Transparency

We Sent an Intern to Virginia to Get Police Body Cam Footage. It Didn't Work.

What happened when Reason sent a 22-year-old non-lawyer to fight for transparency.

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picture alliance / Frank Duenzl/Newscom

"You want to file a what, now?"

The deputy clerk looked up at me from behind her glass window in the county courthouse with an expression that showed both skepticism and confusion.

"A Petition for a Writ of Mandamus," I said.

"I don't think we can do those," she said. "Hold on. Let me get a supervisor."

Her confusion was understandable. The General District Court for Chesterfield County, Virginia, mostly handles cases involving traffic fines, evictions, and debt collection. They do not, I suspect, handle a lot of magazine interns trying to file pro se lawsuits against the local police department. And yet there I was.

The two hours it took me to convince the clerks that I was not crazy and that what I was trying to do was actually legal was my first indication that this might be more complicated than I had hoped. On the upside, they were pleased enough that I was not a sovereign citizen that they waived my filing fees.

The path that had led me to the Chesterfield County courthouse had begun about a week earlier, when I spotted a post on the law blog Above the Law about police in Virginia refusing to turn over body camera footage of a traffic stop in which officers of the Chesterfield County Police Department (CCPD) held a black college student at gunpoint. The story was a depressingly familiar one.

The student had been pulled over in early February by officers who said he hadn't stopped before turning right on red. Then, claiming to smell marijuana, they ordered him to step out of the car and asked if he had anything illegal. He replied that he had a knife clipped inside his pocket—perfectly legal in Virginia.

Immediately, the officer on the passenger's side of the vehicle aimed his gun at the driver. Both cops started shouting at him not to reach for the knife. After he'd been handcuffed, they searched the car, with his consent. Finding no weed, they let him go.

The kid's mother turned out to be Yesha Callahan, deputy managing editor at The Root. Understandably upset, she did what any sharp reporter would do and filed a request under the Virginia Freedom of Information Act (VFOIA) for the officers' body cam video. She also lodged a complaint with the police department.

When CCPD denied her request, claiming that the video was a FOIA-exempt "criminal investigative file," she wrote about it. That caught the attention of the Richmond Times-Dispatch, which started asking questions about the stop. After the first article in the Times-Dispatch, CCPD said that the paper's reporter and Callahan could come view the video in person at their headquarters but they couldn't have a copy.

Callahan, who lives in D.C., didn't make the trip, but a Times-Dispatch columnist, Michael Paul Williams, did, and described the video in his column. Williams also interviewed Jefrey Katz, the Chesterfield County police, and asked why he was being so hush-hush about the video.

Katz claimed he was worried about people trying to doctor the video. But he also said, in what I suspect was a moment of unintentional candor, that they hadn't wanted to release the video to Callahan because they believed that she had "an anti–law enforcement agenda."

That's where I come in. I sent off my own request to CCPD, thinking I'd get the same "criminal investigative files" response and I could write a quick piece chuckling about how they'd probably also rejected my request because they think Reason has an anti-police agenda.

They did reject my request, but didn't cite the exemption I expected. Instead I was told that CCPD considered the video to be a record "of an administrative investigation," specifically, the internal affairs investigation triggered by Yesha Callahan's complaint.

That gave me an idea. This wasn't a record of an administrative investigation; it was a record of a traffic stop that might or might not be relevant to administrative investigation. That isn't the same thing at all.

For the sake of due diligence , I tried to convince CCPD of that. They told me to go away.

Some states (and the federal government) have administrative processes to appeal Freedom of Information denials without going to court. Virginia doesn't. Instead, you have to sue for a court order to release the records.

Well, I figured, why not give it a try? You're allowed to bring these cases in Virginia's General District Courts, which have simpler procedures and also are "courts not of record," meaning their decisions aren't binding legal precedents. So if I lost (a distinct possibility, since I have no formal legal training and didn't have a lawyer), it wouldn't make life harder for other reporters in the future.

I found an example of a VFOIA lawsuit (arcanely styled a "Petition for a Writ of Mandamus") online, and I used it as a template to draft my own. It had to be filed in person, so road-tripping down to the courthouse I went.

The bewildered clerks were not the last of my problems. Pretty quickly, I hit two snags. First, the county took my case a little more seriously than I had thought they would. They put the second-in-command of the County Attorney's Office, a government lawyer with decades of experience, on the case.

Within a few days, he a filed Motion to Strike, arguing that my case thrown out because I'd sued the wrong entity— the police department instead of the county government. CCPD, apparently, was "a non-existent legal entity" that could not be sued. So the first hearing, which was supposed to be about whether the video had to be released, was instead about who the right defendant was.

