Officer-involved shootings and “Body Cams”

As the use of body-worn cameras grows, so do the odds that images and sounds depicting the use of force by law enforcement will be a matter of public concern.  Law enforcement’s disparate responses to two high-profile officer-involved shootings, one in Topeka involving an armed and fleeing suspect, and the other in Wichita involving a deadly prank, highlight why Kansas law related to access to body camera footage must be amended.

Police torso

Officers arrest the suspected Wichita “Swatter” in Los Angeles on December 29, 2017

Factual background

Generally, Kansas law gives public agencies discretion whether or not to release public records upon request by a member of the public, including body camera footage.  However, existing law also states that law enforcement “shall” provide the option to listen to or view the footage to those who are the subject of such footage.  The law also provides that an “heir of law” shall have access in the event that the subject of the video is deceased.

Unfortunately, the death of Dominique White in Topeka on September 28, 2017, during an encounter with police, proved that the current law purportedly allowing family members (i.e., “heirs”) to promptly review recordings made by law enforcement is ineffective.

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Dominique White

Despite elevated public unrest due to autopsy information made available to the public a little more than a month after the incident indicated the victim had been shot in the back by officers, it took law enforcement nearly three months to allow the victim’s family to view the video because under existing law, only the victim’s “children were eligible to see the footage”, and his “children are all minors.”  Law enforcement granted access to the victim’s father only after he became “special administrator of his son’s estate.”  The refusal to promptly disclose the video led to “public comment at city council meetings…about the way White’s death has been handled”, has sparked an investigation of the shooting by the FBI, and is the impetus for a Department of Justice forum on the matter sometime in January of 2018.  Community trust has suffered, even though the video suggests that White was armed and fleeing police at the time of his death.

Contrast the manner in which Topeka authorities handled the White shooting to the manner in which Wichita police handled the horrific “Swatting” incident that resulted in the death of an innocent Wichita resident, Andrew Finch, on December 28, 2017.  Finch, who was unarmed, was shot when he did not continuously comply with officer commands to keep his hands up after officers arrived.

wichita finch death

Wichita PD body camera image, December 28, 2017

In response to Finch’s death, Wichita police held press conferences both the day of and the day after the shooting, and released the 911 call and body-worn camera footage captured by one of the officers at the scene.  No law compelled these disclosures, but the law enforcement agency did so anyway.

While local media still raised questions in the immediate aftermath about the Wichita shooting and law enforcement’s decision to release footage from only one officer’s body-worn camera, the conversation stemming from this incident seems likely to focus on the conduct of the police on the scene in the moment, rather than whether the agency is attempting to cover anything up.  The Wichita PD’s decision to disclose the 911 call and body-worn camera footage, despite no law requiring such disclosures, and even though those recordings showed that the agency’s own officer discharged a firearm killing a citizen, should be codified and made part of the Kansas Open Records Act (KORA).

Revising KORA: “Level 1”

The following changes to K.S.A. 45-219 and K.S.A. 45-254 represent the bare minimum of needed legislative action.  I refer to those changes as a “Level 1” solution.

First and foremost, family members of subjects of law enforcement recordings where law enforcement has used deadly force should have immediate access to audio and video recordings documenting that use of force.  Missouri attempts to solve this problem in MRS 610.205.1(1), (2) and (3) by allowing “next of kin” to sign a release authorizing the agency to disclose death videos to anyone given a release by the next of kin.  It goes on to state that “next of kin” includes spouses, an adult child if there is no living spouse of the deceased, and the parent of the deceased if there is no living spouse or adult child.  Thus, if similar language were the law in Kansas, as long as one of White’s parents are identifiable, a copy of the video would have been disclosed, and White’s father would not have had to seek a court determination that he is the administrator of his son’s estate.

