, which include naked or dead bodies, juveniles and police who are under investigation.

Video of police under investigation are to be released when the investigation has concluded. Other video, even if it’s part of an investigation, must be released.

Assistant City Attorney Rick Knighton said previous work product that was part of an ongoing investigation could be withheld until that investigation was done, but changes in the Open Records Law last year require the immediate release of dash and body cam videos.

“The reason you did not have to disclose information that was part of the investigation in the pre-2014 version was ... it had to be an arrest,” Knighton said.

Usually, investigations culminate in an arrest.

“That Subsection 9 that was added is not based on the arrest but simply on the fact that you have a video,” Knighton said. “Those are some of the concerns that were raised by Norman.”

Knighton is referring to a failed bill originally authored by Norman legislator Rep. Claudia Griffith. Griffith, a freshman Democrat, pulled the bill after it was almost entirely replaced with a new version by committee chairman Rep. Mike Christian.

Knighton said under the current law, once a video recording is obtained by police, it must be released — there’s no exception for an ongoing investigation.

District Attorney Greg Mashburn also sent a representative to speak with Griffith and other state lawmakers about concerns with the current law.

Mashburn said the law protects files in a prosecutors’ office, but video may have already been released by police departments before it gets to his office.

“That’s why you see people trying to get (the law) changed so that it’s protected during the investigation through the trial, both for the victim and the defendant,” Mashburn said. “People are innocent until proven guilty.”

Mashburn said it’s not a matter of denying access permanently or an unwillingness to be transparent.

“My deal was, we needed to do something to protect both the victim and the defendant but still allow access,” Mashburn said. “We’re not saying it’s never to be released. We’re saying to delay the release until the criminal justice system has had time to work. That’s all it ever was.”

Many states require investigative information to be released, regardless of the outcome, once an investigation has ended. Senat said Oklahoma law seems backward in that regard.

“Our law doesn’t say that once the investigation is closed, it becomes public,” Senat said. “They don’t want to turn over investigative information ever.”

State Sen. David Holt, R-Oklahoma City, authored the 2014 bill that was adopted by the legislature opening up all video recorded by dash cameras in police cars and all body cams to the public upon request.

“We were 100 percent of the time thinking about dash cams,” Holt said, despite that body cams are included in the language of the text.

Body cams bring a new set of problems to the fore because they follow the police officer going into homes and private businesses.

Holt said most of what a dash cam records is clearly within the public realm — it records what’s happening on the street in front of the police vehicle.

“It’s all traffic stops and car chases,” he said.

Holt said last year body cams were included but seemed futuristic. Now, many police departments are getting them.

“In a rapid amount of time, body cams became a highly discussed concept,” he said. “They capture the ugly side of life that police officers are exposed to on a daily basis.”

Griffith’s failed bill was an effort to deal with issues of privacy, but Holt said that bill mostly depended on trusting police officials to decide what to release to the public.

“It almost undermined the whole point of having the cameras,” Holt said. “These are supposed to be for the public good.”

He is working on a bill that he hopes can deal with privacy issues. To do that, he has taken Griffith’s bill to the Senate side to use it as a vehicle for legislation this session.

The session ends in May. If House Bill 1361, originally authored by Griffith, is not a suitable vehicle for the legislation, it will be February 2016 before changes to current law regarding body cams can be addressed.

Sessions run from February through May. Special sessions are rare, which means that each February, the legislature “begins with 2,000 bills and there’s a series of relentless deadlines,” Holt said.

Holt said he is working with representatives from the Oklahoma Press Association and other transparency advocates, as well as trying to address the concerns expressed by law enforcement.

“The problem with an investigation is that’s a somewhat subjective comment, more than it might appear (to be) on the face,” Holt said. “There’s people you might trust to make those decisions, and there’s people who you might not trust to make a decision that’s in the public interest. The challenge is how to write that discretion into statute because ‘trust us’ is not acceptable.”

Concepts law enforcement are holding out as a means to withhold video evidence, such as protecting the investigation and ensuring a fair trial, sound good but can be slippery, Holt said.

What happens in the instance of a cold case where the investigation never ends? In some instances, it can be sound to hold back evidence — if there is something only the guilty person would know, for example.

But how long is too long to keep information from the public?

“My bias is transparency,” Holt said. “I’m open to common-sense exceptions.”

©2015 The Norman Transcript (Norman, Okla.) Distributed by Tribune Content Agency, LLC