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Effort to get Jamar Clark videos released focuses on a unique — and untested — provision in Minnesota's data law

Protesters outside the Fourth Precinct last November
MinnPost photo by Brent Moore
Protesters outside the Fourth Precinct last November holding up a banner stating "Release the tapes."

In early February, when lawyers from Maslon LLP announced that were filing a lawsuit in Ramsey County Court on behalf of the ACLU of Minnesota and NAACP Minneapolis in order to force the state of Minnesota to release video related to the shooting death of Jamar Clark, the move was met with a fair amount of skepticism.

Why not wait until the investigation of the shooting of the 24-year-old Clark by a Minneapolis police officer is complete, the leaders of the two groups were asked. Couldn’t the release of videos potentially taint eye-witness testimony? Might it subject the city to civil suits? Isn’t the footage exempt from disclosure under Minnesota’s Data Practices Act (DPA)? Why not trust the system?

To those questions, ACLU Executive Director Charles Samuelson responds: “We are trusting the system.” 

In fact, the two organizations are using a novel provision of a state law that is particularly relevant to the facts in the Clark case, Samuelson said, to argue that the video footage should be made public — an effort that may not be as farfetched as it initially appeared.

A public benefit exemption

The DPA declares that data about the police’s ability to “cite, arrest, incarcerate or otherwise substantially deprive an adult individual of liberty shall be public at all times.”

And while the same law does provide a temporary shield for investigative data “collected or created by a law enforcement agency in order to prepare a case against a person,” that exemption has its limits.

First, as the suit points out, the DPA makes such data nonpublic “only while that investigation is active.” Moreover, even when an active investigation is under way, the law creates an opening for challenging the failure to release information, a process that allows a judge to “consider whether the benefit to the person bringing the action or to the public outweighs any harm to the public, to the agency or to any person identified in the data.”

That’s the provision under which the NAACP and the ACLU are looking to have the Clark videos made public. 

“This is not a law that we and the NAACP created,” Samuelson said earlier this month. “This law is 50 years old. You guys use it all the time — the press does — to get information from government. And the community is also entitled to get that information. This is public information.”

The meaning of an 'active' investigation

The day after the lawsuit was filed, the state Bureau of Criminal Apprehension, which took over the Clark investigation from the Minneapolis Police Department, announced that it had completed its investigation. Its report was delivered to Hennepin County prosecutors on Feb. 10. But there is no word yet as to when the video recordings that might have captured the shooting will be released.

At a press conference in November, BCA Superintendent Drew Evans said releasing the videos “would impact the integrity of the investigation that’s ongoing currently, and would impact the integrity of the eventual prosecutorial review process that will be pending at the conclusion of our investigation.”

The DPA defines an investigation as active up until one of several possible things happen: either a decision is made not to file charges; the data is presented as evidence in court; or — if the data was not used as evidence — all court appeals have been exhausted.

Which means there is plenty of time that the videos could continue to be considered nonpublic by the BCA, barring a court ruling to the contrary.

No precedent in Minnesota

Haley Schaffer, a Maslon attorney working on the lawsuit, said there is no precedent for using the court review clause to win release of investigative data. But there are cases in other states where public-information laws were used to gain release of police-shooting video. While those cases can not be used to show precedence in Minnesota, they can be cited because they have similar aims: to overcome privacy or investigative exemptions if the public benefit outweighs those considerations.

The most-prominent case is from Illinois, where a freelance journalist filed a lawsuit under that state’s freedom of information law for all video related to the shooting death of Laquan McDonald in October of 2014. A court ordered the release of video from a police dashboard camera of the shooting last November. It was released just after the officer who fired 16 shots at McDonald was charged with murder. (For his trouble, the journalist, Brandon Smith, was blocked from attending a press conference where the mayor and police chief talked about the released videos.) 

In separate actions, news organizations in Chicago — including the Chicago Tribune — used the open government law to win release of other videos, such as those from security cameras in and around nearby fast-food restaurants.

In a New Hampshire case, the state’s open government law was used by media organizations to gain partial release of videos showing the death of Hagen Esty-Lennon, who was shot by two police officers. In that case, the dead man’s family sought to prevent release on privacy grounds. A judge reviewed the video in chambers and decided that all but four minutes of the video and all of the audio should be released. The footage that was released showed the most graphic aspects of the shooting.

An evolving attitude about releasing data

The release of any video showing the Clark scene, which took place on Nov. 15 near a North Minneapolis Elks Lodge, has been one of the demands made by the NAACP, Black Lives Matter and many community members interested in the case. After Minneapolis officials were pushed to release the footage, those officials said they didn’t possess the recordings, since the investigation had been turned over to BCA. BCA brass, meanwhile, repeatedly cited the active investigation exemption under DPA as its justification not to release them.

In the lawsuit, the plaintiffs argue that if there was ever a set of circumstances that would trigger the court to conduct a balancing test, it’s the Clark case. “It is in the public’s interest to know what happened to Jamar Clark,” said NAACP President Nekima Levy-Pounds. “We should not have to wait over a year, as in the case of Laquan McDonald in Chicago, for us to find out what happened between the Minneapolis police department and Jamar Clark.”

