Law enforcers are getting around the transparency of body-worn cameras

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It was recently reported (StarTribune.com, Feb. 25) that the Hennepin County Sheriff’s Office was reviewing the actions of two deputies (still on active duty as of the publishing of the article) after a video was posted to Facebook showing the deputies repeatedly hitting a person who was handcuffed, on the ground and incapacitated. The person was helpless while they were assaulted by the police. The only reason the public saw the video capturing the assault is that it was taken and posted by a bystander.

For years police have been required to wear body cameras documenting their interactions. But recently, there has been a coordinated effort to keep those videos from ever being seen by the public.

In 2019, the county approved more than $5 million to pay for body-worn cameras for all Hennepin County sheriff’s deputies. Body camera videos are strong evidence-collection tools for both police and prosecutors. Such video can protect police officers from false claims of abuse or misconduct. However, it can also substantiate claims of police abuse or misconduct that people might not be willing to believe if they weren’t captured on video.

After Derek Chauvin and other Minneapolis police officers were held accountable in the death of George Floyd, there’s been an increased effort to keep body-worn camera video from getting to the public.

The Hennepin County Sheriff’s Office and many other agencies across the state, and the Minnesota Police and Peace Officers’ Association, have started arguing that the Minnesota Government Data Practices Act shields the public from getting access to the videos of any officers who are assigned to an undercover unit, even if the officer is not actually working in any type of undercover capacity. This is a misapplication of the law.

The Minnesota Government Data Practices Act was passed to afford the public greater access to government data and increase transparency. The act creates a presumption that government data is public and should be accessible to the public. There are certain exceptions to that presumption. One of the exceptions is for police to be able to do their jobs effectively — including letting undercover officers work in an undercover capacity. Examples of this would be an officer who is posing as a civilian to buy drugs to build evidence against the drug dealer, or an officer who is posing as a sex worker to help arrest someone illegally profiting off of sex workers.

But the Hennepin County Sheriff’s Office has been taking advantage of these intended protections by broadly categorizing any deputy who works on certain units as undercover. The two deputies seen in that viral Facebook video are likely classified by the sheriff’s office as “undercover.” Even though they are on the street, in police gear, holding themselves out as police and making an arrest. They are not trying to pose as anything other than police officers. Yet, in recent months we have seen their office claim those individuals are “undercover” for the purposes of the Data Practices Act. That classification prevents the public (and press) from accessing their body-worn camera videos.

Unfortunately, these “undercover” classifications are being condoned by the Hennepin County Attorney’s Office and a lot of Hennepin County judges. The Hennepin County Attorney’s Office now refuses to release body-worn camera videos in certain criminal cases unless the defense agrees that the video will not be shared, copied or distributed.

When someone is arrested and charged with an offense, video of their arrest is part of the information, or discovery, that they are entitled to receive and review as part of the evidence in their case. Yet prosecutors are refusing to provide these videos with the rest of the discovery. When prosecutors refuse to provide discovery, judges are authorized to intervene and order them to turn it over. However, Hennepin County judges have been siding with the Sheriff’s Office and the prosecutors and only ordering the videos disclosed if they are subject to conditions. One of the common conditions is that they cannot be shared with the press.

Two police officers were seen on video punching a defenseless person in the head. There’s no legal or moral justification for their actions. They constitute assault. Those officers have not been charged, they have not been arrested, and it appears as though they are not even being disciplined. The only reason it made the news is that a bystander was brave enough to stand up to them, in the face of their threats, and film and post their actions online.

The police have reportedly determined (StarTribune.com, Feb. 28) that that the deputies' use of force was “justified.” The police have defended their actions by claiming that the man on the ground had drugs and a firearm. The Hennepin County Attorney’s Office has refused to press charges because it believes that the officers’ actions will make any evidence the officers discovered inadmissible in court.

In this instance, a prosecutor agreed that there was not probable cause to stop this person, but in the next case, a different prosecutor could see it differently. In the next case, there may be no bystander video drawing public attention and pressure on the prosecution to fully analyze the case before they move forward with charges. There could be no viral video, and no article about it at all.

If we want the police to behave differently, they have to start being held accountable for their actions. Requiring police officers to wear video cameras, then keeping that video secret, defeats the goal of accountability. When two police officers who are wearing cameras recording their actions still make the decision to assault someone in broad daylight, it’s time to take a closer look at the systems of accountability that we have in place.

Amanda Brodhag and Raissa Carpenter are assistant Hennepin County public defenders.