Dashboard camera videos generally must be released to the public when police use deadly force, the New Jersey Supreme Court ruled unanimously on Tuesday, and police reports naming the officers in those cases may not be withheld.
Transparency advocates hailed the decision as a groundbreaking moment in New Jersey, strengthening the state’s Open Public Records Act and the common law right to access after years of decisions from lower courts that have restricted the types of law enforcement records open to the public. Media and civil rights lawyers said the logic of the Supreme Court’s ruling likely extends to footage from police body cameras and not just dash cams.
“Ready access to government records lies at the heart of OPRA,” Chief Justice Stuart Rabner wrote for the court. “And in the case of a police shooting, non-disclosure of dash-cam videos can undermine confidence in law enforcement and the work that officers routinely perform. It can also fuel the perception that information is being concealed — a concern that is enhanced when law enforcement officials occasionally reveal footage that exculpates officers.”
In a rare move bolstering Rabner’s decision, hours after the ruling, the Administrative Office of the Courts issued a new directive to the head judges in New Jersey’s 15 trial court districts encouraging them to handle all requests for dashboard camera videos “expeditiously.”
The Supreme Court’s decision comes amid a thorny and ongoing legal battle. On one side is The Record and its parent company, along with various media organizations and assorted advocacy groups including the American Civil Liberties Union of New Jersey. On the other side is the state Attorney General’s Office, the state police, three police departments in Bergen County, and two police unions.
At its core, the case pits the public’s right to know basic information about police shootings soon after they happen against the state’s need to keep a tight lid on investigations to ensure their integrity and to protect the police officers who use deadly force.
The ruling also comes after a string of protests across the country against excessive use of police force against blacks, some of whom have been unarmed or unthreatening when they were killed by police. Video of such incidents often has become the definitive, unvarnished account.
“As recent events across the nation make clear, shootings that involve law enforcement officers generate widespread interest — when an officer, a civilian, or both are harmed,” Rabner wrote. “In such matters, ‘the public interest’ encompasses various strands. Officer safety is always a vital concern. The need for a prompt, thorough, and reliable investigation is likewise important. And the need for transparency, which OPRA is designed to foster, also weighs heavily, particularly when law enforcement uses its most awesome authority — deadly force.”
In September 2014, state troopers and police officers from Lyndhurst, North Arlington and Rutherford were on a high-speed road chase in Bergen County pursuing Kashad Ashford, a 23-year-old black man in an SUV that had been reported stolen.
Ashford careened into a guardrail at an overpass on Route 3. Police officers surrounded him with their vehicles. Ashford stepped on the gas, presumably to attempt a getaway. Two of the officers, both unnamed, feared that the SUV’s jerking motions could kill them.
“Four law enforcement officers discharged a total of thirteen rounds toward Mr. Ashford,” who was pronounced dead hours later, according to the Supreme Court.
One year later, a state grand jury voted not to indict the four officers.
But in the immediate aftermath of the shooting, reporters for The Record and another newspaper owned by its parent company filed requests for a variety of police records. They were denied the dashboard camera videos and the “use of force” reports naming the officers who shot and killed Ashford. A legal battle ensued and eventually the state Appellate Division issued a sweeping opinion in 2015 blocking access to the video and the use of force reports, describing those records as part of an ongoing criminal investigation and exempt from public disclosure under OPRA.
The Supreme Court reversed most of that ruling on Tuesday, finding that the Appellate Division had relied on outdated court precedents regarding a defunct state law that preceded OPRA.
OPRA, the state’s main transparency law since its enactment in 2001, was designed by lawmakers “to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process,” Rabner wrote.
Of the four officers who shot at Ashford, only two of them, from Lyndhurst, hit him. State authorities have not named those officers and have withheld the “use of force” reports, which include their names. The Supreme Court ruled that those “records should have been released without redactions” under OPRA.
The use of force reports are mandated by the state Attorney General’s Office and do not fall within OPRA’s exceptions, the court ruled.
Attorneys for the state argued that they were only required to describe the officers’ positions — their “identities” — but not disclose their names under OPRA. The justices disagreed.
The dashboard camera videos were exempt from disclosure under a section of OPRA that applies to criminal investigatory records, the court found.
But the court also was asked to consider The Record’s request for the video under the common law right to access, a different legal mechanism to seek public records.
Rabner wrote that under the common law, The Record should have been granted dashboard camera videos taken during Ashford’s shooting, and the court ruled that future requests under the common law for such videos should generally be granted once witnesses have been interviewed.
“We find that the Attorney General’s interest in the integrity of investigations is strongest when it comes to the disclosure of investigative reports, witness statements, and other comparably detailed documents,” the court ruled. “The balance can tip in favor of disclosure, however, for materials that do not contain narrative summaries and are less revealing. Footage of an incident captured by a police dashboard camera, for example, can inform the public’s strong interest in a police shooting that killed a civilian. It can do so in a typical case without placing potential witnesses and informants at risk.
“Dash-cam footage can also be released without undermining the integrity of an investigation once investigators, shortly after an incident, have interviewed the principal witnesses who observed the shooting and are willing to speak to law enforcement.”
The state cited safety concerns for the officers involved in the shooting, but the justices said those concerns were too general to pass legal muster. They added that, “to the extent that a viewer might incorrectly assume certain things from an MVR [dash-cam] recording, as the state suggests, it may supplement the videos with facts that offer appropriate context.”
The Attorney General’s Office did not respond to a request for comment.
“I do think it’s the most significant OPRA decision since the statute has been amended and one of the most important public records decisions ever by the Supreme Court,” said Jennifer Borg, one of the attorneys for The Record and a former owner of the newspaper, which is now a Gannett property.
She cited the Laquan McDonald case in Chicago. A police officer shot and killed McDonald, a black 17-year-old, in 2014 and it was a dashboard camera video that set the record straight on what had happened that night.
“It’s not one person’s word versus another’s,” Borg said. “Oftentimes seeing is believing, and the body cam or the dash cam can show you what actually happened.”
The officer who shot McDonald, Jason Van Dyke, was charged with first-degree murder. Three other Chicago police officers were indicted last month on conspiracy, obstruction of justice and official misconduct charges for attempting to cover up the circumstances of the shooting.
“The high court has recognized the overwhelming public interest in transparency when police use deadly force is so critical,” Borg added. “The Appellate Division lately has not been a friend to transparency and I’m thrilled that the Supreme Court reversed them in large part and really recognized that, hey, you really need to do more than say ‘officer safety.’”
The ACLU, which argued in favor of The Record as an amicus, said the ruling likely would apply to police body camera footage as well as dashboard camera videos.
“The extraordinary powers we give the police come with an obligation for law enforcement to shed light on the actions officers take to protect and serve,” said the group’s senior staff attorney, Alex Shalom, who argued before the Supreme Court. “Community trust in police is at stake, and this decision represents an important step forward in cementing stronger ties between officers and the communities they serve.”