Video changed everything, right?
Critics and supporters alike praised the Memphis Police Department six years ago when it launched its Body Worn Camera program, a multimillion-dollar initiative that promised to revolutionize policing with a new age of transparency and accountability.
In many ways, it’s done just that.
Bodycam footage has documented multiple incidents of police misconduct. It’s also helped expose bogus claims. As MPD’s Policy and Procedures Manual states, bodycams add “further clarity and transparency” and help “improve community relations’’ with “an objective record that can … confirm valid allegations’’ and “assist in disproving false allegations.”
But problems remain. Although bodycam footage is a public record theoretically available to any Tennessee citizen, it can be extremely difficult and costly to obtain.
That’s why I’m suing the City of Memphis.
A lawsuit I filed Tuesday in Shelby County Chancery Court seeks the release of videos from the bodycam of MPD patrolman Colin Berryhill, who came under internal investigation for using his department-issued Taser on a series of citizens, including one detained for driving on a suspended license. Berryhill electro-shocked him as he lay in handcuffs on the ground, reports say. The officer’s repeated use of his Taser led a lieutenant to dub him ‘Taserface’, after a Marvel comic book character.
Potentially, the lawsuit filed on my behalf by lawyers with the Reporters Committee for Freedom of the Press’ Local Legal Initiative has far-reaching implications. If successful, it not only might improve access to bodycam footage, it could open up internal police investigations that now are conducted in secret.
City officials denied requests I filed under the Tennessee Public Records Act for the footage, contending it was part of an open Internal Affairs investigation. Officials indicated they were relying on Rule 16, a Tennessee Supreme Court dictum that exempts records of open criminal investigations from public inspection.
But here’s the problem: Investigations by MPD’s Internal Affairs unit aren’t criminal investigations. Other units of MPD, including its Security Squad, conduct criminal investigations. But Internal Affairs conducts administrative investigations that, at best, result in disciplinary action, not criminal charges.
We contend the city has no legal basis to withhold these records.
Although the city will release Internal Affairs records upon request once an investigation is closed and a decision has been reached, we contend the failure to release records in ongoing disciplinary matters is detrimental to the public interest. Secret proceedings that offer transparency only after the fact don’t instill public confidence.
Consider the case of officer Enis Jackson, who was found by internal investigators to have violated MPD’s use-of-force regulations when he placed a 15-year-old girl in an apparent chokehold, lifted her off the ground and carried her across a street. As I reported in November, the finding against Jackson was reversed by a commander in a closed administrative hearing – part of the 38 percent of excessive force findings that are reversed or amended by commanders at disciplinary hearings, all outside the public eye.
We later obtained bodycam footage of the incident and showed it to Bill Smock, a medical doctor on staff with the Louisville Metro Police Department and an expert on strangulation.
“I think you have a problem in Memphis,’’ Smock told me. “And clearly, if this is how the use of deadly force is investigated, I think the Memphis Police Department needs to reevaluate their process.’’
MPD charged $161 for that footage and wants $3,900 to release videos in 13 closed cases we’re reviewing as part our running investigation of excessive force. My lawsuit likely won’t immediately lessen such costs, which are prohibitive for most citizens.
But the suit is part of a long yet fragile tradition of journalists suing for access to information, a newsgathering tool that can push secretive government officials toward greater transparency.
When I was a reporter at The Commercial Appeal, I sued for access to records documenting the theft and abuse of millions of dollars intended for poor children in subsidized day care. The suit led to a landmark Tennessee Supreme Court ruling used recently by The Marshall Project and other news organizations to gain access to public records held by nongovernmental entities. I sued the FBI, too, for access to civil rights photographer Ernest Withers’ informant file, revealing long-held secrets on the corrosive surveillance that the FBI and MPD directed at citizens engaged in political dissent.
Back then, news organizations like The Commercial Appeal had big budgets, and we frequently sued government agencies for access to records and meetings. Those budgets dried up. There isn’t much money to file suits anymore. In my view, that’s a big reason why it’s often so hard to get records now. That check on government power is greatly diminished.
Here’s another difference: When I sued, The Commercial Appeal sued with me. They paid all the bills and appeared in my suits as a co-plaintiff. My current employer, The University of Memphis, can’t do that for a variety of reasons. Though my articles appear in The Daily Memphian, it’s not a plaintiff either. They don’t employ me. So, they lack standing. It’s just me in this suit.
This is a creative approach to an old concern. But with pro bono assistance from the Reporter’s Committee and its new Local Legal Initiative designed to help journalists in Tennessee and four other states defend their rights to gather and report news, we hope to re-energize journalists’ power to use the courts to help keep government open and accountable to the public.
As for police body cameras, video indeed is a game changer. Seeing is believing.
But the public must in fact be able to see it – quickly and inexpensively – before they invest in believing that government indeed is working in their best interest.