Less than 24 hours after a deputy in Grand Ledge, Michigan, fatally shot a suspect on July 14, Michigan State Police and the Eaton County Sheriff's Office released neighborhood surveillance video and body camera footage of the killing.
The video showed Sean Ruis — who police said stabbed an elderly convenience store clerk after being asked to wear a mask in the store — approach the deputy during a traffic stop while carrying knives and a screwdriver. The deputy back pedals and repeatedly screams at the advancing Ruis to drop the weapons before shooting him.
Since 2015, at least 5,480 people have been killed by police in line-of-duty shootings, including 95 in Virginia, according to The Washington Post. Nearly all the shootings were ruled justified, and body camera footage is often a key aspect in the rulings.
But while police in other states regularly release video of officer-involved shootings or controversial arrests, local and Virginia State Police rarely do, even in cases when they say the video shows that the officers acted properly.
With calls around the nation for greater police accountability and transparency in the wake of the death of Black driver George Floyd under the knee of white Minneapolis police Officer Derek Chauvin on May 25, why are local and state police reluctant to release video?
Protests in the wake of Floyd's death were mostly peaceful, but police response to some of them was viewed as violent, leading the Virginia General Assembly to schedule a special legislative session on criminal justice reform on Aug. 18.
Many people demanding reform acknowledge police have a difficult and dangerous job. Officers regularly respond to volatile domestic violence calls and often deal with rowdy drunks or mentally ill people in crisis. The use of police body cameras was deemed as a way to help give the public a better idea of what officers deal with while holding them accountable and protecting police departments from frivolous lawsuits.
In 2014, a white officer killed unarmed Black teenager Michael Brown in Ferguson, Missouri, and Eric Garner, a Black man selling cigarettes on the street, died after being put in a choke hold by a white NYPD officer. Blacks make up 13% of the U.S. population but 25% of the people fatally shot by police, according to The Post.
In response, the Obama administration began providing federal money to police departments for body cameras. Proponents said it would change the narrative by showing how tough policing can be and demonstrate that most officers do their job right.
When then-Frederick County Sheriff's Office Deputy Brian Edward Thomas fatally shot Christopher A. Prevatt in 2015, state police and the Sheriff's Office said Thomas' body camera showed Prevatt lunged at him with two knives before being shot. But Freedom of Information Act requests by The Winchester Star for the body camera footage and 911 audio of the incident were denied by then-Sheriff Robert T. Williamson, who took nearly two weeks to identify Thomas and noted state FOIA law didn't require him to. The Post reported about 20% of officers involved in fatal shootings nationally are never identified.
When Winchester police Officer Alexandria M. Warren fired two shots at a man she said reached for a pistol on Jan. 8, 2019, she was cleared within two weeks after a state police investigation. Marc Abrams, Winchester commonwealth's attorney, said Warren's body camera footage helped him decide the shooting, in which the man wasn't injured, was justified. But state police denied a Winchester Star FOIA request for the video.
Even with advent of the body and cruiser cameras, much of the video of arrests and shootings seen by the public comes from bystanders who record it on their phones or neighborhood surveillance video, not law enforcement. That's begun to change nationally, but despite body cameras being purchased with public money, the public in Virginia rarely sees the footage.
'Predisposition to disclose'
Virginia's FOIA law allows police to release information such as body and cruiser camera video as well as 911 audio, plus disciplinary reports about officers and their personnel records. But it doesn't require them to.
Because of that broad exemption that other states don't have, the information often isn't made public. That's despite the Virginia Freedom of Information Advisory Council encouraging police to adopt a "predisposition to disclose" policy.
"It is important to keep in mind that FOIA does not prohibit the release of any information. Information that is exempted may be released at the agency's discretion, and frequently an agency may find that it serves its best interests to do so," the council stated in an online summary of police records and state FOIA law. "It is an established fact that law enforcement benefits when citizens are informed to the maximum extent possible."
Despite calls for greater transparency, Frederick County Sheriff Lenny Millholland said in an email interview that he wouldn't have released the Prevatt video if he'd been sheriff in 2015. Millholland, a police officer since 1979, took office in 2016.
In 2017, cellphone video showed a Frederick County deputy throw homeowner Dr. Jill Call to the ground and another deputy punch her in the back while she was being handcuffed as her house burned down. Call, who had been trying to turn off gas to her home and rescue chickens, was charged with disorderly conduct and obstruction of justice. In exchange for agreeing in writing not to sue the Sheriff's Office, the charges were dropped.
