On April 21, 2021, sheriff’s deputies in SWAT gear appeared at the home of Andrew Brown, Jr. in Elizabeth City, North Carolina. Moments later they shot Mr. Brown, who was in his car, five times, killing him. Although four bodycam videos apparently recorded both the actions of Mr. Brown and the deputies, they have not been released to the public, as protests continue in the small coastal town of about 18,000.
In North Carolina, police bodycam video can only be released to the public with a court order. When the law passed in 2016, the intent was to remove the politics from the decision-making process and to prevent law enforcement from refusing to release the video. Under the statute anyone can request the video, but notice must be given to the prosecutor and various law enforcement agencies to allow them to oppose the petition.
In the Brown case, the sheriff and a media coalition petitioned for public release of the four videos, but the prosecutor, Andrew Womble, objected during a hearing before a judge. The judge agreed with Womble and decided that the videos will not be made public at this time, even though the sheriff, whose deputies shot Brown, and the governor called for their release.
The judge went even further, saying that the media did not qualify as a “party” under the statute. This claim, which is being appealed, makes little sense because the statute does not exempt media, and the very first factor a judge must consider in making the determination is whether “release is necessary to advance a compelling public interest.”
Womble argued at the hearing that releasing the videos could taint the investigation, but then went on to advance his own narrative, which exonerated the police. According to Womble, multiple videos show that when deputies opened the door of Brown’s car, the car backed up making contact with an officer. The car moved forward, again contacting an officer, and that is when deputies opened fire on Brown.
Womble also used the court hearing to criticize Brown’s family’s lawyer, Chantel Cherry-Lassiter. Before the hearing, the deceased’s family was only allowed to see what they described as 20 seconds of video, which they were not allowed to record.
After watching that snippet, Cherry-Lassiter said that the video showed an “execution,” because Brown, 42, was sitting in his car with his hands on the wheel, driving away when the police shot him. At the hearing, Womble said that Cherry-Lassiter’s remarks were “false” and “designed to prejudice a proceeding.”
The sheriff, who wanted the video released, says that his deputies went to execute an arrest warrant on Mr. Brown for felony drug charges. Deputies also obtained a search warrant authorizing them to look for crack cocaine, other controlled substances, and “evidence of criminal activity” in Brown’s two cars and his home, according to the warrant which was marked as not executed.
One of his relatives says the family was told that law enforcement found no drugs or weapons in Brown’s car or in his house.
The family obtained a private autopsy revealing that Brown had been shot four times in the right arm and once in the back of the head, which was the shot that killed him. The finding that Brown was shot in the back of the head was used by the family to support their contention that he was shot while trying to flee the scene.
The investigation is now being conducted by the North Carolina Bureau of Investigation, although the FBI has announced that it is starting a civil rights investigation into the shooting. Seven deputies have been placed on administrative leave, two others have resigned, and one retired.
The governor has called for a special prosecutor to take over the case from the local prosecutor, Womble. In a tweet, the governor said that a special prosecutor would “help assure the community and Mr. Brown’s family that a decision on pursuing criminal charges is conducted without bias.”
Without the release of all four videos, the public is left in the dark; a grieving family has only a 20-second clip of the incident; a prosecutor claims release of the videos might taint the investigation and creates his own narrative of the videos while criticizing the family; and increasingly angry protesters believe the video isn’t being released to protect the police.
If ever there was a situation where release of video was necessary to advance a compelling public interest, this is it.
Mary Moriarty was a public defender for 30 years, most recently for Hennepin County.