D.C. Police Union Goes to Court to Stop New Law Releasing Body-Cam Video

Fritz Mulhauser | August 11, 2020 | Last modified: December 1, 2020

UPDATE 11/30/20: The case will come up for a hearing January 15, 2021, on whether to end it early. The union amended its complaint in the summer augmenting claims officers are endangered after release of video showing them at work. In turn, the government asked the court a second time to throw the case out. And a group of organizations (Public Defender Service, Law4Black Lives DC, Washington Lawyers’ Committee, ACLU of DC) asked to file an amicus brief strongly arguing the need for transparency as part of police accountability. (The union opposed saying they weren’t allowed by the rules and offered nothing useful.)

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The D.C. Fraternal Order of Police, the union representing over 3,000 officers, filed suit late Friday afternoon (August 7) in Superior Court asking for an immediate order to halt mandatory release of video from police body cameras. D.C. Superior Court Judge Hiram Puig-Lugo a few days later (13) rejected the union request for urgent action on the case finding no immediate harm was likely..

New D.C. law passed by the Council July 8 and approved by the mayor July 22 requires video be released quickly in future police shooting deaths and other serious use-of-force events. (Partial videos released July 31 were from earlier incidents, also required by the new law to be released now.)

The Council acted to speed up public access after hearing testimony about failure of the camera program to assure the public that police follow the law and do their jobs correctly.  A fall 2019 hearing showed in the years since the program began in 2014 the mayor has rarely released video and public access has been plagued by long delays and high fees.   

The union lawsuit says there is no public interest in mandatory release of police video and the court should therefore restore the mayor’s inherent public safety powers to decide about video release. Mandatory releases, according to the union lawsuit, interfere with investigations, threaten witness safety, and invade officers’ and civilians’ privacy. Court papers cite no evidence of harms from any past video release, resting the urgent request for action on speculations about possible problems for prosecutors, police and civilians.  

The complaint and accompanying memo seeking a Temporary Restraining Order quote extensively from a July 8 letter to the Council from Michael Sherwin, Acting U.S. Attorney for D.C. (Under unique arrangements, almost all local D.C. crimes are prosecuted by this federal official named by the U.S. Department of Justice. District voters by a ballot measure in 2002 called for a locally elected “district attorney” who would reflect local criminal justice values and priorities. Congress held a hearing on needed congressional approval in 2008. But it’s never happened.)

Sherwin, until recently a federal drug and terrorism prosecutor in Miami and described by the Post editorial board as a “favorite” of Attorney General William P. Barr, cites no facts or law. His letter is five pages of disagreements with policy choices of the D.C. Council and warnings of problems ahead, for example:

• video showing officers using force has potential to “create a narrative” that “may lead witnesses to a conclusion that can affect their testimony”;
• video can also “unjustly malign” officers if later review shows their actions were lawful.

Keith Alexander and Julie Zauzmer wrote up the case for the Washington Post, including an exchange with Councilmember Charles Allen (D-Ward 6), chair of the Committee on the Judiciary and Public Safety that developed the new law:

“Police officers are lawfully allowed to seriously injure or even kill under certain circumstances, but before the Council’s emergency bill passed the public was rarely given even basic information about what happened in these serious cases – thus few independent tools for accountability exist,” Allen said in an interview.

“I’m at a loss as to why the FOP thinks officers’ names should be hidden when police disclose the names and likenesses of suspects daily. Surely there’s greater public interest when the government takes a life or exercises force on residents and visitors?”

Police union leader Greggory Pemberton harshly attacked elected officials’ motives for police reform legislation in an August 5 statement at the time of filing another suit (in federal court, challenging Council action removing discipline from collective bargaining).

Said Pemberton, “The Council and Mayor. . . have made clear that the current climate prevents them from acting in a reasonable and rational manner, instead requiring blatantly arbitrary legislation to preserve their own political survival.”

Eliza Berkon reported on the lawsuit for DCist. In Washington City Paper Amanda Michelle Gomez and Mitch Ryals reported on the subject Thursday (13) with extensive reactions to the video release from affected families and police (also comment on the police lawsuit by Open Government Coalition president, Thomas Susman).

The Post editorialized Thursday afternoon. calling the Council action justified and the union effort to stop it (and the Sherwin letter) “specious.” Said the editors, “both ignore a world in which authorities have routinely tried to cover up unwarranted police shootings.” The opinion called the victim veto “sensible” and also urged consideration of witness identity protection when permanent legislation is crafted. But it concluded strongly that “the days are over when the public will accept a code of silence designed mainly to shield police from accountability.” The paper’s Keith Alexander also reported the hearing Thursday night.

The D.C. Open Government Coalition welcomed the Council action on prompt video disclosure. It is consistent with the growing public pressure for police to show they obey the law while fighting crime. The Coalition advocates even greater access: further expanding the mandatory release as well as reducing excessive redaction and related high fees that now frustrate public FOIA requests for body-cam video.

The case is Fraternal Order of Police v. D.C., No. 2020 CA 003492 B. It is assigned to Associate Judge William M. Jackson. The lawsuit requests a quick hearing for an immediate Temporary Restraining Order. The court is not open but hears such matters in virtual sessions. Initial scheduling is set in November. The complaint (with the U.S. Attorney letter) is here; an expanded memo seeking the TRO is here. The District’s opposition and the union reply are here and here.