Outling dissembles

by Roch Smith, Jr.

Greensboro City Countil representative Justin Outling dissembles on city's police camera policy

Greensboro City Council representative Justin Outling dissembles on city’s police camera policy and demonstrates one of the traits people most despise in politicians, a willingness to distort and deceive to defend an unpopular position.

 

GREENSBORO, NC — Greensboro city council representative Justin Outling wrote a column defending the city of Greensboro’s recently adopted policy governing public access to police body-worn camera video in Sunday’s News & Record. The council rejected a popular alternative policy that would have given greater public access to videos in favor of one that makes access to videos difficult and arbitrary. Let’s break down Outling’s explanation.

“Greensboro recently became the first city in North Carolina to adopt a policy that provides guidelines for the release of police body camera footage to the public.”

Charlotte Police Department's body worn camera policy

Charlotte Police Department’s body worn camera policy, April 29, 2015

Right off the bat, Outling writes something that is highly misleading — and irrelevant. If by “adopt” Outling means to have a city council vote and approve a policy, that’s probably true, but other cities have had policies in place governing public access to police body camera video for a while.

This is an improvement for Outling who previously claimed that “There’s really no municipality that has a policy for any public release of police body camera footage” — an outright falsehood; Charlotte’s police department has had a policy since April of 2015. Greensboro is certainly not the first. More importantly, first is irrelevant. It has no bearing on whether the policy is good or not and Outling doesn’t explain the benefit of Greensboro’s council being the first to adopt a bad policy. First is a superlative that sounds good, but it is meaningful to the public only to reminds us that the policy was rushed.

“Given legal constraints and divergent views and interests, the road to adoption of the policy was a long and heated affair.”

The city’s policy was passed at a May 9th city council special session where it was not on the agenda. It was supposedly written by Outling, Mayor Nancy Vaughan and City Attorney Tom Carruthers. It had not been seen by council or the public prior to the motion to approve it. (No kidding.)

Citizens had presented an alternative policy, crafted by retired civil rights attorney Lewis Pitts, to the City Council on April 5th. Support for the Pitt’s policy had been gaining steam. Prior to the May 9th meeting, the public was told the policies were to be discussed again on May 23rd. At the May 9th meeting, Outling complained that the process was was taking too long. It had been under discussion for “a sixth of a year,” he complained.

thumb_human-relations-commission

Minutes from the May 5, 2016 Human Relations Commission meeting. The Commission voted 7 to 1 to back an alternative police body camera policy to the Vaughan/Outling proposal.

More likely than two months being too long was the fact that nobody in the public was standing up for the Vaughan/Outling proposal. People were coming to council meetings to speak in favor of the alternative “People’s Policy”, as Pitts’ policy had come to be known, but not for Outling’s policy.

Four days prior to the May 9th council special session, the city’s Human Relations Commission adopted a resolution in support of the “People’s Policy” by a vote of 7 to 1. Momentum was building for the more transparent People’s Policy and Outling’s policy was going nowhere in terms of public support.

It was amidst this growing support for the alternative to his policy that Outling found ongoing deliberations to be taking too long.

And “heated”? It wasn’t until the May 9th special session, when, in a surprise move, council member Jamal Fox moved for approval of the Vaughan/Outling/Carruthers proposal — a policy that nobody in the public or on council had yet read, including Fox, and got a second from Nancy Hoffman, who also had not read it — that things became heated. (It is worth noting too, that councilor Mike Barber, also an attorney, who has argued in favor of streaming body camera video to the internet in real time, was out of town and absent from the meeting.)

As council began to discuss the policy, people in attendance who were in support of the alternative policy, who had been in good faith discussions with council and who were told that the next consideration of the policy would be on May 23rd, asked to be heard on the matter. Mayor Vaughan denied the requests. She said the meeting was a work session and there would be no public comment, which itself was incorrect as the meeting was not a work session, where public comment is often not accommodated, but rather a called special council meeting (originally to discuss the budget), where public comment is a matter of course.

Although Vaughan insisted there would be no public comment, when a former police officer stood up and asked to be heard, she allowed him to come to the podium and speak. All others were denied. It was council’s sudden contempt for fairness that made things heated, not the subject.

