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September 19, 2017

Why the Case for Public Access to Police Camera Footage is Not a Moot Point

When is a right not a right?  When you can’t get the courts to enforce it soon enough to do you any good.

That’s what happens when a government agency delays providing information the public is entitled to, then releases the information before the courts can rule on whether the agency acted properly.  It’s like Lucy holding the football for Charlie Brown to kick it, then yanking it away at the last minute.  Charlie falls for it every time.  Only in this case Lucy is the Minnesota Bureau of Criminal Apprehension (BCA), and Charlie is our court system.

On July 6, 2016, St. Anthony police officer Jeronimo Yanez shot and killed Philando Castile, an unarmed 32-year-old African-American man.  When ACLU-MN demanded the release of the dashboard camera videos of the killing, the BCA refused, despite the classification of the videos as Arrest Data, which “shall be public at all times” under the Minnesota Government Data Practices Act.

The case wound its way through the court system for nearly a year without any appellate decision. On June 20, 2017, after nearly a year of public protest, uncertainty, and grief, the BCA released the video—just before the Minnesota Court of Appeals was about to consider whether the BCA had violated the law by withholding the videos.  By keeping the videos secret, then releasing them before the Court of Appeals could get its hands on the case, the BCA and the other defendants accomplished exactly what they wanted:  They were able to ignore the Data Practices Act and defeat the public’s right to know.

Just like the sneaky Lucy, the BCA keeps doing the same thing over and over.  It yanked the football away from the Hennepin County District Court when the ACLU-MN demanded to see the videos of the fatal shooting of Jamar Clark.  Just before the court was about to rule, the BCA released the videos.  And it is now withholding videos of what happened just after the fatal shooting of Justine Damond in an alley in south Minneapolis. 

This has to end.  In the Castile video case, ACLU-MN has appealed to the Minnesota Supreme Court to reject the BCA’s argument that, because it released the videos after keeping them secret for almost a year, the case is “moot.”  Courts often hold that, if any decision they reach wouldn’t matter because the controversy has disappeared, the case should be dismissed as moot, that is, a waste of time.  But a case is not moot if the challenged conduct is “capable of repetition,” yet “evading review.” 

That is exactly what happens in these cases.  The BCA “temporarily” classifies the videos as “investigative data” that it is entitled to keep secret.  But “temporarily” seems to mean “for as long as we can hold onto it without getting a bad court decision.”  It’s obvious that this conduct is “capable of repetition” because it keeps repeating itself.  And it has been “evading review” for way too long.

The Minnesota Supreme Court now has the chance to require the BCA to reveal to the public government data that will allow victims, their families, and the public to make informed judgments on matters of great public interest.  We hope the court will take advantage of the opportunity, hold that the Castile-video case is not “moot,” and rule that the BCA can’t hide behind the temporary “investigative data” rubric to limit the public’s right to see the actions of police, who are supposed to be protecting them, not killing them.

The justices should not let Lucy yank the ball away this time. They should give it a good kick.

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