However, before anyone, including “next of kin” (or one’s “heir” in Kansas legal parlance), can gain access to copies of video or audio, KORA must be amended so public agencies shall be required to provide copies of audio and video, if, as in Missouri, the agency possesses “duplication equipment”. [1]   Accordingly, the long-antiquated provision in K.S.A. 45-219(a), which provides that “A public agency shall not be required to provide copies of radio or recording tapes or discs, video tapes or films, pictures, slides, graphics, illustrations or similar audio or visual items or devices” (emphasis added), should be amended as follows:

Proposed amendment to K.S.A. 45-219(a):

“Any person may make abstracts or obtain copies of any public record to which such person has access under this act. If copies are requested, the public agency may require a written request and advance payment of the prescribed fee payment of such copying fees may be requested prior to the making of copies.[2] A public agency shall not be required to provide copies of public records maintained on computer facilities,[3] radio or recording tapes or discs, video tapes or films, pictures, slides, graphics, illustrations or similar audio or visual items or devices if duplication equipment is available [4] or if unless such items or devices were shown or played to a public meeting of the governing body thereof., but the A public agency shall not be required to provide such items or devices which are copyrighted by a person other than the public agency.” 

A clean copy of that language would look like this:

“Any person may make abstracts or obtain copies of any public record to which such person has access under this act. If copies are requested, payment of such copying fees may be requested prior to the making of copies. A public agency shall provide copies of public records maintained on computer facilities, radio or recording tapes or discs, video tapes or films, pictures, slides, graphics, illustrations or similar audio or visual items or devices if duplication equipment is available or if such items or devices were shown or played to a public meeting of the governing body thereof.  A public agency shall not be required to provide such items or devices which are copyrighted by a person other than the public agency.” 

Next, K.S.A. 45-254(c) should be amended to clarify the definition of “heir” along with an analogue to the Missouri provision that allows for a signed waiver:

Proposed amendment to K.S.A. 45-254(c):

“(c) Any of the following may make a request under subsection (b):

(4) an heir at law, an executor or an administrator of a decedent, or to an individual who has secured a written release from the heir, when the decedent is a subject of the recording.  It shall be the responsibility of the heir at law to show proof of the familial relationship.  For purposes of such access, the deceased’s heir at law shall be: (A)  The spouse of the deceased if living; (B)  If there is no living spouse of the deceased, an adult child of the deceased; or (C)  If there is no living spouse or adult child, a parent of the deceased.”  [5]

While a “Level 1” fix would improve the law, it still fails to address the root of the problem: the broad discretion available to law enforcement agencies when determining whether to release criminal investigation records, regardless of medium.

Revising KORA: “Level 2” 

The “Level 2” fix not only includes all the amendments set forth in “Level 1”, but also would mandate the release of body camera footage under certain circumstances, including if the footage captures officer conduct that results in “great bodily harm” [6] to a subject.  However, the proposal also recognizes privacy interests may require the footage is disclosed with some sensitivity:

Proposed amendment to K.S.A. 45-254(d):

(d)   A law enforcement agency shall disclose any video or audio recording made and retained by such agency using a body camera or a vehicle camera if that recording documents (1) the discharge of a firearm by a law enforcement officer in the course of duty, other than for training purposes or the killing of an animal that is sick, injured, or dangerous, or (2) the use of force by a law enforcement officer that results in great bodily harm[7]

(e) Notwithstanding the provisions of paragraph (d) of this section, before disclosing any video or audio recording under this section, the law enforcement agency shall redact or obscure specific portions of the recording which depict or describe a deceased person in a state of dismemberment, decapitation, or similar mutilation including, without limitation, where the deceased person’s genitalia are exposed; provided, however, that this section shall not prohibit disclosure of such material to the deceased’s heir or to an individual who has secured a written release from the heir. [8]

