NC Supreme Court Addresses Law Enforcement Recording Statute


“History teaches that opaque decision-making destroys trust; recent history involving police body cameras emphasizes this risk.”

We end 2022 with these strong words from our own North Carolina Supreme Court in an opinion issued earlier this month, In the Matter of Custodial Law Enforcement Recording Sought by the City of Greensboro, No. 364PA19 (December 16, 2022), discussing our state’s law enforcement recording statute. North Carolina General Statute § 132-1.4A(g) governs the release of such recordings, including body camera footage, and sets out factors that the court “shall consider,” including public interest and confidentiality of the individuals involved. The court “may place any conditions or restrictions on the release of the recording that the court, in its discretion, deems appropriate.”

The decision in In the Matter of Custodial Law Enforcement Recording Sought by the City of Greensboro is ultimately about the legal concept of trial court discretion (not necessarily a topic of note to many journalists) and doesn’t necessarily shift our understanding of how our courts approach the law enforcement recording statute. However, the court’s language is a helpful endorsement of transparency when it comes to police body camera footage specifically and a good reminder of the importance of the role of our courts in protecting that transparency.

By way of background, in September 2016, cell phone video of the arrest of four Black men on a public sidewalk by Greensboro police was posted to YouTube with the title “Greensboro police brutality.” According to the court opinion, the “video shows the police apparently using a chokehold” on one of the men “before throwing him to the ground” and using tasers. An internal investigation “concluded that the officers behaved appropriately.” The YouTube video is only two minutes long, but there are four hours of police body camera video from the officers that were there that day. Multiple interested parties – including two of the men arrested, the City of Greensboro, the Greensboro Police Community Review Board and various other entities – petitioned the Guilford County Superior Court for the release of the police body camera footage pursuant to N.C.G.S. § 132-1.4A(g).

Superior court judge Susan Bray decided to address all of these petitions in one hearing, viewed the footage privately, and entered an order releasing the footage with some very strict restrictions. These restraints included requirements that the Greensboro City Attorney had to be present at all viewings; that only certain individuals could view the video; and that all viewers were required to “sign a pledge of confidentiality and [were] not to disclose or discuss the body-worn camera recordings except with each other in their official capacity as managers, council members and legal counsel for the City of Greensboro and as necessary to perform their legal duties” on threat of fine and imprisonment.

For the City Council, this meant that the members could view the footage, but they were prohibited from discussing it publicly or with their constituents. The City Council viewed these conditions as a gag order – an unconstitutional prior restraint on their speech – and voted unanimously to request that the court lift the restrictions on speaking about the videos. They decided that they wanted to wait to watch the video until they could speak about it with their constituents and answer their questions, which, according to their attorney, was in large part why they wanted to view the footage.

The City Council asked the court to modify the restrictions, but Judge Bray rejected their request out of hand, saying: “I’m not really inclined to entertain their motion if they haven’t even bothered to watch it.” When the City’s attorney attempted to explain that they did want to watch it but wanted to be able to discuss it with their constituents, the judge said, “Well, then, let them watch it. The motions are denied.” She then issued a written order denying the motion that “contained no findings of fact, analysis, explanation, or conclusions of law.”

The City appealed, and the case then wound its way through the North Carolina Court of Appeals and eventually to the North Carolina Supreme Court. The City argued that Judge Bray’s decision was arbitrary, unsupported by reason, and failed to offer any explanation for denying the motions. “Because the trial court’s ruling is entirely unsupported by the record,” the Supreme Court wrote, “we conclude that the trial court abused its discretion in denying the City’s Motion to Modify Restrictions.” It’s worth noting that at the Court of Appeals level, the police officers involved stated that they wanted the video released and the gag order lifted, emphasizing that “the recordings will show they did nothing wrong.”

While this case is a ruling on the legal process at the end of the day, it does serve as a reminder that the courts play an important role in safeguarding our law enforcement recording statute. As noted above, N.C.G.S. § 132-1.4A(g) tells us that the court “may place any conditions or restrictions on the release of the recording that the court, in its discretion, deems appropriate.” While this provision does give courts broad discretion, In the Matter of Custodial Law Enforcement Recording Sought by the City of Greensboro emphasizes that a court must give some justification for these restrictions when prompted.

Justice Robin Hudson, who wrote the Supreme Court’s unanimous opinion, sent the matter back to the trial court for a new hearing and concluded: “Nearly every party here sought transparency. Both the arrested individuals and the police officers recorded their actions. The City Council sought to answer questions and explain the City’s response by publicly discussing the facts behind their decisions. And the officers themselves hoped to clear their names by urging the release of all of the body camera videos. Yet, with no explanation, the trial court halted this process, leaving the people of Greensboro in the dark for more than six years. On this record, we hold that the trial court abused its discretion.”

Questions? Comments? What legal topics would you like to see us cover in this space in the upcoming year? North Carolina Press Association members can e-mail us at Best wishes for a happy and healthy 2023 from everyone at Stevens Martin Vaughn & Tadych, PLLC.