Contrary to what Outling would have us believe, consideration of the policy was not long. It was cut short with a disrespectful betrayal of public trust as public opinion was coalescing around an alternative. And it had been remarkably respectful until council embarked on its end run in order to cut off the growing support for an alternative.

“However, Greensboro’s policy:

  • Provides for disclosure to those people who have the greatest interest in the footage (people in the footage).
  • Protects privacy and public safety interests.
  • Contains a mechanism for releasing footage to everyone when the footage affects our entire community.”

Had Outling and his colleagues cooperated with the public and allowed discussions to continue, the faults of these presumptions could have been addressed. As it is, they contribute greatly to the weakness of the adopted policy.

Who is to say that the people in police footage have the greatest interest in it? Christopher Michael Tokazowski is dead from a police gunshot. The greatest interest in videos recording the circumstances of his death does not belong to the person in them. Media and watchdogs have an interest in them though. The Washington Post has asked for body camera videos from this shooting. One wonders, their interest is subordinate to whom in this real world case?

A suspect with a black eye after arrest by the Greensboro Police Department. Should the public have a right to see video recording his arrest?

A suspect with a black eye after arrest by the Greensboro Police Department. Should the public have access to the video recordings of his arrest?

The presumption that the release of video must meet some standard of affecting “our entire community,” is also faulty. First, and most glaringly obvious, is that we cannot know what may affect our entire community if we cannot see it. Outling offers up this logic pretzel as if it is a benefit. Forget that this condition is arbitrary — what is the standard for “affect”? And forget that the condition of our “entire community” is impossibly large — why should video be any less accessible if only some segment of the community may be affected?

If a suspect’s mug shot shows him with a fresh back eye, there is plenty of opportunity for the city to withhold that video under the rationale of the policy Outling supports. Those who think that people in a democracy have not just a right, but a responsibility to monitor and understand how force is being deployed in our names will see it as imperative that video of violent arrests be public even if, perhaps especially if, their significance is in showing that police acted properly. Outling’s policy keeps that decision of what is significant away from the public.

Under North Carolina law, the records created by our government belong to us. They are ours to access and we can decide for ourselves if they are significant. It is not the job of the custodian of the record to apply some arbitrary consideration of public benefit before giving people access to the records created on our behalf.

“Greensboro now stands alone as the leader in the state on the topic.”

Greensboro is not alone (other cities have polices) and it has not led. Indeed, the notion that Greensboro has led on this matter is an artifice. In an environment where state statutes and the lack of case law have left open to interpretation the extent to which police body camera video could be available to the public, the Vaughan/Outling/Carruthers policy chose to conform to conservative and restrictive interpretations.

Far from leading, the adopted policy borrows heavily from a bill proposed in the State House by John Faircloth (R – Guilford County). In fact, the city’s policy copies Faircloth’s criteria for determining whether to release a record word-for-word from his bill.

Outling and his colleagues did not lead. They cowered, failed to take an opportunity in favor of transparency and accountability and followed a Republican legislator’s onerous example. For Outling to say Greensboro led is to demonstrate no understanding of the meaning of leadership.

“In 2014, Chieu Di Thi Vo was fatally wounded by Greensboro police Officer Timothy Bloch. While Bloch said he shot Vo because she charged at him with a knife, some people questioned whether Bloch’s actions were reasonable. Certain media and activists responded by asking for the police to publicly release the video of the shooting, as surely the footage was a “public record.” Similar requests followed for footage of other incidents. What appeared to be a straightforward issue, however, was anything but.

“Consistent with the analysis of the UNC School of Government, Greensboro’s city attorney previously concluded that all body camera footage legally constituted criminal investigative and personnel records based on the legal definition of public record. Therefore, the only way the footage could be provided to the public was if the officer or officers in the footage consented to its release, or if both the city manager and City Council determined that releasing the footage was necessary to maintain the public’s confidence in the city.”

Pause here to remember that Outling explains that the City Attorney made a determination that “all body camera footage legally constituted criminal investigative and personnel records based on the legal definition of public record” and that “the only way the footage could be provided to the public” is in the limited situations described. Hold that in your head, it will be important in a minute.

“Further, assuming for argument’s sake the footage did constitute a public record, there would be no legal grounds upon which certain truly private information shown could be redacted or withheld from public release. A nosy neighbor, for example, could obtain video taken in a neighbor’s home and post it on YouTube. A teenager’s error in judgment captured by a police camera could be shared with the world, ruining the teen’s bright future and employment prospects.” (Emphasis added.)