(f) Notwithstanding the provisions of paragraph (d) of this section, before disclosing any video or audio recording under this section, the law enforcement agency may redact or obscure specific portions of the recording which (1) depict the death of a person or a dead body, unless the death was effected by a law enforcement officer; (2) depict acts of severe violence resulting in great bodily harm against persons that are clearly visible, unless the act of severe violence was effected by a law enforcement officer; (3) depict great bodily harm, unless the great bodily injury was effected by a law enforcement officer; (4) reveal the identity of any confidential source or undercover agent; (5) reveal confidential investigative techniques or procedures not known to the general public; (6) endanger the life or physical safety of any person; (7) reveal the name, address, phone number or any other information which specifically and individually identifies the victim of any sexual offense in article 35 of chapter 21 of the Kansas Statutes Annotated, prior to their repeal, or article 55 of chapter 21 of the Kansas Statutes Annotated, and amendments thereto; (8) identify minors under the age of sixteen (16) years or would undermine any requirement to keep certain juvenile records confidential as provided for in Chapter 38 of the Kansas Statutes Annotated; (9) include personal medical information that is not already public, include personal information other than the name or license plate number of a person not arrested, cited, charged or issued a written warning. Such personal information shall include any government-issued identification number, date of birth, address or financial information, or (10) reveal the identity of law enforcement officers who have become subject to internal investigation by the law enforcement agency as a result of an event depicted in the recording. The option to protect the identity of a law enforcement officer shall not be available to the law enforcement agency after the law enforcement agency has concluded the investigation and rendered a decision as to final disciplinary action. At such time when an investigation has concluded and the law enforcement agency has rendered its decision as to final disciplinary action, the portions of the recordings previously withheld as provided for in this subparagraph shall be available for public inspection and copying. The audio and video recordings withheld as provided for in this subparagraph shall be available for public inspection and copying before the conclusion of the investigation if the investigation lasts for an unreasonable amount of time. [9] 

(d) (g) As used in this section:

(1) “Body camera” means a device that is worn by a law enforcement officer that electronically records audio or video of such officer’s activities.

(2) “Vehicle camera” means a device that is attached to a law enforcement vehicle that electronically records audio or video of law enforcement officers’ activities.

The net effect of the “Level 2” solution is that Kansas law enforcement agencies would be required to disclose recordings documenting a tragic officer-involved shooting in a manner consistent with how the Wichita PD handled Finch’s death, while doing so in a manner that protects the privacy interests of the subjects of the footage and preserves the integrity of law enforcement investigations.

Revising KORA: “Level 3” 

Finally, in order to ensure that a law enforcement agency cannot arbitrarily deny access to body camera footage that does not depict officer conduct that automatically triggers disclosure under the “Level 2” solution, the criminal investigation records exemption set forth in K.S.A. 45-221(a)(10) should be amended to require such law enforcement agency, upon request, to disclose records related to inactive investigations.  Further, the amendment would ensure that criminal investigation records, other than body camera footage subject to disclosure under the “Level 2”, would never be disclosed to the public as long as a criminal investigation remains active.

Proposed amendment to K.S.A. 45-221(a)(10):

“(a) Except to the extent disclosure is otherwise required by law, a public agency shall not be required to disclose:

(10) Criminal investigation records, except as provided herein. Criminal investigative records shall not be subject to disclosure while the investigation is active. An investigation becomes inactive upon the occurrence of any of the following events:

(a) a decision by the law enforcement agency not to pursue the case;

(b) expiration of the time to bring a charge or file a complaint under the applicable statute of limitations, or 30 years after the commission of the offense, whichever comes earliest; or

(c) exhaustion of or expiration of all rights of appeal by a person convicted on the basis of the criminal investigation records.

Criminal investigative records related to an inactive investigation are subject to disclosure unless disclosure (1) would interfere with any prospective law enforcement action, criminal investigation or prosecution, (2) reveal the identity of any confidential source or undercover agent, (3) reveal confidential investigative techniques or procedures not known to the general public, (4) endanger the life or physical safety of any person, or (5) reveal the name, address, phone number or any other information which specifically and individually identifies the victim of any sexual offense in article 35 of chapter 21 of the Kansas Statutes Annotated, prior to their repeal, or article 55 of chapter 21 of the Kansas Statutes Annotated, and amendments thereto. 

