Nearly six years after South Carolina legislators passed a landmark bill mandating body cameras for police officers, authorities say it's time for an update.
The June 2015 bill requires state and local law officers to wear the devices and agencies to develop policies on their use. But it exempts the videos from open-records requests.
Officials also neglected to provide funding for the cameras, saddling agencies statewide with costs for equipment, training, storage and processing. Releasing the videos is left up to the discretion of local agencies, the State Law Enforcement Division, the S.C. Attorney General's Office or solicitors.
With no clear pathway for release, the videos and the transparency they were meant to bring are mired in a hodgepodge of legal interpretations across the Palmetto State, authorities said. Today, some agencies release the videos while others bar it entirely from public view.
S.C. Rep. Justin Bamberg, D-Bamberg, said he's experienced this frustration firsthand.
The legislator and attorney filed a lawsuit, which is pending in court, against the Rock Hill Police Department in December on behalf of a client, Jethro DeVane, who was pulled naked from his home in June 2019 by city officers.
Bamberg said his client was immediately met with resistance when he tried to request officers' body camera videos.
"They didn’t want to give it to him," the attorney said. "They said it’s indecent, you don’t have clothes on. I don’t think there is anyone who can legitimately say that if you are the subject of the interaction with law enforcement, you shouldn’t be able to have free access to that tape. It shouldn't require a criminal charge, it shouldn’t require anyone filing a civil lawsuit. You shouldn’t have to jump through hoops to get a copy."
Rock Hill police eventually turned over the video, but for Bamberg, the experience is a clear example the 2015 bill needs updating.
First in the nation
Nascent efforts to pass a body camera bill kicked into high gear after Walter Scott's slaying.
In April 2015, a North Charleston police officer, Michael Slager, shot Scott in the back after a traffic stop, foot chase and struggle involving a Taser.
S.C. Sen. Gerald Malloy, D-Hartsville, had introduced a body camera bill in December 2014, but it languished in the Senate's judiciary committee until a bystander's cellphone video of the shooting surfaced.
By the end of April, the bill made it out of committee and was on its way to passage as the first law of its kind in the United States.
Debate continued and it became apparent compromises were needed to see the effort through, said S.C. Sen Marlon Kimpson, D-Charleston, one of the bill's first sponsors.
"Many counties expressed a pause because they argued they did not have the resources to adequately staff the administrative demands associated with that piece of legislation," Kimpson said.
Agencies feared that if all body camera videos were subject to public records requests, they'd be overwhelmed by the staffing, technology and costs associated with providing the recordings, he said.
Body cameras capture a wide variety of law enforcement activities, including potentially sensitive information such as driver's license numbers and other identifiers. The devices can also record officer interactions with minors, crime victims and other protected people.
Blurring these images from videos can take hours and requires specialized software, according to 9th Circuit Solicitor Scarlett Wilson and Charleston Police Chief Luther Reynolds. At the time the bill was passed, lawmakers decided making all body camera recordings subject to public records requests would be cost-prohibitive, particularly for smaller agencies.
"We decided to address it another day," Kimpson said. "It was the product of a compromise."
Now, he and others believe the time to address these and other issues has come.
"I am for the press obtaining this information," Kimpson said. "I think it would go a long way toward (fulfilling) the spirit of the bill."
For Wilson, whose office prosecutes criminal cases in Charleston and Berkeley counties, determining if and when it's appropriate to release body camera video is a significant challenge.
Wilson said she understands the public has a right to know what happened in officer-involved shootings and other critical incidents.
"Unless a body can articulate the harm in releasing the footage, there should be a provision for their release," she said. "I would probably, in many cases, disagree on when that should happen. That's what causes me concern. We do know the release of video footage can influence witnesses' testimony and create witnesses that weren't there."
The days after a police shooting are pivotal, Wilson said. Investigators have to interview the officers involved as well as witnesses — interviews that must be done before detailed information about the case is made public.
The solicitor pointed to the Scott shooting, where she said cellphone video contributed to false witnesses coming forward.
Nevertheless, Wilson said she believes there is a middle ground between unfettered release and obfuscation.
In 2019, the solicitor released a critical incident investigations policy that outlines a 60-day timeline for independent investigators and her office to wrap up probes into events such as police shootings.
She believes a similar timeline could work for releasing body camera videos. The recordings should be released when having the video go public won't shape the investigation and when there's sufficient funding for agencies to deal with redacting the videos and other processing needs.
"If some agency just doesn’t want to deal with the fallout, that’s just not acceptable," Wilson said. "It should be sooner rather than later. If it's going to take longer, there needs to be a reason why."
Charleston County Public Defender Ashley Pennington agreed generally with the solicitor's concerns.
Having all body camera videos subject to public records requests could overwhelm law enforcement agencies already faced with limited funding and staffing, Pennington said.
He and others also worry about the privacy of people who aren't the subjects of a criminal investigation who are recorded on officers' cameras.
"I think part of it is you’re dealing with a type of technology that didn’t exist 10 years ago," Pennington said. "The Legislature and the courts are figuring out how to manage this. We're flooded with body camera footage. It is not only very time-consuming to review, but I've had to get another server to store the data."
Still, the videos should eventually be released, he said.
"If I were speaking to members of the General Assembly, I’d say there’s a real cost to leaving it entirely to agencies that’ve made errors by leaving (video) under wraps," Pennington said. "It helps establish that trust when we’re transparent about the mistakes we make."
With the current legislative session set to end in May, changes to South Carolina's body camera bill are unlikely this year.
State lawmakers, meanwhile, said it's likely changes will come in 2022.
Prior to the coronavirus pandemic there were discussions about amending the 2015 law, Bamberg said.
Kimpson has tried to get provisions passed requiring officers to turn the cameras on when interacting with the public and establishing criminal penalties if someone deletes a video with the intent of influencing an investigation.
But a bill that would establish those rules has stalled since 2017.
"If it weren't for COVID-19, there very well may have been some revisions or, at minimum, some hearings," Bamberg said. "We’ve got to get through this year and then revisit in next session. The first bill was about transparency. The revision has to be about stopping government from trying to wiggle its way out from looking bad."
Despite broad agreement that body camera videos, especially of critical incidents, should be public, figuring out how to balance disclosure with the needs of investigators remains elusive.
Ted Corvey, a Charleston defense attorney and former assistant solicitor under Wilson, said he hopes the Legislature is able to find some middle ground.
"No matter how you look at this issue, it’s public information," Corvey said. "The question isn’t if it should be available, it’s when."
As discussion unfolds, Reynolds said it's important for the public to manage expectations about body cameras.
The devices have their limitations, Reynolds said. In some cases, such as in the December 2020 officer-involved shooting at the Bridgeview Village apartment complex, the recording does not capture the full scope of the incident.
The chief said he hopes legislators will take a closer look at fully funding the camera mandate because further reforms, including expanding public access to videos, won't be possible without money.
"Part of the answer is it takes significant resources," Reynolds said. "We can’t (release) all of them. I think it’s better to have a restrictive policy like our state has."
Although South Carolina allows law enforcement officials discretion in releasing videos, the chief said he acknowledges the policy has led to some inconsistencies in access around the state.
Generally speaking, if a video's release won't interfere with an investigation, Reynolds said he doesn't have an issue with making it public.
"The community is beginning to demand some level of access," he said. "That’s what we have to figure out."