On Dec. 28, an officer with the Wichita Police Department fatally shot a man and hours later the agency released a body camera recording from the so-called “swatting” incident.
In contrast, Kelly White waited 11 weeks to view the body camera video showing his son Dominique White’s shooting death by two Topeka police officers on Sept. 28. Footage was released to the public on Dec. 27, about two weeks after Kelly White was allowed to watch the recording.
In Kansas, inconsistencies on the time it takes to release footage abound, but there is growing interest in the state legislature to provide more clarity and conformity.
Wichita police chief Gordon Ramsay believes there should be “statewide consistency on video release that should be legislated and not left up to police chiefs or other non-elected officials to decide,” according to Wichita police officer Charley Davidson, who is also a spokesman for the department.
Best practices on body camera recordings are still developing.
“As opinions on body camera footage evolves, we need to regularly re-examine our laws to ensure they are consistent with public expectations balanced with individual’s privacy,” Davidson said. “Because police often deal with people in the privacy of their own homes and during their darkest hours, should that video be available to anyone, such as neighbors, ex-boyfriends?”
However, not all stakeholders believe state law needs amending.
“It is our belief the current statutes adequately balance the interests of justice of all parties and the public interest,” said Ed Klumpp, who represents the Kansas Association of Chiefs of Police, Kansas Sheriffs Association and the Kansas Peace Officers Association.
Body camera videos and other recordings such as police dashboard cameras are considered criminal investigation records. Public agencies aren’t required to disclose such records — it is at their discretion. A court can order disclosure if it finds the records are in the public interest or doesn’t endanger someone, among other provisions laid out in the statute.
Certain individuals have the right to view a body camera recording. Agencies can charge a “reasonable fee for such services,” the Kansas statute reads. Those people include the subject of a recording and their attorney; a parent or legal guardian if the person recorded is a minor and their attorney; and heirs, executors or administrators of a decedent when the decedent was the subject of the recording.
Rep. John Alcala, D-Topeka, said he suspects the topic of body camera videos will come up in the 2018 legislative session, which starts this week. While Alcala said he understands the importance of law enforcement officers’ safety as well as local control over video produced by city agencies, he also said body camera access is a topic that “we do need look at it so it’s more accessible.”
Rep. Gail Finney, D-Wichita, agreed that it needs to be addressed. However, they aren’t sure if a bill will pass. Finney said it would be “a tough battle.”
Rep. Fred Patton, R-Topeka, said it would make sense for there to be consistency on the utilization and release of video footage. However, he also doesn’t want actions by the Legislature to deter body camera use.
“As the use of body cameras increase, we are going to see more instances of where there is a potential for conflict between those who want to control the release of the footage and those who want it released,” Patton said. “Balancing the interests of criminal investigations, involved parties and their families, innocent third parties and the public will be a challenge.”
Rachel Whitten, Gov. Sam Brownback’s spokeswoman, said Brownback considers any bill the legislature sends to him, but declined to comment specifically on potential changes to body camera laws.
Ron Keefover, president of the Kansas Sunshine Coalition for Open Government, said the current law needs to change. Family members of someone killed by police should have immediate access to body camera video, he said, and it should be made available to the public when an investigation is no longer active. The organization plans on offering language during the 2018 session addressing access to such footage, he said.
City of Topeka officials said they don’t have a view on the topic.
“The city does not have an opinion at this time related to what approach legislators should take regarding this statute,” spokeswoman Molly Hadfield said.
Topeka police Lt. Colleen Stuart said it is up to the public to communicate their priorities to legislators, not police departments.
“Law enforcement does just that — enforces the laws put in place by the legislature, whether state or federal,” she said. “The profession does not suggest to legislators what they should or should not do.”
Klumpp, a key lobbyist for law enforcement, has reservations about the Kansas Legislature getting involved and instead supports more training on the legal application of the current statutes.
“Current law already allows the release of video when such release is appropriate and no change to the law is necessary to accomplish that,” Klumpp said. “Our associations are open to meaningful discussions about suggested small fixes to clarify current law.”
Prematurely releasing videos without other details about an incident could lead to erroneous judgments.
“We believe that release of video, in many cases, without the simultaneous release of additional information of events in the past or immediately leading up to the videotaped encounter, does not present the entire picture,” he said.
