What Is Conveniently Missing From This New Law??

The North Carolina General Assembly recently enacted S.L. 2016-88 (H 972).  This legislation addresses the disclosure by law enforcement of body-worn and dashboard camera audio / video.  This bill amends N.C.G.S 132-1.4A, which addresses when Police must or may disclose audio / video captured by body cameras, dash cameras, or another other recording device operated by law enforcement, or on its behalf, when carrying out law enforcement responsibilities.  The new law is effective October 01, 2016, applying to all requests made on / after such date. 

So let's take a closer look at what the North Carolina legislature has been up to:

The new statute declares such recordings are not public records under N.C.G.S. 132-1 or personnel records under N.C.G.S. Chapter 126, G.S. 160A-168, or G.S. 153A-98.  The law states that the head of a law enforcement agency may only disclose a recording to a person whose image or voice is in the recording and specified personal representatives of that person whose image or voice is in the recording (i.e., personal representative of minor, deceased person, incapacitated person). The statute sets out the factors an agency may consider in determining if a recording is to be disclosed (confidentiality, administration of justice, ongoing investigations, etc.).  If the disclosure is denied, the party may appeal to Superior Court.    

So, the legislature specifically excluded these recordings from public records and personnel records to thwart the publics access to this documentation.  The legislature then set out a bureaucratic procedure to obtain the recordings, limiting the disclosures.  Disclosure requires a court order.  In the likely event law enforcement denies a request, a party may undergo the burden of an appeal to Superior Court.  Of course, the legislature has now heaped yet another unnecessary hearing upon the underfunded / overcrowded courts.  

Of note, the legislature was sure to insulate law enforcement from any foul play.  A court may not award attorney fees to any party to a lawsuit brought pursuant to the statute.

In the realm of criminal proceedings, Police should disclose the recordings without a court order to the District Attorney.  According to the law, the District Attorney can then review criminal charges to comply with discovery requirements in a criminal prosecution, for use in criminal proceedings in district court, or any other law enforcement purpose.  Of note, there are fewer attorneys than ever in the legislature.  They are arrogant, and they don't care to ask any questions regarding how things actually work in practice.  For instance, many prosecutors love to argue "there is no discovery in district court", which leads to an interesting argument regarding traffic / DWI charges.  This legislation provides Police only have to produce the recordings to the State, which is quite the overreach.  Fortunately, the Charlotte / Mecklenburg County defense bar has worked out a solution with the local District Attorney regarding such recordings which seems to address this issue.  I remain optimistic this working relationship will continue, regardless of the legislation that results in Raleigh.  

Our North Carolina legislature has continued to pass laws that define common sense in a number of areas that have real significance for everyday life.  I unfortunately expect this to continue given the people I see running for office, and particularly their platforms.  It is increasingly important for individuals seeking legal advice to retain an attorney with experience, who understands the legal aspects, yet also has real practical sense.  I hope to assist my clients in Charlotte as we continue to navigate these difficult times.