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Interesting New Hampshire Case Testing Body Camera Transparency Rules

Closeup of gun on police officer's hip
Closeup of gun on police officer's hip
Jay Stanley,
Senior Policy Analyst,
ACLU Speech, Privacy, and Technology Project
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September 2, 2015

A legal battle is underway in New Hampshire over whether body camera footage of a fatal police shooting should be made public. And in a twist, it’s the family of the deceased that wants the footage kept under wraps.

So far as we know, this is the first case of its kind. On July 6, 2015, two police officers responded to call from the Town of Bath, where a man named Hagen Esty-Lennon, who may have been suffering from a mental health crisis, was armed with a knife after being involved in a traffic accident. The two officers, who were wearing body cameras, shot and killed Esty-Lennon. The body camera footage of the incident was requested by media organizations under New Hampshire’s open records law. Their request was initially denied by the Attorney General’s Office because the records were part of an ongoing criminal investigation. On July 31, the Attorney General’s Office concluded its investigation, finding that the officers were justified in shooting Esty-Lennon. That Office then stated publicly that it was going to release the videos. The family then filed a petition to block release of the videos citing their privacy interest—specifically in shielding Esty-Lennon’s two minor children (and other relatives) from exposure to a reportedly graphic video of their father’s death.

As body cameras spread throughout American police departments, access to the footage they capture—especially of critical incidents such as shootings—is becoming a key issue of contention. Too many police departments are seeking to keep footage under their own control, with the result that it is often being withheld from the public. At stake is whether body cameras will live up to their promise of increasing transparency, accountability, and trust in American police departments and officers, or whether they will merely become another tool for surveillance, and possibly for police propaganda as videos that show the police in a positive light are released by departments, while those that don’t, aren’t.

At the same time, privacy is obviously a huge concern with body cameras. We think that these two values, sometimes thrown into conflict by body cameras, can be squared, as we argued in our body camera white paper and model policy.

In the end, we think that in this case transparency and disclosure must trump the privacy, and the ACLU of New Hampshire has filed an amicus brief in this case arguing as much. As ACLU-NH legal director Gilles Bissonnette writes in the brief,

First-hand evidence of police actions, like the videos in question here, directly illuminates how police operate, helps identify potential misconduct by individual officers and poor policies or training by agencies, and allows the public to hold civic leaders accountable for problems. On multiple occasions, videos of police shootings have not only shed light on how and when police elect to use force, but also on police misconduct.

In addition, the use of force by police against those with mental illness is an important subject of public concern:

Given Mr. Esty-Lennon’s apparent mental health crisis, the videos in question would be especially valuable to the public to determine (i) what additional facts the officers knew that would have led a reasonable officer in such circumstances to conclude that Mr. Esty-Lennon was experiencing a mental health crisis, and (ii) what efforts or accommodations the officers did make or could have made, if any, to deescalate the situation (even if their actions were consistent with internal policy)….

The importance of the videos is also magnified by the fact that there is little other neutral evidence as to how the shooting transpired …. Mr. Esty-Lennon, tragically, is deceased. The police officers are obviously interested parties in the case. And there was only one witness to the shooting whose observations were, according to the Attorney General, “contradicted by the video.”

On the privacy side of the equation, the rights are outweighed by the public’s right to know:

Here, the only privacy interest that appears to be asserted is the need to protect Mr. Esty-Lennon’s two minor children (and potentially other relatives) from seeing the videos. The ACLU-NH does not discount the possibility that the videos may be seen by Mr. Esty-Lennon’s children, and the ACLU-NH is sympathetic to the prospect that such images could be deeply disturbing to them. But the interest in protecting two children—who, with appropriate supervision, can be shielded from seeing these videos by their guardian—should not trump the public’s right to obtain information that is important to evaluate the propriety of police officers’ use of lethal force and the adequacy of the Attorney General’s investigation.

There will undoubtedly be many hard cases and issues that arise around body cameras, pitting important values such as privacy and transparency against each other. In this case, at least, we come down on the side of transparency.

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