The good news was that I managed to avoid having my case thrown out altogether. Instead, the hearing was delayed for a month while the clerk's office served the papers on the same county attorney's office that had just got done arguing that it hadn't been properly served.

The second difficulty I encountered was that Virginia's Freedom of Information law sucks. Essentially, it consists of a general mandate that documents and records generated by Virginia government agencies be produced on request, followed by exemptions for, basically, anything someone interested in government accountability would ever ask for.

It's especially bad with regard to police records. One of the exemptions is for "criminal investigative files," a term the act defines as "any documents and information, including complaints, court orders, memoranda, notes, diagrams, maps, photographs, correspondence, reports, witness statements, and evidence relating to a criminal investigation or prosecution." The Supreme Court of Virginia made things worse by holding that this exemption lasts forever, even after the investigation in question is closed.

Once we got past the procedural issue of who I should be suing, the county filed an answer to my fixed petition arguing that the video was exempt both because the fact that it showed the cops searching the car for weed made it a record of a criminal investigation and because of the previously cited internal affairs investigation.

The next hearing was the real show. The county lawyer and I spent about an hour and a half arguing about whether the two exemptions they were invoking should apply. Jeffrey Katz, the chief of police who had made the original "anti–law enforcement agenda" remark, turned up to watch the show. In terms of organizational seniority, I, the intern, was feeling a little outgunned.

Basically, I tried to argue that the consent search of the car was too minimal an effort to count as a "criminal investigation." I pointed out that the case in which the Supreme Court of Virginia had addressed the "criminal investigative files" exemption dealt with a suspicious death investigation that lasted for days and involved detectives, crime scene technicians, and an evidence log.

The county, on the other hand, argued that the exception applies any time officers are acting based on "reasonable suspicion," the low standard that applies to things like stop and frisk. I countered that such an interpretation would exempt video of nearly everything that police officers do and would thus defeat VFOIA's stated purpose of promoting transparency. Instead, I argued, the judge should look to the "totality of the circumstances" to determine whether an investigation has occurred, including the strength of the evidence, the level of police resources involved, and the complexity of the fact-finding techniques employed.

The issue about administrative investigations, which had initially piqued my interest in the case, ultimately ended up not mattering very much, because it only applies during the course of an administrative investigation, and so the issue is "trumped" by the criminal investigative files exemption, which lasts forever.

The judge asked both of us probing legal questions that suggested he was really paying attention. But in the end, I lost. In his opinion, the judge said he couldn't draw lines between which searches count as criminal investigations and which don't. As long as the police are acting on reasonable suspicion, he said, that's good enough.

That's not an outrageous ruling, all in all. But it's not quite correct, either. As the judge notes, "an investigation is a concerted effort—that is, more than a casual or haphazard effort—to ascertain facts about a given subject." In the context of daily life, sure, searching a car counts as more than a casual or haphazard effort. In the context of modern American law enforcement, though, casual and haphazard is exactly what these kinds of searches are.

"Pretext" traffic stops like this one—in which police pull over drivers with the true intention of searching for drugs—are one of the most commonplace forms of American policing. They're fishing expeditions, but thanks to the Supreme Court, they're entirely legal. In most states, an officer's unverifiable assertion that he smells marijuana is enough to create the "probable cause" sufficient to conduct a search even without the driver's consent.

To recognize that, and base a legal opinion on it, is probably further than you can fairly expect a judge who sits beneath three tiers of possible appellate scrutiny to go. There are layers and layers of bad law at work here.

So as far as police transparency in Virginia, this judge isn't the problem. VFOIA is, with an assist from the Supreme Court of Virginia. Saying that the public may access police records unless they relate in any way to criminal investigations is like saying you love all Ben & Jerry's products except the ones containing dairy. It's self-negating.

The judge in my case understood this, I think. "The Court believes that the language at issue here was codified in a pre–Ferguson, Missouri world," he wrote. "Judicial self-restraint, in addition to statutory analysis, counsels that the decision whether to exempt body-worn video from VFOIA should be made by the [state legislature], not the courts." I can respect that.

If you're a Virginian who cares about accountability, though, you should be pissed at your state and local governments for spending your money on body cams and then spending more of it to fight with a reporter to avoid letting you see what they film.

NEXT: Chicago Mayor Pushes for Police Drone Surveillance of Public Gatherings

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  1. Good work Alec. I hope Reason does a great In Memorium for you once you’re murdered by cops.

    1. They can put “totality of the circumstances” on his tombstone.

    2. Agreed. Great job, Alex. You’ll go far.

      1. Thirded. Good job.

        1. Fourthed, on May the Fourth. Fascinating play by play, sounds like you kept your cool far better than most would.

          1. Fifted. Very well done. If MSM actually did real work like this we might actually get something accomplished. Alec Ward, the next John Stossell?

