A blow to transparency in Alabama

Being party to a case that ended up shutting down the public’s chance to ever see police body camera video wasn’t exactly what we had in mind when Lagniappe took the Baldwin County Sheriff’s Office to the Alabama Supreme Court last summer. 

Fourteen months later, though, our suit has gone from just trying to determine how an unarmed man who ran off I-10 in 2017 ended up being shot several times by a deputy, to a precedent-setting ruling that puts a “do not disturb” sign on the knob and slams the door on anyone ever getting a gander at law enforcement video in this state. 

Honestly, I figured if the SC denied Lagniappe from gaining access to those videos of the minutes before Deputy Matt Hunady shot Jonathan Victor four times with a high-powered rifle, it would do so without comment. What came back this past Friday was not just a denial of our request to see those recordings, but an outrage to anyone who believes in public records and transparency. This ruling was nothing but a kowtow to the state’s sheriffs and police chiefs who don’t want you to see body cam footage, even as they pay lip service to transparency while asking for millions in tax dollars for the equipment. It also was a kick in the privates for media outlets trying to serve their watchdog function against law enforcement abuses.

What the ASC did, in a nutshell, was lump body camera footage in as “investigative materials,” so it can fit an exemption within the Alabama Open Records Act (ORA). Previously, “investigative materials” had been defined as the product of actual police work that could be withheld because it might damage a pending case. Now those investigative materials have been expanded to actually include the very thing being investigated. 

In this particular case, there are roughly 10 minutes worth of video preceding Victor being shot that Baldwin County Sheriff Huey “Hoss” Mack fought hard to keep out of public sight. That video is what was used by the Baldwin County Major Crimes Unit to investigate and quickly clear Hunady. 

The SC just assured every law enforcement official in Alabama that there is zero chance recordings of anything they might do wrong will ever become public. In essence, there’s really no reason for Alabama law enforcement officers to wear body cameras any longer. The millions spent on them in the name of “transparency” might as well have been flushed down the toilet. 

Chief Justice Tom Parker is apparently the only justice who cares about open records — at least in this instance. His office previously has denied us access to contractual and financial information between the state and ALACOURT. But it was nice to see Parker at least believes in open records some of the time. He wrote a blistering dissenting opinion in the 52-page decision, which he ended by saying the majority’s ruling essentially would render the ORA the “Closed Records Act.” 

“The sweep of these pronouncements is breathtaking,” he wrote. “In essence, all evidence in the possession of law enforcement agencies, whether created by the agency or received from others, is now exempt from citizens’ statutory right to access public records … With one sweeping stroke, today’s decision spells the end of public access to law enforcement records that are connected in any way to an investigation. After today, as to law enforcement agencies at least, the statute might as well be titled the Closed Records Act.”

The true irony of this ruling is it was made to deny access to records in precisely the kind of troubling case most in need of media scrutiny. 

Lagniappe was actually able to gain access to the footage and other documents from Victor’s shooting earlier this year when they became evidence in a federal civil case filed by his family against Mack and Hunady. But this is not a usual way to gain access to such material. We got lucky. 

What we found in all that footage and documentation Hoss Mack didn’t want anyone to see was tremendous confusion between 911 operators and dispatchers about whether Victor had a weapon or not. Video showed Hunady getting out of his vehicle, grabbing his rifle and posting up behind a fire truck ready to shoot. He and other deputies stood there for roughly 10 minutes. No one attempted to ascertain whether Victor actually had a weapon. This was a very preventable tragedy. 

But you don’t have to take my word for it. 

In denying Mack and Hunady qualified immunity in the civil suit earlier this year, U.S. District Court Judge William Cassady emphasized that a “reasonable finder of fact could conclude from this video that Victor did not take aggressive action toward Deputy Hunady or anyone else, and that he did not punch out his arms in a shooter stance.” 

Cassady also pointed out that no witness reported Victor was actually armed, just “possibly” armed. 

Cassady found the relevant facts included:

• No witness had reported to Deputy Hunady, either directly or indirectly, that Victor was armed, only that he was “possibly” armed.
• Deputy Hunady never attempted to follow up with any of the bystanders, first responders or Victor himself to ascertain whether Victor had a weapon.
• When Victor finally stepped out of the car, a reasonable fact finder could conclude that he was neither aggressive nor threatening to Deputy Hunady or anyone else.
• Video footage shows Victor taking slow, hesitant, halting steps in the muddy grass of the median, all of which is consistent with someone who has been injured in an automobile accident.
• Victor made no threatening statements.
• That there was no particular reason to believe the cloth-wrapped object in Victor’s hand was a firearm. A reasonable finder of fact could conclude from the evidence that it did not look like a weapon and that Victor was not brandishing anything in an aggressive or threatening manner.

The need for open records rests in the fact that society can’t trust governmental organizations to report their own failures. It is the rule, not the exception, that when those in public office screw up, they cover up. And Mack is an All-Pro when it comes to CYA. 

Let’s not forget that when the sheriff, District Attorney Bob Wilters and the Major Crimes Unit held a press conference a few months after Victor was killed declaring that Hunady had been cleared of wrongdoing, they showed a carefully curated portion of video. So what they decided to show apparently wasn’t “investigative material,” but what happened in the minutes before was? 

These investigators also blatantly manipulated the assembled media by telling them Victor had the narcotic ketamine in his system, purposely giving reporters the impression Victor was abusing the drug when he was shot. They probably expected no one to ever question them. In fact, though, the ketamine was administered by paramedics trying to save Victor’s life after he was shot. Mack and Wilters had to know that. 

This Supreme Court ruling was a defeat for transparency and for police reform. It was a victory for any law enforcement officer who abuses his office. It also creates more suspicion between the public and law enforcement. Citizens who may have felt less fear of being abused during an encounter with law enforcement officers because of the presence of body cameras can kiss that safety blanket goodbye. 

Hopefully, this ruling won’t be taken lying down. The Supreme Court, while trying to cover for the sheriffs and law enforcement agencies, may well end up forcing the issue. Certainly, the often comatose media outlets across Alabama woke up some last Friday, and they still have the ability to put the heat on members of the Legislature. Alabama’s useless Open Records Act needs to be rewritten. 

Otherwise, if this pitiful ruling is going to stand as the law of the land, just throw the body cams in the trash and stop wasting our money on them.