Tuesday, February 7, 2023

About 90 million U.S. adults have viewed the Tyre Nichols beating video, but similar footage in Alabama city has remained under wraps for four years

Joseph Pettaway (Atlanta Black Star)

Today marks one month since the fatal beating of Tyre Nichols at the hands of Memphis police officers. In that time, almost 90 million adult Americans have viewed at least part of the video, according to data from yougov.com and U.S. demographic statistics at infoplease.com. Many of those viewers have described Nichols beating death as "senseless," while others compared the police actions to "torture."

At the same time, video of a similarly gruesome incident -- this one showing a police dog being unlawfully released to inflict fatal wounds on a black man -- has existed in Montgomery, AL, but it has been kept from public view for four years. 

Why the difference? An article at al.com shows that Alabama police departments have a history of fighting the release of unflattering videos -- and courts tend to let them get away with it. In an article titled "Unlike in Memphis, Montgomery police fight release of brutal bodycam footage," reporter Ashley Remkus writes:

Despite a court ruling suggesting that Montgomery police used excessive force, and despite the family’s call for the body camera footage to be made public, the four-year-old video of a police dog biting and killing a Black man remains private.

A federal judge last week denied immunity for Montgomery K-9 handler Nicholas Barber, ruling that a reasonable officer would know that sending the dog off-leash into a surrounded home before giving a suspect a chance to speak or surrender “constitutes excessive force.”

It's not like Montgomery is a backwater. It's Alabama's capital and the state's second largest city (behind Huntsville, per 2023 data; Birmingham is third). Montgomery is home to nine colleges and universities. While Montgomery might sound like a fairly enlightened place, it is in a state that has a history of being deferential to law enforcement -- and that apparently is not going to change soon, reports Remkus:

“Body cameras were sold to the public as a transparency tool,” said Chad Chavez, of Citizens for Criminal Justice Reform, a group that advocates for greater accountability and transparency in policing in Alabama. “The pitch was that it would give more clarity to citizens about what the police are doing.”

Yet cities and police departments in Alabama often fight for years to keep the videos hidden from public view.

That’s what happened in Montgomery, where police ignored or denied media requests and where the family of Joseph Pettaway has fought in civil court for more than two years to make the footage of his death public. The city has fiercely fought the release.

In court records in 2020, Montgomery’s lawyers said that releasing the footage has “the potential of creating and/or facilitating civil unrest” and would expose the city and its officers to “annoyance, embarrassment, oppression, and undue burden.”

In an order late last year denying the family’s latest request to make the footage public, U.S. Magistrate Judge Jerusha Adams cited the upcoming civil trial and the “graphic nature and emotional impact” of the footage.

Judge Adams wrote of the Montgomery video: “Due to its graphic nature and emotional impact, the footage from the police body cameras cannot be unseen, ignored, or easily set aside.”

How to explain Adams' ruling? Well, Adams used to be a partner at Capell & Howard, and an Alabama legal insider has described that as "the office used by Karl Rove when he holds meetings in Alabama." The firm also has represented longtime Rove associate Bill Canary and the Business Council of Alabama. Adams apparently cited no law to support her ruling, so the public can only guess at her reasoning. In her own words, she considered the footage "graphic," so that means the public should not see it. Given that most footage of police-related deaths probably is graphic, that "reasoning" makes little sense. 

Remkus still manages to provide some background about the incident, the video, and the Pettaway family's efforts to shine light on the Montgomery PD:

Pettaway died on July 8, 2018 after the dog bit his femoral artery.

Police got a call that night about a possible burglary inside a small home that did not have electricity or water service. The dog found 51-year-old Pettaway under a bed and grabbed him with his teeth. Pettaway’s family said he was staying in a house he had been helping to repair earlier that day.

The dog, Niko, bit him for about two minutes until Barber handcuffed Pettaway and choked the dog to get him to release the bite. Emily C. Marks, the chief judge in federal court in Montgomery, in her order this week, described a bloody scene from the bodycam video as police dragged Pettaway outside to lie on the sidewalk and wait for an ambulance.

Judge Marks wrote that Pettaway was not resisting or making threatening movements when Barber released the dog to bite him.

The Pettaway family’s lawyers first saw the sealed copies of the bodycam video two years after the fatal bite. While barred from sharing it, they described the footage in a court filing.

About five minutes after the bite ended, the filing says, another officer outside asked Barber, “Did ya’ get a bite?” Barber responded, “Sure did, heh, heh (chuckling).” The officer asked: “Are you serious?” Barber replied. “F**k yeah.”

Barber testified in a deposition that he had to choke the dog until it could not breathe and was nearly unconscious in order to get Niko to let go of Pettaway’s groin.

While the judge kept the lawsuit moving forward on an excessive force claim against Barber, she dismissed claims against the city, its former police chief and other officers. Barber no longer works for the Montgomery Police Department.

Alabama's problems with police transparency can be traced, in part, to the state's dysfunctional judicial system:

In Alabama, police are not required by law to release bodycams or dashboard camera videos to the public.

Just two years ago, the state Supreme Court settled the debate on whether the videos are public records. In an 8-1 decision in 2021, the court ruled that videos, recordings of 911 calls, photos, autopsy records, emails and texts are considered investigative materials and therefore exempt from disclosure under the Open Records Act.

Tom Parker, the chief justice of the Alabama Supreme Court, was the lone dissent. He wrote that the ruling “shrinks the right of the people of Alabama to the vanishing point.

“After today, as to law-enforcement agencies at least, the statute might as well be titled the Closed Records Act,” Parker wrote.

That Parker, a Roy Moore acolyte, is a voice of reason, suggests Alabama's high court leans way to the right -- and it likely is predisposed to favor law enforcement. The Alabama Supreme Court, it seems, was protecting the status quo, Remkus reports:

That decision came after Lagniappe, a weekly newspaper based in Mobile, sued the sheriff of Baldwin County for videos and other records of a deputy shooting and killing a man in 2017.

But even before that ruling, police rarely, and almost never quickly nor completely, released bodycam videos, not even in the most controversial cases.

In the rare instance that police release bodycam footage in Alabama, the video is often edited or shows only snippets of what happened and tends to involve cases in which the video might help clear officers in the public view.

“It brings a distrust in the police department by the citizens because they are releasing only the portion they want you to see,” said Bernard Simelton, the president of the Alabama NAACP. “If they release the entire video, we’re smart enough that we can look at the video and tell if the person is resisting, if the person went for the police officer’s gun, if he had his hands behind his back.”

In 2020, after surveillance video showing a Decatur officer punch a liquor store owner in the face circulated on social media, police called a press conference and showed news reporters an edited clip of bodycam footage.

But even before that ruling, police rarely, and almost never quickly nor completely, released bodycam videos, not even in the most controversial cases.

After clearing an officer of criminal charges in the 2018 fatal shooting of E.J. Bradford at the Riverchase Galleria south of Birmingham in Hoover, a case that led to repeated protests through the mall and throughout the city streets, the Alabama Attorney General’s Office released surveillance footage of the Thanksgiving night scene. It took two and a half months.

And it took pressure from some of the same people who fought for the video to be released in Memphis. Ben Crump, a national civil rights attorney, took the case in Hoover and pressured Alabama to release the mall footage, saying, “If you want us to believe you are handling this case appropriately, then you need to release the video.”

Crump also represents the Nichols family in Memphis, where the city agreed under pressure to release the video.

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