Other elements such as witness statements and physical evidence are needed to understand the circumstances, Klumpp said, and those take time.
“Accuracy and completeness is highest at the conclusion of the investigation,” he said.
Klumpp also believes that establishing a fixed time period for the release of video would be difficult.
“There are many circumstances and variables that dictate what is appropriate requiring case-by-case assessment,” he said.
When videos are released, the decision is made in consultation with investigators, legal staff and prosecutors, he added, and not solely by a non-elected chief of police.
One of the most significant challenges in releasing body camera recordings is balancing privacy with transparency, said Harlan Yu, executive director of Upturn, a nonprofit focused on technology and public policy.
That balance can be facilitated when police departments craft their policies after discussions with the community they serve.
“Different communities have different expectations,” Yu said.
Policies should be clear in advance so that agencies can’t “cherry pick” what is and isn’t released, such as disclosing incidents where officers acted valiantly and denying access to controversial cases, Yu said.
According to a report published by Police Executive Research Forum, agencies should have protocols in place for releasing videos to the public and the media. The organization recommends a broad disclosure policy. However release may not be appropriate when videos contain evidence used in an ongoing investigation, show witnesses or victims or are taken inside a private home, the report says.
Yu said that generally police should release footage as soon as possible following serious use of force incidents — people should wait days or weeks, not months or years.
The way departments release videos is also important. Agencies should publish all relevant footage and it should be available online, Yu said.
State legislators should play a role in developing laws that provide clarity and advance the goal of transparency, he said.
For months following the police shooting of Dominique White on Sept. 28, White’s family and community members called for the release of the officers’ body camera videos.
The city of Topeka said releasing the video could interfere with prospective law enforcement action, the criminal investigation or prosecution.
The Topeka Police Department has also said they aren’t permitted to release recordings under the state’s open records law.
“The Kansas Open Records Act does not allow for footage to be released as long as it is an incident under investigation,” Lt. Colleen Stuart said.
That belief is at direct odds with other’s readings of the law.
“The police are absolutely wrong to say that they are prevented by statute from releasing video,” said Max Kautsch, an attorney for The Capital-Journal. “KORA does not contain any mandatory provision that the video needs to be kept away from the public.”
On Dec. 15, Kelly White, Dominique White’s father watched the video after being appointed special administrator to his son’s estate through Shawnee County District Court. Recordings were published by the media on Dec. 27 after Shawnee County District Attorney Mike Kagay announced criminal charges won’t be filed against the officers.
In Sept. 2014, Topeka police officers unlawfully arrested two people. The pair received a $50,000 payment after filing a claim against the city. In 2014 and 2015, The Capital-Journal filed open records requests to view the video from the incident, but were denied because the case was still under review by prosecutors. The video was seen by the public more than three years after the incident, following the DA’s office decision to decline charges against the officer and a third request from The Capital-Journal.
When Steven Myers was fatally killed by a beanbag round on Oct. 6 in Barber County, southwest of Wichita, his wife viewed body camera footage about a week later, her attorney Michael Kuckelman said. However obtaining a copy of the recording would take more than two months and about $25,000 in legal costs.
Kuckelman said the provision that only allows viewing is outdated because the cost to copy a video file is only a few dollars using a USB flash drive.
Kristina Myers, Steven Myers’ wife, filed a lawsuit to obtain a copy of the footage.
The sheriff’s office gave a copy to the media on Dec. 21, a day before a hearing set to decide the release of the video, Kuckelman said, adding that Kristina Myers wasn’t notified of its release to the media.
“It is clear the sheriff intended to cause more pain and suffering to this family because they won on the Kansas Open Records Act and forced his hand on the video and the audio,” Kuckelman said. “I’m just shocked that an elected sheriff would engage in conduct such as that.”
Kuckelman contends the sheriff’s office violated KORA because they didn’t have a good-faith basis to withhold the recordings.
“We think that we need to go the next step,” he said. “We need a ruling from the court that in fact, the sheriff’s department violated the Kansas Open Records Act because we need to set a precedent, we need to set an example for the other 104 counties in this state.”
However, Jeffery Jordan, an attorney for Barber County in the case, denies a violation occurred.