Any audio or video recording made and retained by law enforcement using a body camera or vehicle camera as defined by K.S.A. 2016 Supp. 45-254, and amendments thereto which are part of inactive investigative files and which constitute a clearly unwarranted invasion of personal privacy as defined by K.S.A. 45-217(b) are not subject to disclosure, provided that the existence of the items or devices shall be disclosed to any person requesting access to the inactive investigative file. [10]

The district court, in an action brought pursuant to K.S.A. 45-222, and amendments thereto, may order disclosure of such records, subject to such conditions as the court may impose, if the court finds that disclosure:

(A) Is in the public interest;

(B) would not interfere with any prospective law enforcement action, criminal investigation or prosecution;

(C) would not reveal the identity of any confidential source or undercover agent;

(D) would not reveal confidential investigative techniques or procedures not known to the general public;

(E) would not endanger the life or physical safety of any person; and

(F) would not reveal the name, address, phone number or any other information which specifically and individually identifies the victim of any sexual offense in article 35 of chapter 21 of the Kansas Statutes Annotated, prior to their repeal, or article 55 of chapter 21 of the Kansas Statutes Annotated, and amendments thereto.

If a public record is discretionarily closed by a public agency pursuant to this subsection, the record custodian, upon request, shall provide a written citation to the specific provisions of paragraphs (A) through (F) that necessitate closure of that public record.” 

Conclusion

Adopting these amendments would better balance the interests of law enforcement and the public. They would allow subjects of police recordings and their family members easier access to such recordings.  They would do away with the archaic notion that a public agency is not required to duplicate audio and video for the public.  They would make clear that public agencies cannot quote an arbitrary amount of money as an “estimate” for providing access or copies.  They would clarify that law enforcement is never required to turn over criminal investigation records in an active investigation, absent one of the exceptions set forth in K.S.A. 45-254.  Finally, they would correct the imbalance in current law that allows law enforcement agencies to invoke the “criminal investigation records exemption” under virtually any circumstance.

Until these or similar changes to current are adopted, Kansas will remain the Dark State.

Max Kautsch is the Kansas legal hotline attorney for the Kansas Press Association, the Kansas Association of Broadcasters, and the Kansas Sunshine Coalition for Open Government.  Send him an email here.

Footnotes

[1]  in 2018, virtually any modern computer can use software that constitutes “duplication equipment.”  Free software for copying digital audio files options include Audacity, and there and there are lots of options for free video editing software, such as iMovie or Lightworks.

[2] MRS 610.026.2.  This change would clarify that a public agency can’t assess costs for fees prior to determining which records are available.  This is a troubling pattern.  For example, the KBI, in response to a request by Fox 4 News, sought to charge $4,025.00 as an “estimated cost” to undertake the review of documents requested, rather than first undertaking the review and then assessing a copy charge.  Letter from KBI, March 4, 2016.  In another instance, Leavenworth County quoted $1,934.52 as an “estimated” cost in its response to a request made by a member of the public this past November.  Letter from Leavenworth County, November 17, 2017.  The practical effect of responses such as these is that the requested records are simply unavailable because the agency is not complying with its implicit responsibility to assess the request before charging a fee.  The proposed language would make that responsibility more explicit.

[3] MRS 610.026.1(2)

[4] MRS 610.010(2)

[5] MRS 610.205.1(1), (2) and (3)

[6] Kansas statutes do not define “great bodily harm,” but the Kansas Supreme Court has found that  “’great bodily harm’ as ‘more than slight, trivial, minor, or moderate harm, that does not include mere bruising, which is likely to be sustained by simple battery.’”  State v. Cooper, 106,986 (Kan. Sup. Ct. 2017), citing State v. Green, 280 Kan. 758, HN 3, 765, 127 P.3d 241 (2006).

[7] Minnesota Statute 13.825, Subd. 2(a)(1).

[8] MRS 610.205.1; Okla. Stat. tit. 51 §24A.8(A)9, 10.

[9] Okla. Stat. tit. 51 §24A.8(A)9, 10.

[10] Minnesota Statute 13.82, Subd. 7.  Most of the italicized portions for the “Level 2” fix come from this subsection of Minnesota law, but I also incorporated familiar terms and references from KORA for the benefit of the legislature.  Missouri (MRS 610.100.1(3)), Florida (Fl. Stat. 119.011(d)), and North Dakota (NDCC 44-04-18.7.3) are among other states that make the “active/inactive” distinction.