This is another blatant falsehood wrapped in a misdirection. There are existing state and federal laws that protect these kinds of information from disclosure. In fact, the City’s adopted policy, supposedly written in part by Outling, explicitly refers to them, requiring evaluations of whether “the recording contains information that is otherwise confidential or exempt from disclosure under State or Federal law.” (Emphasis added.)

woman-shock-surprise-embarrasThe City’s own policy that Outling helped write requires consideration of the very laws Outling tells the public in his newspaper column do not exist.

In genteel Greensboro, bluntness is frowned upon, so forgive me those of you whose tender sensibilities are about to be upset, but this is one hot steamy pile of crap Oulting tries to dump on the public right here. One might even call it a — gasp — lie. I would. I do.

The laws governing release of truly private information would not be overturned by a city policy, whether that policy is Outling’s or Pitts’. Police records of juveniles, for example, are already confidential, Outling’s fear mongering not withstanding. The public should wonder why Outling favors a policy that makes getting video recorded on a public sidewalk as hard to get as video recorded in a home and why he would lie about the reason.

If Outling’s concerns were genuine, a more focused approach could have been taken to address them. Instead, Outling justifies the overall secrecy and oppression of public access created by his policy as necessary for these special circumstances and wrongly — deceitfully — says that without them, there would be no legal grounds by which “truly private” information could be withheld.

“Thus, over the course of several years, only once had body camera footage been released to persons outside of City Hall without officer consent.

“Over the past six months, however, the City Council has worked to accomplish what no other city in the state has: adopt a policy that provides as much video to the public as reasonable and allowed by law. Getting there required the council to navigate complex legal and policy issues and to balance sometimes competing considerations of public safety, transparency and privacy.”

This is really some remarkable rhetorical jujitsu here and where Outling’s real skills are on display. Let’s unpack this by remembering that, above, Outling wrote of the City Attorney’s determination that “all body camera footage legally constituted criminal investigative and personnel records based on the legal definition of public record.” And remember that, above, Outling wrote that, by law, there were only two circumstances where these videos could be released:

  1. If the officer(s) “in them” consented.
  2.  If the City Council and City Manager agreed their release was in the interest of maintaining public confidence.

Yet, now Outling, a few paragraphs later, claims that council has come up with a policy that provides as much video to the public as “allowed by law.” Here is where a slight of hand comes into play: If the City Attorney was correct previously about what the law says, then any city policy that is touted as providing as much access as the law will allow is just a waste of time — a set of bureaucratic instructions offering nothing more than tedium on the way to the same secrecy as before. The law is the law, regardless of city policy. This is what Outling calls a “first” and “leadership” even though it doesn’t change anything.

Council could have just saved everybody a lot of time and trouble if it had merely said, “We agree with the City Attorney’s interpretation of the law.”

On the other hand, if the policy wasn’t a waste of time, if it is legal to release video in circumstances beyond the two instances Outling cited, then therein is an important admission: The law is open to interpretation and the city’s hands are untied. With this understanding one finds significance in comparing the City’s adopted policy that provides for great latitude in denying public disclosure and the Pitts policy that provides wide latitude in favor of public disclosure. If the law is not so cut and dry — “No case law on point,” as the City Attorney said in one of his more candid moments — then the city squandered an opportunity to create a policy that would have granted true transparency.

“In March, Mayor Nancy Vaughan and I introduced a draft body camera footage policy. It provided that people or their heirs could review any video in which the persons were depicted.”

Here is the draft policy Vaughan and Outling introduced in early March. Read it. It’s short. Despite Outling’s description, nowhere in it does it provide for the heirs of people depicted in video to be able to review the video. Bad memory or another misrepresentation? You decide.

“Further, footage could be released to others in the public upon a vote by the City Council that doing so was necessary to maintain public confidence.”

This is a provision already existing in state law, so putting it in a city policy is about as meaningful as planting a turd garden.

“The draft policy was then extensively discussed throughout the community and at multiple City Council and City Council committee meetings.”