“I can tell you generally that the Barber County Sheriff’s Office has at all times complied with the Kansas Open Records Act in providing access to the body camera video to Mrs. Myers and to her attorney who reviewed the body camera video,” Jordan said. “While we disagree with the district court’s interpretation of the act which found they could obtain copies, instead of appealing that issue, the sheriff’s office proceeded to provide copies in response to the outstanding open records act requests.”
Kuckelman said the case illustrated other significant components related to body cameras including the importance of obtaining all audio and video recordings.
“Every time we’d go to view a video, we’d learned there was more video and eventually the Kansas Bureau of Investigation during its investigation determined there was even more video,” Kuckelman said. “In the Myers case, the video and the audio together paint a completely different picture of what happened on Oct. 6 than what the sheriff’s department led the public to believe … Mr. Myers has three young children … In this case, because of video and audio, those three children will now know that their dad was killed by the sheriff’s office without justification.”
Barber County undersheriff Virgil Brewer wasn’t wearing his body camera when he fired the beanbag round at Steven Myers, Kuckelman said, adding that there should be some uniformity on when body cameras are used.
Kristina Myers filed a federal civil lawsuit in November alleging wrongful death, constitutional violations and conspiracy to use excessive force, among other counts. Barber County sheriff Lonnie Small filed a motion on Friday to dismiss him from the suit.
The criminal case is under review with the Kansas Attorney General’s Office, Kuckelman said.
He also supports changes in state law, especially as it pertains to gaining copies of body camera recordings.
“The Legislature must clarify this issue in the next session,” Kuckelman said. “Just look around the state, our case isn’t the only one. There are many examples and look at the outcomes — many of them are very inconsistent. In our case, because we pushed hard and we fought hard, it took two months for us to have it. I think there have been other cases where it’s gone on for on much, much longer. And that’s not fair that we have different outcomes in different venues. It should be uniform across the state.”
While Wichita police have swiftly released body camera recordings in some cases, there are other incidents where the agency has fought its release.
On Aug. 7, members of the Wichita Police Department responded to a domestic violence incident involving a man holding his girlfriend against her will, WPD chief Gordon Ramsay said in a news briefing later that day. The 29-year-old man was killed.
Ramsay said the officer who fired the fatal round was an 18-year veteran of WPD and showed still photos from body camera footage. He also said he had met with the man’s family and called the incident “a sad situation.”
On Dec. 28, Wichita police responded to a report of a shooting involving hostages that was later determined to be false. A man came to the front door and an officer fired one round after fearing the man was reaching for a weapon. The man, identified as Andrew Finch, was unarmed. The next day, the 911 call and some of the body camera video was released by the department.
Kuckelman said it was important to be able to see additional recordings showing other angles from the “swatting” incident.
Wichita police have rebuffed other body camera requests. In December, The Wichita Eagle sued the city of Wichita over access to video from a hit-and-run crash involving an off-duty WPD officer and the handcuffing and detention of a man, according to the lawsuit which was filed in Sedgwick County District Court.
The requests were denied by WPD, who said body camera videos are considered criminal investigation records and not subject to mandatory disclosure.
Garden City to purchase body cameras
In December, the Garden City Commission gave the Garden City Police Department the go-ahead to purchase Motorola body and car cameras for implementation in 2018.
The approved bid of $446,942 includes 64 body cameras and accessories, 26 in-car camera systems with front and rear cameras, six in-car cameras with dual views, various training sessions and data storage.
The approval follows the fatal shooting of a Garden City man in early October that involved a deputy of the Finney County Sheriff’s Office and an officer of the GCPD.
Cristino Martin Umana-Garcia, 29, was shot on Oct. 5 in Finney County in the remote sand hills area southwest of Garden City. Umana-Garcia was described as hostile and armed with a knife when he allegedly charged officers, according to the Kansas Bureau of Investigation. The KBI has not yet made public the results of their ongoing investigation.
Master Patrol Officer Roger Montez of the GCPD and Patrol Corp. Eric Rojas of the sheriff’s office were involved in the fatal shooting of Umana-Garcia. Both officers were put on administrative leave with pay, pending the outcome of internal investigations by the GCPD and sheriff’s office, as well as the one being conducted by the KBI.