As the lawsuit argues: “Secrecy and lack of transparency has served to deepen the chasm between police and the community by reinforcing the community’s fear that police will not be held accountable for their acts of misconduct.”

NAACP President Nekima Levy-Pounds
MinnPost photo by Peter Callaghan
NAACP President Nekima Levy-Pounds: “It is in the public’s interest to know what happened to Jamar Clark.”

After pointing out that there are several different, and conflicting, versions of the shooting — from eyewitnesses and the officers involved (via comments made by the president of the MPD police union) — the suit asserts that the release of the videos “may help the community to come to a collective understanding about what occurred the night Jamar Clark was killed.”

“Until the community is given some measure of transparency through the release of the videos, the relationship between the community and the police department cannot begin to be repaired,” notes the suit.

There has also been a change in the views of some police and politicians regarding when video evidence should be released. Chicago Mayor Rahm Emanuel endorsed a task force recommendation that video and audio recordings be released to the public within 60 days of an incident. And the Star Tribune recently quoted Minneapolis Police Chief Janeé Harteau supporting a more flexible policy. “People tend to create a narrative they want to create, and the sooner we can release the videos along with the facts, the better,” said Harteau, who wasn't speaking specifically about the Clark case. 

The plaintiffs have yet to get before a Ramsey County judge, though Schaffer hopes that happens soon. “We are available and willing to take this to the judge as soon as they are willing to hear us,” she said. 

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Comments (10)

Enough is enough

At this point I have to line up behind BLM and the ACLU etc. I can't imagine what kind of investigation is taking place at this point. We know who was shot and we know who shot them, that has never been in question.The witnesses must have been interviewed by now, and the video must have been studied. We've been told that this investigation is on the front burner, I'd hate to see an investigation on the back burner.

The refusal to release this video now makes no sense whatsoever on any level or according to any logic. I supported the initial refusal to release the video immediately after the shooting under the pretext that an investigation was ongoing, but I don't see how anyone can claim at this point that the investigation is still ongoing? The only real fact in dispute is whether or not Jemar was shot while handcuffed and I can't believe it takes this long to figure that out. This didn't happen in a dark smoke filled room, it happened in front of multiple witnesses on a clear night next an ambulance. The authorities are simply demolishing their own credibility at this point by refusing to conclude the investigation and release the video.

"Community" will not release video

We have read numerous times the "community" has not cooperated with the investigation, not providing smartphone video they claim to have.

"Numerous times"

Where have you read this "numerous times"?

Cites, please.

"Numerous?"

That's very interesting. I looked for some of these "numerous" items you mention, and found nothing that even suggested such a thing.

I know that zero is a number, but I don't think that is what is meant by "numerous.'

Release of tapes

Well,having been an investigator in two states there are always a minimum of two investigations, one by law enforcement and one by the District attorney's office. The DA's office does not always redo the police investigation, but often has questions for law enforcement to answer or further work for LE to do. Once that is completed the DA's office then has to put a case a together and see if they can charge anybody. That takes time and research. I have worked homicides that have taken several years to complete.

Great Summary

The District of Attorney has explained this all very clearly, yet the BLM folks seem to want by pass due process and pass judgment. It is sad when a lawyer is "demanding" that the legal system violate it's processes for their own gain.

"The Minnesota Bureau of Criminal Apprehension announced Wednesday that it has completed its investigation into the fatal police shooting of Jamar Clark in North Minneapolis and handed over its findings to the Hennepin County Attorney’s Office. Hennepin County Attorney Mike Freeman said he would like to decide whether to pursue charges in the case by the end of March. Prosecutors plan to review the BCA file and determine if additional investigation is needed."

Calm Clarification

Thank you (both) for straight information on a topic that seems to follow the curvature of convenience.

Why does MinnPost persist in re-working old headlines? What is the editorial agenda?

Just a few additional points Ken

It appears some people believe a case being on the front burner means its the only case the BCA is working. I'd guess the BCA cops have 25-30 ongoing cases, all of which, given the circumstances, deserve at least as much attention as this one.

There also appears to be an assumption that the cops are the reason for the delay. Often times it's the witnesses that delay giving their evidence to the police, or simply outright refuse. And the cops need to bend over backwards to make sure they document their efforts to reach these people.

To me, the most glaring fact is that we've yet to see any cell phone or other video taken by bystanders. Had those videos shown anything, the ACLU and BLM would have been out in front of the 4th Precinct showing that footage months ago. The fact that that hasn't happened speaks volumes.

Speaking Volumes

Is it possible that there are no spectator videos? That would not strike me as particularly suspicious.

Fair points...

A reasonable person of these times would wonder about the absence of the ubiquitous bystander photos.

True, this may be the exception that proves this present rule of all gatherings.

Perhaps such video capture has been obtained and is also held as evidence.

Still, this point is worthy of question and of reasonable answer.