Racial Justice Movement And COVID-19 Pandemic Highlight Importance Of Police Oversight And Access To Judicial Proceedings

• Published date: 24 February 2022
• Subject Matter: Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Coronavirus (COVID-19), Trials & Appeals & Compensation, Media & Entertainment Law, Operational Impacts and Strategy
• Law Firm: Haynes and Boone
• Author: Mr Michael J. Lambert

Two important government institutions'police departments and the judicial system'largely function in a black box. Police conduct most of their day-to-day activities outside the watchful eye of the public. Judges, too, typically operate in empty courtrooms with limited public oversight. But since March 2020, the sunlight on these two government bodies has started shining brighter.

The COVID-19 pandemic and the racial justice uprising following George Floyd's murder provided new opportunities to observe government in action. Police body-worn cameras (BWCs) and videos taken by 17-year-old Darnella Frazier captured Floyd's brutal murder at the hands of the Minneapolis Police Department, raising awareness about the importance of a robust right to record police and the need for public access to BWC recordings. Social distancing requirements forced courts to revisit decades-old policies banning recording devices in courtrooms and accelerated live audio and video technology, providing the public a peek inside courts.

For these and other reasons, the issues of access to BWC recordings, the right to record police, and cameras in courts have received heightened attention the past two years. This article addresses recent events surrounding these three important issues, the current state of the law, and what it means for the future of police transparency and court access.

Access to police body-worn camera (BWC) recordings

Access to BWC recordings has lagged behind the drastic rise in BWC use over the past decade. As of 2016, nearly half of U.S. law enforcement agencies required BWCs, and police departments in many states, including California, Colorado, and New York, are required to use them. Yet access to BWC recordings is restricted in many jurisdictions. State legislatures have enacted a wide range of laws to determine whether and when BWC recordings are released publicly.

In Texas, for example, the public can submit written requests for BWC recordings, but there are many exceptions to disclosure under the state's Public Information Act, and police cannot release any portion of a recording made in a private space or a recording involving the investigation of a misdemeanor punishable by fine only and that does not lead to an arrest without permission from the person who is the subject of the recording. Other states feature a range of polices:

• California requires BWC recordings be released within 45 days of an incident.
• Colorado requires BWC recordings be released...