Aug. 9 2016 04:56 PM

Public input was lacking in creation phase, says ACLU

District Attorney Bonnie Dumanis and San Diego Police Chief Shelley Zimmerman remain blurry about the release of police body-camera videos.
Photo illustration by John R. Lamb

You want results, not rhetoric. You want action, not promises.

— Michael Bloomberg

Gauging by coverage from local mainstream media, it appeared that local law enforcement last week ripped back the curtain of uncertainty by vowing to make public the footage from body cameras captured during officer-involved shootings.

"We will show the video no matter what," District Attorney Bonnie Dumanis emphatically told a KUSI reporter last Wednesday. "If it's flattering to the officers, that's well and good. If it's not flattering, we're still going to show it."

A San Diego Union-Tribune story about the unveiling by Dumanis and San Diego Police Chief Shelley Zimmerman of the long-awaited written policy suggested that public input from "attorneys, community members, elected officials and representatives from civil rights and media organizations" had played a vital role in developing what county Assistant Sheriff Mike Barnett described as a "collaborative policy" that "strikes a balance between the public's desire to know and the due process everyone is entitled to when an officer-involved shooting occurs."

Spin Cycle won't quibble with the assistant sheriff's use of the word desire when he certainly meant the taxpaying public's unequivocal right to know. But if this exercise represented a "collaborative" effort, that's news to local civil-rights advocates.

"It's an acknowledgement that there is a need for transparency, so that's great," said Christie Hill, senior policy strategist for the local American Civil Liberties Union. "But a lot of the comments [from the public] do not appear to have been incorporated into the policy."

Added Hill: "We just want them to push further in the scope of the policy and how quickly they're releasing information and what that information is so that it really does serve the goals of transparency and accountability."

Back in December, a spokesperson for Dumanis told the local NBC affiliate that his boss "misspoke" when she listed only law enforcement representatives from her office, the U.S. Attorney's office and the county Sheriffs Department on the working group developing the new policy.

At the time, local criminal defense attorney Michael Crowley blasted the exclusion of community members, including, as NBC reported, "outside attorneys and perhaps a journalist."

"It's strictly law enforcement," Crowley told NBC then. The December story ends with a Dumanis spokesperson saying the district attorney would "talk with defense attorneys and the ACLU about their potential involvement with the group."

From the ACLU's perspective, that never happened. "We were not part of the working group," Hill said. "We had one meeting where we were asked for our general stance on body cameras, but we didn't get to comment on a specific draft policy."

Hill said her organization heard about the written policy at the same time the media were alerted last week. When Spin Cycle asked the DA's office for a roster of participating community members and organizations, a spokeswoman replied tersely, "We don't have a list of that...Sorry."

The two-page policy "addendum" appeared on the letterhead of the "San Diego County Police Chiefs' & Sheriff's Association," whose offices appear situated wherever its current president is employed—in this case, the office of Escondido Police Chief Craig Carter. The association held two town halls in May to gather public input.

In the UT story, Carter trumpeted his association's efforts as "likely the first such policy in the country where an entire county has agreed to an officer-involved shooting video release protocol."

But Crowley on Monday had a different take. "Basically, this is just about lining up law enforcement, getting them on the same page," he said. "If we take to its logical conclusion what law enforcement is saying, the public is too stupid and can't be trusted to view this footage, and it will lead to riots."

Yes, there are caveats—Grand Canyon-sized caveats, in fact. Body-cam footage won't be released if criminal charges are filed ("video would likely become public when it's entered into evidence" during a trial, the policy notes). And while the policy states that "it should be the practice in most situations to release video in officer-involved shooting cases whenever possible, as soon as it's appropriate to do so," that won't happen until the DA's office has completed its review and reported its findings to the agency involved.

Law enforcement also reserves the right to alter the videos by blurring the faces of officers, witnesses and "the person shot" and editing out all but "those portions of the video related to the DA's decision of whether or not a crime has been committed." And rather than simply releasing the video, the DA will "make a public statement" in order "to provide appropriate and important context."

Michael Marrinan, a local attorney who specializes in police misconduct, called it "unnecessary and inappropriate" to hold off releasing the video until the DA review is completed, a process that he says can take a bewildering six months or more. "Why it takes that long I don't know, but saying that none of this video would ever be released sooner than six months after an incident, that's unacceptable."

But Marrinan saved his fiercest objection for the "public statement" clause. "The idea that the DA's office would be releasing the video and advocating a position for or against law enforcement, for or against the victim, is inappropriate," he said. "The public should make its decision itself."

He gave as an example the shooting of Fridoon Nehad, the unarmed man shot to death by San Diego police officer Neal Browder in the Midway district last year. Attorneys for the family suing the city in federal court over the shooting sought a change of venue—unsuccessfully—based on comments made by Dumanis in a November press conference.

At first opposed to releasing video of the incident, Dumanis relented at the time but "sought to convict Fridoon, and exonerate Browder, in the court of public opinion," the legal motion stated.

For the ACLU's Hill, it's a positive that a written policy now exists. Whether law enforcement is willing to improve it—including expansion to cover other non-lethal uses of force—will determine whether transparency and accountability remain fuzzy goals.


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