By NED OLIVER • Richmond Times-Dispatch
Yesha Callahan’s son called distraught early on a Sunday morning: A Chesterfield County police officer had just drawn a gun on him during a minor traffic stop.
Accounts differ, but through the course of the encounter, the police said the car smelled like marijuana and initiated a search. At some point, police said the Virginia State University freshman reached for his waistband and an officer pulled his gun.
Ultimately no shots were fired, no illegal drugs were found, no traffic tickets were written, and everyone went their separate ways. But Callahan said her son was badly shaken and she, as his mom, wanted to understand what happened. So she filed a Freedom of Information Act request for the footage from the body cameras the two officers who made the stop were wearing.
“I just assumed because there were no criminal charges, no citations, no tickets or anything, that the footage should be readily available,” she said.
It was not. The day after the Feb. 4 incident, the department declined to provide the video, citing an exemption in the state’s public records laws that allows police to keep materials from criminal investigations secret — even in cases that do not result in charges.
Callahan’s experience in Chesterfield isn’t unique in Virginia, where law enforcement agencies have broad leeway to deny requests. And advocates, news agencies and, in this case, concerned parents have found they often do.
“When they roll out these programs and they ask the public to support them, the justification is always transparency and public trust in law enforcement,” said Bill Farrar, a spokesman for the American Civil Liberties Union of Virginia, which has studied body camera policies of Virginia police departments. “So why would they not release footage?
“But what we have found is that they don’t.”
Across the country, law enforcement agencies have adopted different approaches to the issue, and they’re evolving quickly as more departments adopt the technology, which one study showed reduced complaints against officers by 93 percent.
The Las Vegas Metropolitan Police Department allows the public to review footage at the department as long as it’s not still part of an investigation.
Other departments have policies that specifically address use of force incidents. In Chicago, Mayor Rahm Emanuel set a policy of releasing video from police shootings within 90 days of the incident.
This month, the Los Angeles Police Department introduced a new policy in which video of “critical incidents” like shootings by officers would automatically become public within 45 days, according to the Los Angeles Times, which reports that police officials had previously resisted making footage public, fearing it would hinder investigations or provide an incomplete snapshot of the event in question.
The agency overcame those concerns by allowing the police chief to withhold videos with the support of at least two of the five members of the city’s police commission.
In Virginia, state law treats body camera footage the same as every other kind of public record, said Alan Gernhardt, the executive director and senior attorney of the Virginia Freedom of Information Advisory Council.
Richmond, Chesterfield, Henrico and Hanover all have policies governing how and when body cameras are used, but none directly addresses how requests for the resulting footage will be handled, a Richmond Times-Dispatch review found.
Elsewhere in the state, a handful of Virginia departments do skew toward making video available, said Megan Rhyne, director of the Virginia Coalition for Open Government. She pointed to policies in Fairfax County that in January led the police chief to release footage of two U.S. Park Police officers shooting Bijan Ghaisar, a Virginia Commonwealth University graduate, at close range. The decision was regarded as unusual, particularly because the FBI, not Fairfax County authorities, was investigating the shooting.
It’s difficult to determine exactly how many requests departments receive for body camera footage and how many ultimately result in video being made public. Most departments maintain logs of FOIA requests but, in Richmond, for instance, the logs do not include information about the department’s response. And even if they did, it’s common for people to request footage that does not exist on the off chance that it might yield a recording.
Chesterfield police cited similar limitations in providing specific numbers detailing its responses, but spokeswoman Elizabeth Caroon said the department has released 55 body-worn camera videos since the county began equipping officers with the technology — most related to traffic crashes.
She estimated that the department has gotten “few requests for body-worn camera footage from incidents considered criminal.” In at least one case, she said footage was provided but that “to the best of our recollection we have denied two of these requests.”
Farrar, with the state branch of the ACLU, said his organization’s requests for footage have followed police-involved shootings and have all been refused, with departments most frequently citing FOIA exemptions that allow but do not require law enforcement agencies to withhold criminal investigative materials and personnel records.
In the case of Callahan and her son, Chesterfield police ultimately cited both exemptions.
Although the department’s records administrator initially said the department would not release the footage because it was part of a criminal investigation, Caroon, the department spokeswoman, later said in a statement that “internal investigations, including those initiated by community complaints, are exempt from FOIA and it is the department’s practice not to release information related to those investigations, as they are personnel matters.”
Asked about the varied explanations, the department said the administrator who responded denied the request because she considered it a criminal situation. After that, Callahan filed a complaint with the department, making the video part of an internal investigation in the department’s eyes.
Caroon said the encounter is prompting the department to adjust its approach to responding to similar requests in the future.
“We are adding an additional review level for these requests to ensure we are releasing those items we can release,” she said. “We are currently working with Ms. Callahan to set up a time for her to come in and view the video.”
As for the stop itself, Caroon said officers pulled the vehicle over for not making a complete stop before turning right at a red light in Ettrick, a few blocks from VSU’s campus. She said police asked if he had anything illegal on him and he reached for his waistband, ignoring two commands to stop, at which point one of the officers drew his weapon.
Callahan said her son, who declined to be interviewed for this story because he did not want to draw further scrutiny around campus, never ignored any commands and thought he was following the officers’ instructions. She also challenged that the car rolled through the stoplight and that the car smelled like marijuana in the first place, saying she believes her son and his friend, who are black, were profiled by the two officers, who are white.
A journalist who lives in the Washington, D.C., area and wrote about her and her son’s experience on The Root, where she serves as deputy managing editor, Callahan said she’s unlikely to take the department up on its offer to drive to Chesterfield to view the footage she hoped would help explain the situation.
“I’m like two-and-a-half hours away,” she said. “If you’re going to let me see the video in your office, why can’t you just send me the video wherever I’m located?”