  2. Back in my day we just had interns fetch us coffee and dance seductively by our desks.

    These millennial interns are crazy af

    1. Actually, if the intern had brought coffee and danced seductively at the police station, they’d have gotten the video no questions asked.

  3. To recognize that, and base a legal opinion on it, is probably further than you can fairly expect a judge who sits beneath three tiers of possible appellate scrutiny to go.

    “Excuse me, your honor, but can I speak with your supervisor, or really anyone at a higher pay grade?”

  4. They did reject my request, but didn’t cite the exemption I expected. Instead I was told that CCPD considered the video to be a record “of an administrative investigation,” specifically, the internal affairs investigation triggered by Yesha Callahan’s complaint.

    That gave me an idea. This wasn’t a record of an administrative investigation; it was a record of a traffic stop that might or might not be relevant to administrative investigation. That isn’t the same thing at all.

    For the sake of due diligence , I tried to convince CCPD of that. They told me to go away.

    Buzz off, journo scum!

  5. they hadn’t wanted to release the video to Callahan because they believed that she had “an anti-law enforcement agenda.”

    Guessing VFOIA doesn’t have exemptions for “requester holds divergent political opinions.” Arrogant fucking blue-shirted mafia.

    1. You shouldn’t insult the mafia like that. Seriously, they might take exception and decide to do something about it. Kiss your kneecaps goodbye. 🙂

    2. Hah, little do they know, I already kissed my kneecaps goodbye a long time ago.

      But, OK, sorry, Mafia. I shouldn’t have lumped you in with those…those animali.

    3. They wear green here.

  6. I thought Writ of Mandamus was a rare card in Magic: The Gathering.

    1. It was, however, trumped by the even more rare card known as the Shit of Mandamus!

      1. That’s Unglued, man. It’s a joke set, not intended for serious play.

    2. I was going to make a World of Warcraft joke out of this. Gary Gygax is rolling his eyes at both of us.

      1. I bet they came up snake eyes.

  7. A point that might be overlooked. The police asked “do you have an illegal weapon?” He answered “I have knife in my pocket.” The driver, trying to be cooperative, told the police he had a “weapon”. They have a “technically correct” reason for pulling guns. He said he had an illegal weapon.

    The police are ABSOLUETY trained to ask questions that allow them to infringe on personal injury. Imagine how the police react if the driver responded “I’m not going to answer the question ‘are you doing something illegal’?” Or what happens if the driver had said no and the police noticed the outline of the knife*in his pocket.

    *I had to rephrase “bulge in his pocket” as a preemptive measure.

    1. The correct answer to the question, “do you have an illegal X?” is to ask for a lawyer and/or invoke your 5th amendment right.

    2. I’m not familiar with Virginia law, but in Texas, an “illegal knife” is any knife that requires special reason to carry (dagger, dirk, sword, spear, etc). This “special reason” list includes any location where a knife can be used or needed and travelling to it. This is Texas after all. However, the term “illegal knife” is still proper, despite “restricted knife” being far more accurate.

    3. “He said he had an illegal weapon”

      No, this is incorrect. He didn’t affirmatively answer yes, and the knife is not illegal.

      1. You prove my point by arguing the finer points. It’s a question and answer that covers the police actions. Police: “he said he had a knife when we asked if he had illegal weapon” will not work in a court, but will work when any oversight tries to determine if police were excessive. Your argument is also suspect in supposing the only affirmative answer is yes.

        Are you hot?

        I’m burning up.

        Do you have an illegal weapon?

        I have a knife.

        Both are an implied affirmative

  8. “I could write a quick piece chuckling about how they’d probably also rejected my request because they think Reason has an anti-police agenda.”

    You can tell they do, because Dunphy isn’t on staff.

  9. …Writ of Mandamus…

    Nothing beside remains. Round the decay
    Of that colossal Wreck, boundless and bare
    The lone and level sands stretch far away.

  10. You’d think judges (who paid attention in law school) would be enamored of Writs of Mandamus. Such a writ was the subject of Marbury v. Madison, which gave courts the power of judicial review over the nasty Legislative branch.

  11. If you’re a Virginian who cares about accountability, though, you should be pissed at your state and local governments for spending your money on body cams and then spending more of it to fight with a reporter to avoid letting you see what they film.

    If you’re a Virginian who cares about accountability, you moved out of Virginia. Sad.

    1. So nice to know that they’ve deflected calls for transparency by providing the appearance of transparency and then locking up anything that might be used to their disadvantage.

      Meanwhile, police training videos will continue to promote an “us versus them” mentality, furthering the schism between the public and agents of the state.

