Police Are Now Required To Release The Video When An Officer Shoots, But Not All Of It
Tuesday, September 1, 2020
Photo by Matthew Bowler
Part one in a two-part series.
It had been less than a month since the nation erupted in protest following the killing of George Floyd by a Minneapolis police officer when, on June 27th, San Diego police officers shot a man in downtown San Diego.
Almost immediately, the news was up on social media and protesters gathered at the scene and called for the release of the officer's body camera and other video of the shooting. Until last year, such calls would often fall on deaf ears. Police agencies weren’t required to release video in a specific timeframe, so in many cases they would keep it secret indefinitely.
That changed, however, with AB 748, which went into effect in July 2019. The law mandates that, with some exceptions, departments release video of shootings and other use-of-force incidents in which police cause "great bodily harm" within 45 days.
Following the June 27 shooting, the San Diego Police Department released a video within 24 hours, far ahead of the deadline imposed by the new law. But it didn't release all the raw footage of the shooting. Instead, the department paid a private contractor $5,000 to produce a package chronicling the event.
The complete digital evidence of the shooting, which could include body camera footage, surveillance video from nearby stores, video from smart streetlight cameras and witness cell phone video hasn't been released yet, and likely won't be for at least a year, or more, when the full investigation into the shooting is complete.
This approach does not appear to violate AB 748. The law doesn’t say departments have to release "all the video," just "a video or audio recording." Nonetheless, some activists and open records advocates question whether police agencies are exploiting a loophole in the law that allows them to produce videos that put their officers in the most favorable light.
"Release the whole entire video, not segments of the video," said community activist and former San Diego mayoral candidate Tasha Williamson. "People get to see a full picture. If we're going to talk about transparency, then release all the videos."
San Diego Police spokesman Lt. Shawn Takeuchi disputed any suggestion that the department would produce misleading videos.
"The video is not about what's best, but what happened," he said.
Takeuchi said the department quickly released the video of the June 27 shooting because more than 50 protesters had gathered within an hour of it happening, and because of inaccurate information being spread on social media.
For example, social media posts claimed the man who was shot was Black, unarmed, and his pregnant girlfriend was nearby crying. None of that information was true. He was Latino, and when officers chased him he turned and pulled out a gun.
In two subsequent shootings, the department has acted just as quickly. Takeuchi said the comments he sees from the community on social media are positive.
"They may disagree with the shooting, but they say they appreciate us putting information out so quickly," he said.
An enterprising former journalist
The videos were produced by a Vacaville-based company called Critical Incident Video. The reason the department pays an outside company is to have an "objective outside party" look at all the facts, Takeuchi said. But the department pays the company for the video and has final say over the script and the facts that are presented.
Former TV news journalist Laura Cole started Critical Incident Video when she saw AB 748 would go into effect and suspected police departments would want to get footage out to comply with the new state law. Currently, Cole is contracting with about 100 police agencies statewide.
When an officer working for one of Cole’s clients shoots someone, the department sends her all of the raw video footage it has along with a lot of other information.
"We're going to review the body cam footage," Cole said. "We're going to ask for the 911 call if there was one. We're going to ask for witness statements. We're going to ask for any cell phone footage that might be taken by a bystander. We're going to ask for surveillance video, anything that would help bring context to the situation."
Then she creates a usually 10-minute package showing what led up to the shooting and the shooting itself.
San Diego's videos often start with a message from Police Chief David Nisleit describing the context of the shooting, for example, saying, "an officer saw him reach for a gun," or that a subject had an open container and ran away from officers. Then the videos use maps, audio from 911 calls, and on-screen text to give more information before showing footage of the actual shooting.
Cole is involved in every aspect of producing the video, even helping write the chief’s script. But the department has final approval before the video is released.
"Obviously, at the end of the day, this is their video," she said. "So they could take something out or add something in that they wanted."
Cole said San Diego Police and other departments will tell her what footage they want redacted before she starts editing, but that she’s never had a department order changes to a video after it’s been produced. And she said she would drop a department as a client if she felt it was operating in bad faith.
"If somebody came to us and said, 'we want you to use this video or make us look good,' I wouldn't take on that project because that is not going to build community trust," she said.
Cole said it's important to her that the videos she produces tell the full story — she calls the people who work for her "transparency engagement advisors." She also owns another company, Cole Pro Media, that provides media relations advice to law enforcement.
Questions about objectivity
But media experts say if the police department truly wanted an objective outside source to evaluate and present their videos, they could use other options besides a paid contractor.
"Paying an outside vendor to create a video package is not truly being objective," said Bey-Ling Sha, the dean of the College of Communications at California State University, Fullerton. For example, it would be better if the city contracted the outside company instead of the police department, she said. She also suggested putting all the sources of information into the video.
"That would also enable community members to hold the vendor accountable," she said.
Still, Sha said she understands the reason for creating a produced package instead of handing over all the raw footage: it makes the information understandable. She said there are two types of transparency problems, one where agencies don't provide any information and the other where they provide so much that people can't make sense of it.
"Some of us are so inundated with information, so by framing that information it could potentially be helpful," she said. "But in some communities with a history of mistrust of the government and police, this is where you run into a challenge, because they may have the perception that somehow the information is framed in a way that's not supportive of people being able to draw their own conclusions."
The Critical Incident Videos are also produced in a way to tell a story that falls in the police department's narrative, said Jeremy Rue, the associate dean at UC Berkeley's Graduate School of Journalism. Beginning the videos with the chief's message or text sets up a narrative arc that frames what happens in the context the police department wants, he said.
"Which is a popular technique in fiction," Rue said. "You set up a scene with context, you're contextualizing the video before you see it, so viewers are already equipped with that knowledge and it informs how they interpret what they see next. That's what you see in movies or commercials, where there's an opening narration that sets up a scene."
Rue also noted that the San Diego Police Department is making redactions in some videos, which is an editorial choice.
For example, when officers shot Toby Diller on Jan. 24 in the Oak Park neighborhood after a struggle where Diller reached for an officer's gun, the audio is redacted immediately after the officer shoots. Text in the video says that portion is redacted "because of graphic audio that was a result of the gunshot wound to Mr. Diller. We consider that audio disturbing and its release, in this form, would be disrespectful and gratuitous."
"When I saw that, I was skeptical about the rationale for doing that," Rue said. "If I had more trust in police, then I might see that and agree, and appreciate they didn't put out audio of someone dying in agony. But in this age, seeing all instances of police malfeasance, the redaction makes me skeptical."
Tomorrow: Questions about why San Diego police have not released any video of an officer shooting a woman in her apartment in the East Village on May 23.
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