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N.C. Supreme Court sends police body camera litigation back to superior court judge Andy Hanford

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The state’s highest court has decided to give a local superior court judge another crack at a contentious request for video footage that Graham’s police force had captured during an ill-fated “march to the polls” some three and a half years ago.

In a formal ruling on Thursday, a five-member majority of N.C. Supreme Court agreed to let Alamance County superior court judge Andy Hanford take a second look at this request for body-camera footage that a coalition of news outlets had sought after the march went sideways in the fall of 2020.

Hanford had originally ordered the footage to be released in its entirety, despite strident objections from the top brass at Graham’s municipal police department. His order was eventually quashed by a divided three-judge panel which heard the case on behalf of North Carolina’s Court of Appeals.

This appellate court ruling has been partially overturned by the state supreme court’s decision, which associate justice Trey Allen authored on behalf of the court’s 5-member majority. Yet, Allen also chastises Hanford for being too generous in his earlier order, which disregarded the judge’s own qualms about the potential impact of the uncensored body cam footage.

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In any event, this ruling marks something of a turning point in this high-profile case, which has tested the legal parameters of a state law that limits public access to video footage which law enforcement agencies record in the field using the relatively new expedient of body-worn cameras.

[Story continues below photos.]


Scenes from the October 31, 2020 march and protest in Graham

The march down North Main Street, here paused at Harden Street.
Shown are two Graham police officers monitoring the event in Court Square on Oct. 31, 2020.
Regis Kishon “Shon” Green before his first arrest later on October 31, 2020 during a march and rally in downtown Graham. Here, Graham police direct Green to get out of the street. When protesters did not respond to that directive, Graham officers used pepper spray, aimed at their feet, to get them to comply. Later sheriff’s deputies and police would use pepper spray to force protesters to disperse from the courthouse grounds when the rally was declared unlawful after a gas-powered generator and two gas cans were discovered, in violation of the permit issued to the demonstration’s organizer, Rev. Greg Drumwright of Greensboro.
Rev. Greg Drumwright on October 31, 2020 in front of the Historic Court House – prior to the rally’s termination by Alamance County sheriff’s deputies.
A photo provided by Alamance County sheriff’s office, showing Drumwright reaching in to stop deputy from removing the gas-powered generator at his rally on October 31. The permit explicitly prohibited anything other than a battery-powered generator.
Drumwright’s subsequent arrest on Oct. 31, 2020

 

At issue in this particular matter are recordings from body cameras that members of Graham’s municipal police force wore when the aforementioned march to the polls passed through downtown Graham on the last day of early voting before the general election in 2020.

One of several “racial equity” demonstrations that followed the murder of George Floyd that May, this march had been permitted by the city’s police department with stipulations that the department later insisted the event’s organizers had shrugged off. The march nevertheless went off largely without a hitch until it reached Court Square, where police deployed pepper spray in an apparent attempt to herd the 200-strong crowd out of the street and onto the grounds of Alamance County’s historic courthouse for a rally that was scheduled to follow the march.

By the time the dust, and pepper spray, had settled, nearly two dozen people had been arrested by either the city’s police officers or the sheriff’s deputies who aided them in dispersing the crowd. In the meantime, the allegedly heavy-handed actions of these agencies led to years of legal entanglements for both Graham’s police department and the office of Alamance County’s sheriff.

Among the upshots of this contentious episode was a public record request that several news outlets filed in 2021 in order to obtain body-camera footage that members of Graham’s police force had recorded during the dustup. (A similar request to the sheriff’s office fizzled out due to that agency’s former resistance to equip deputies with cameras).

Led by the McClatchy newspaper chain, whose more notably holdings include the Raleigh News & Observer, these news outlets met with firm opposition from municipal officials in Graham. They had better luck, however with Alamance County superior court judge Andy Hanford, who ordered the city to release the unredacted body cam footage in the spring of 2021. Hanford issued this order based on his reading of the relevant statute, although he acknowledged that the move may pose legitimate risks to the safety and reputations of people who appeared in the footage.

Hanford’s order was later vacated by a three-member panel with the N.C. Court of Appeals, whose 2-to-1 ruling argued that the trial court judge had improperly presumed that McClatchy and the other news outlets had the same right to request body cam footage which law automatically extends to people who are actually depicted in such recordings. The appellate panel also found that Hanford had “abused his discretion” when he ordered the release of uncensored footage despite his own stated misgivings of the potential risks.

The appeals court’s divided ruling paved the way for a hearing before the N.C. Supreme Court in 2023. Based on the arguments presented during this hearing, Allen and four of his fellow justices determined that the appeals panel had erred when it dinged Hanford for his presumption about McClatchy’s right of access. They added, however, that the panel was right to criticize him for not using his discretion to redact portions of the footage that he found problematic.

“Here the trial court failed to grasp its broad discretion under the…statute,” the ruling contends. “But for this misunderstanding, the trial court might have ordered redactions to or limited the release of the recordings, especially given its findings that releasing them would reveal highly sensitive personal information and could threaten a person’s reputation or safety.”

In the end, Allen determined that the matter ought to be bumped back down to the trial court for a more discriminating ruling on the requested footage. He was joined in this decision by associate justices Anita Earls, Tamara Barringer, Richard Dietz, and Allison Riggs.

Meanwhile, associate justice Philip Berger, Jr. has issued a dissenting opinion in which he takes the majority to task for failing to distinguish between the statutory procedures that different parties should follow to obtain access to police field recordings.

“The statute is clear,” Berger contends in his dissenting opinion, in which he is joined by the court’s chief justice Paul Newby; “two distinct processes exist — one for those that the legislature deemed presumptively authorized to receive the video evidence and another for those who are not so authorized…Yet, the majority eliminates these distinctions by reading ambiguity into a statute where none exists.”

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