  12. So body cams will only be released if they exonerate the cops?

    1. You expected something different?

  13. When I cop pulls me over and I tell him I have a gun in my pocket, I get a very different response. Same for my wife.

    I wonder if it is because we are white people driving expensive cars.

    1. You mean you aren’t just happy to see him?

  14. “CCPD, apparently, was “a non-existent legal entity” that could not be sued.”

    But to police, property is somehow an existent legal entity separate from its owner.

  15. I got pulled over last week for my plate light being out. Afterward, I pulled into a parking lot and checked it myself. It worked fine. But I can’t bother a court for a warning I guess.

  16. Not as thrilling as “Love Canal–the Truth Leaks Out,” but an impressive effort at honest investigative journalism. Nor am I surprised at the outcome. Those particular courts are organs of the political soft machine that has the nation in its grip. Here’s hoping we see more of Alec’s work in the near future, and thanks, Reason.
    p.s. Virginia was the state in which the LP was barred from the ballot, yet Roger MacBride cast an electoral vote against Tricky Dick and for John Hospers and Toni Nathan–a vote that permanently altered American jurisprudence.

  17. “Criminal investigation is an applied science that involves the study of facts, used to identify, locate and prove the guilt of an accused criminal. A complete criminal investigation can include searching, interviews, interrogations, evidence collection and preservation and various methods of investigation.”

    You were right. A simple search should not qualify as a criminal investigation.

  18. We are absolutely delusional to think we live in a “land of the free and home of the brave”. I laugh my ass off every time I hear that silly drivel.

    American copping, along with its cousins, judges and prosecutors, is completely out of control. These people do whatever they wish and laugh in our faces. Hell, it’s time we label THEM sovereign cops?sovereign judges?.sovereign prosecutors. THEY are the fruitcakes acting outside the bounds of decency and the intent of the law.

    You will trust anyone involved in these activities at your peril ESPECIALLY if you’ve done nothing wrong.

  19. The student had been pulled over in early February by officers who said he hadn’t stopped before turning right on red. Then, claiming to smell marijuana, they ordered him to step out of the car and asked if he had anything illegal. He replied that he had a knife clipped inside his pocket?perfectly legal in Virginia. Immediately, the officer on the passenger’s side of the vehicle aimed his gun at the driver. Both cops started shouting at him not to reach for the knife. After he’d been handcuffed, they searched the car, with his consent. Finding no weed, they let him go.

    The moral of the story is: if you don’t want to get handcuffed during a traffic stop, don’t carry a deadly weapon on your person while driving.

    1. I pity you. Hopefully you have no children to pass along such disgusting nonsense.

  20. The reason cops want body cameras is so that in the rare case where it would exonerate their actions they will have something to provide the media and public so they can say “Look, we are the good guys”. In the majority of cases where it would show how wrong their actions were, you will run into laws such as this and “malfunctions”. Transparency of government is a snipe hunt.

    1. “Transparency of government is a snipe hunt.”

      People use “snipe hunt” like this as an impossible task on the implication that snipe are mythical. They are not.

      Snipe

      In fact, the word sniper originates from British soldiers in India who used the ability to shoot snipe as the measure of an expert marksman.

      The verb “to snipe” originated in the 1770s among soldiers in British India in reference to shooting snipe, which was considered a challenging target for marksmen. The agent noun “sniper” appears by the 1820s.

  21. Happened to me in TX last year – small town in the panhandle, passing through in my RV, cop pulls me over because my RV was rocking in the heavy crosswinds and on the uneven pavement. Long story short he ends up calling for backup and searching my RV without my consent (he had his dog sit down, lied that that meant something other than that the dog wanted to please his master). Let me go with a “verbal warning” – didn’t say for what. When I got home I wrote to the PD and asked for a copy of the incident report. The chief himself called me a few days later and told me that there is no report written unless an arrest is made. Seems pretty handy, that way they can claim 100% accuracy for their pet dog. Also handy for them that they called instead of writing or emailing – no record of what they said that way. Moral of the story seems to be “stay out of small towns” but that seems extreme. Doesn’t seem to be any way to avoid getting pulled over and searched – driving below the speed limit, in the right lane, dead sober and with fully licensed and insured vehicle with a licensed driver – none of it matters any more.

    1. You should name the town. Name and shame these assholes.

  22. The way to get the video is to have the kid who got the guns pointed at him sue for “intentional infliction of emotional distress”. Then they have to turn it over as part of the civil discovery process. The problem will be that the city will claim the the cops have “qualified immunity” from being sued, a legal boondoggle which prevents cops from getting sued.

  23. Nice work and write up Alec! Give this man a job.

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