Millholland said body camera footage showed his deputies acted properly, but he denied a Star FOIA request for the video. A FOIA request for an internal affairs report clearing the deputies was also denied by Millholland.
In the email, Millholland said there was "no benefit" in releasing the videos of Call or Prevatt. Asked if the public has a right to see the evidence that deputies acted properly when a police-involved shooting or incident occurs, Millholland said they should take his word for it.
"Yes, I absolutely am asking that," he said. "On Nov. 5, 2019, there were 14,099 voters who granted me that trust and I take it seriously. I don't believe that I need to show a video to prove that my integrity or that of my people is still intact in a case where nothing wrong was done."
Millholland added that police and the public don't benefit from video or other evidence showing officers acting properly.
"They benefit from the fact that a thorough and impartial investigation was conducted. If we start showing every video of every incident, even those with no wrongdoing, what happens when a video isn't available for whatever reason?" he asked. "How do we prove that we are telling the truth at that point?"
But Eaton County Sheriff Tom Reich said if police don't release body camera video of controversial incidents, the public is likely to jump to conclusions. Reich, who took office in 2013 and began his policing career in 1973, said he decided to immediately release video of the June 14 killing to be transparent. He said he probably would have released the video even if it showed his deputy acting improperly.
"The way social media is today, if you aren't transparent, people make up their own stories or the media makes up stories," he said. "If people don't see it with their own eyes, people are going to make up their own minds."
'Transparency is a good thing'
Winchester Police Chief John R. Piper noted in a recent email that the decision not to release video of the Warren shooting was made by state police. Corinne Geller, a state police spokeswoman, wouldn't say what her agency's rationale is for releasing or withholding video of police shootings they investigate for local police.
When Winchester police purchased body cameras in 2017, Piper said at a news conference, "We want to err on the side of being transparent in line with the city’s strategic view. At City Council’s direction, we will make body camera footage available when we can, when it’s possible and permissible under FOIA and law.”
But Piper also said at the news conference that police were unlikely to release video involving pending criminal prosecutions. Cases can take months, or even years, to be adjudicated.
In a recent email, Piper said his department decides on a case-by-case basis about releasing body camera video. The department doesn't have cruiser cameras.
Among the considerations are whether the video is evidence in an ongoing investigation and whether it might violate the privacy of the people in the video. "We attempt to weigh those concerns against the benefits of the general public consuming the video," said Piper, who is planning to release use-of-force statistics online to the public in the next few months.
Asked if his office would release body camera video and 911 audio if his deputies were involved in a shooting or controversial arrest, Clarke County Sheriff Tony Roper wouldn't say. However, Roper said his office complies with Virginia's broad FOIA law and understands the need for the public to trust his agency. "We make efforts to maintain that trust and believe that most records are open under guiding legal authority," he said in an email.
That's not good enough for Del. Wendy Gooditis, D-Clarke County. Gooditis said she understands that police video is often part of criminal investigations and there are privacy considerations, but it's important for the public to see it when it involves a high-profile incident. "Transparency is a good thing and people have a right to see how officers are behaving," Gooditis said after a July 25 public forum on policing in Winchester.
But there are no plans at the upcoming special session to change Virginia's FOIA law to require police to make audio and video public, according to state Sen. Mamie E. Locke, D-Hampton. Locke, a liaison to the FOIA Advisory Council, said if a change were proposed, it would probably first go to the council for study.
Locke said she understands how body camera video of a police shooting or controversial arrest could potentially taint a jury pool — about 95% of criminal cases in the state and nation don't go to trial — but she also noted that with phone video being ubiquitous, the public is likely to see it any way. Locke said if body cameras are part of an investigation, "I would certainly want to see the footage."
Veronyka James, a Shenandoah University associate professor of criminal justice, studies how police-involved shootings shape people's perception of police. James said in an email that she supports changing Virginia's FOIA law to require the release of police video and other evidence in shootings if it can be done without putting officers or anyone in the video in danger.
"By not releasing footage, it makes it seem like there is something to hide, even if there is nothing to hide," she said. "Each incident needs to be considered and the pros and cons weighed. It is a delicate balance to determine when footage needs to be released."