Opaque NC review process delays video release in police shooting

Media outlets and others seeking police videos will face a more arduous court process to make those videos public under a North Carolina Court of Appeals opinion released Tuesday.

The court’s decision stems from a long-running lawsuit involving WRAL News and other media outlets seeking video from the death of Andrew Brown, who Pasquotank County deputies shot in April 2021 while trying to arrest him on drug charges. Brown, 42, was shot in the back of the head as he tried to flee in his car.

The local district attorney released some footage at a press conference in May 2021. That’s when he announced that the deputies involved wouldn’t face charges and that they feared for their safety as Brown sped away. WRAL News and a coalition of other media outlets have pushed for the release of all body camera footage and other video that law enforcement recorded or collected from the scene.

That process has dragged through the state court system, which decides whether to release police footage through a process that the state legislature laid out in 2016, then tinkered with in 2019 and 2021.

In November of 2021 Superior Court Judge Jerry Tillett denied release in the Brown case, saying the media coalition followed the wrong process and should have filed different paperwork.

The coalition appealed, and on Tuesday a unanimous panel of three North Carolina Court of Appeals judges backed Tillett’s interpretation, saying the state legislature laid out two paths for these video releases: An expedited one for people who appear in the videos and for families of people killed or injured, and a separate process for media and anyone else not involved in the case.

“Owing to the fact that hundreds — if not thousands — of petitions for release of law enforcement recordings have been filed across the state using forms developed by the Administrative Office of the Courts when the body cam law was passed in 2016, we’re surprised by the Court of Appeals’ finding that the forms are insufficient,” Tadych said in a statement.

Tadych also noted that Superior Court Judge Jeffery Foster, who oversaw the review before it was handed off to Tillett, said in an earlier ruling that the coalition had “filed an action” as required by state law. And Tadych said one of the Court of Appeals judges in the case, Judge John Tyson, didn’t note this procedural issue in a separate video release case he heard, even though the media coalition in that case used the same petition form.

Tadych said there’s a lot more rigamarole to filing a civil action compared to the petition form, including notice requirements that leave an open question. Police officers in a video can contest release, and civil actions come with notice requirements. Who must notify police officers who appear in a video that someone wants to review it, and how can filers know who appear in videos that they haven’t yet seen?

“It’s cumbersome with the forms,” Tadych said of the process. “It’s going to be a nightmare without them.”

Judge Jefferson Griffin wrote the Court of Appeals opinion released Tuesday. Tyson joined him in that opinion, as did Judge Jeffery Carpenter. They acknowledged that the petition form has been used this way before. They also said that, while state law specifically says families and others involved in a case should use the form, the section of the law on media requests doesn’t mention the form at all.

“We must construe the differences between these subsections materially,” the judges said. “If the legislature had intended an [Administrative Office of the Courts] form be used in conjunction with subsection (g), it would have instructed as such.”