The subject of police body camera public access came up at several council meetings, especially since it often coincided with discussion about whether to release video from 2014 recording a woman being shot by a police officer. Discussions also included praise and support for Pitts’ policy. The scope of discussions went well beyond the Vaughan/Outling draft with the public led to believe they would continue and promised that the issue would be taken up again on May 23rd.

“Further, the policy was the subject of many media reports and editorials.”

None favoring any of the Vaughan/Outling proposals.

“Notwithstanding the ACLU of North Carolina’s public statements of approval of the council’s action to balance privacy and other interests, some community members expressed desires that the policy provide for even greater disclosure without a City Council vote.”

This is deceptive. While it is true that the NCACLU has said there is a need to balance privacy and public access, it at no time put its stamp of “approval” on the policy Greensboro adopted. A representative of the NCACLU did say, in a presentation to city council, “The very purpose of body cameras is to inject transparency into interactions between police and the communities they serve,” a goal stymied by the policy Greensboro adopted.

“In April, the mayor and I introduced another draft policy, taking into account both existing legal constraints and the community feedback we received on the policy previously introduced. This month, in a special session, the council adopted this revised policy (with two minor revisions proposed by the city attorney) and voted to release the footage of the 2014 Vo shooting.” (Emphasis added.)

Two minor revisions? What a crock. Compare the April version with the adopted version.

April 15, 2016 Vaughan/Outling body worn camera policy draft

April 15, 2016 Vaughan/Outling body worn camera policy, draft

 

May 8, 2016 Vaughan/Outling/Carruthers body worn camera policy, adopted.

May 8, 2016 Vaughan/Outling/Carruthers body worn camera policy, adopted.

But for each having the same eight criteria copied from Faircloth’s proposed state legislation, there are hardly any similarities at all. Yet Outling says there were only “two minor revisions” made between the last publicly-seen draft and the surprise version adopted at a meeting where it was not on the agenda, had not been read by council members, had not been seen by the public and where the public was denied an opportunity to comment.

Like so much of Outling’s defense of this bad policy, this explanation could not be further from the truth.

“The City Council will continue to evaluate the effects and effectiveness of the policy and weigh legal and other issues. As reflected by recent unprecedented action, it is clear that Greensboro is not afraid to tackle tough problems with action and urgency.”

Here I agree with Outling. This is unprecedented.

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7 Comments on "Outling dissembles"

  1. SAL LEONE | May 31, 2016 at 4:23 pm |

    When will people learn, council lies and if one is a lawyer then they lie better. The whole fault is with the Mayor, she is the guiding force on council, who we going to blame, Billy Jones or the Mayor for video not being released.

  2. Louis Beveridge | May 31, 2016 at 5:19 pm |

    Our city council blew it on this super critical issue. This was rushed solely because our councilman who is a cross between Alex P. Keaton and Clarence Thomas wanted notoriety. And it was done to create public confidence. Not even close. The only thing that could be worse is if they allowed a police officer to lie, charge citizens with a crime, have the city manager apologize for the police officer’s actions, pay the citizens $50K and not fire the officer who lied and abused his police power. I don’t think this group of people has what it takes to govern this city.

  3. Walle, A. | May 31, 2016 at 6:11 pm |

    What a disappointment Outling turned out to be–he’s hanging ten with the Tighty Whiteys, per tradition–which isn’t good for anyone not affiliated with private interests. That entire Council, if not the majority of the city, by now–knows the GPD’s corrupt relationship with Kotis Properties’ Westerwood Neighborhood Association: anyone “without money” should immediately go to County for muscle–do not be intimidated by that Department, nor anyone from the WNA; a lack of leadership has already been said enough–Jim Westmoreland is another fine story-teller who’ll bring tears to your eyes should you listen long enough.

  4. SAL LEONE | June 1, 2016 at 8:30 am |

    Why is everyone shocked at the Games of Council as I call them. The reason Justin was picked to replace Zack is he is willing to play Nancy’s and council games. The whole body camera saga is a game for council, they could careless. The sad part is the stupid people will vote for them again.

  5. SAL LEONE | June 1, 2016 at 7:49 pm |

    I just hope people give Outling a break, he is playing the game for others on council, does anyone really think this is all his idea or maybe he is just the fallguy.

  6. nancy watterson | June 1, 2016 at 10:35 pm |

    Excellent piece, Roch. Thanks.

  7. You are welcome, Nancy. Thanks for reading.

Comments are closed.