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 1. News




UNLIKE IN MEMPHIS, MONTGOMERY POLICE FIGHT RELEASE OF BRUTAL BODYCAM FOOTAGE


 * Published: Feb. 06, 2023, 7:30 a.m.

Jacqueline Thomas comforts her mother Lizzie Mae Pettaway. Joseph Pettaway died
in July of 2018 after being bitten by a police K9. (Joe Songer |
jsonger@al.com).Joe Songer | jsonger@al.com

 * 
 * 
 * 
 * 

By
 * Ashley Remkus | aremkus@al.com

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.”




And though more than four years have passed since the fatal bite, the public
still can’t see the bodycam video and judge what happened for themselves because
the city wouldn’t release it and now it’s under a confidentiality seal in a
federal lawsuit against the officer. Echoing the debate in Memphis last month,
Montgomery has even argued in court filings that this bodycam video could cause
riots.




That’s not an unusual result in Alabama, as the public seldom gets to see
bodycam footage when the police injure or kill someone. Unlike in Memphis, where
city officials recently released video showing officers beating, punching and
kicking Tyre Nichols, in Alabama police do not have to share bodycam footage and
rarely do. One department in north Alabama even withheld footage while asking
the public to pay blindly for an officer’s legal bills as he stood trial for
murder in an on-duty shooting.




“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.”




Secret video




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.




“Here, Barber did not give an adequate warning with sufficient time for Pettaway
to respond, and perhaps, surrender,” she wrote in the order.




[Read our series Mauled: When police dogs are weapons]




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.




The Pettaway family at their attorney's office in Montgomery. Left to right:
sisters Nancy Pettaway, Patricia Pettaway and Jacqueline Thomas, mother Lizzie
Mae Pettaway, sister Yvonne Frazier and bothers Walter and Otis Pettaway. Joseph
Pettaway died in July of 2018 after being bitten by a police K9. (Joe Songer |
jsonger@al.com)Joe Songer | jsonger@al.com




Winston Sheehan, an attorney for the police and Montgomery, declined to comment
for this article.




Chip Nix, an attorney for the Pettaway family, also declined to elaborate on the
case, citing the upcoming civil trial slated to begin in March.




“We have an obligation to the court, to the bar and to our clients to try this
case in the courtroom,” Nix told AL.com. “We are diligently preparing and
intently looking forward to doing just that.”




‘Closed records act’




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.




[Read more: Alabama police already shielded bodycams. Now they know they don’t
have to show the public.]




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.




‘It’s like they don’t exist’




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.







Sometimes it takes massive public protest, and even then Alabama is often slow
to make public video records.




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.




“What I want to do is leave people to see the video for themselves and they have
to determine, if this was them or one of their loved ones, how would they
characterize it,” Crump told FOX 13 News in Memphis.




At other times, courts have had to step in for the public to see bodycams in
Alabama.




In 2021, a judge, overriding a last-ditch fight from Huntsville city, allowed
the public finally to see a shooting of a suicidal man that led to murder
charges against the officer and divided local officials for years.




Huntsville initially assured the public the officer acted within policy. The
city council voted to spend taxpayer money on the officer’s criminal defense
without watching the video. The mayor and police chief even took issue with the
district attorney for bringing charges and then the jury for its guilty verdict.




In the end, that officer, William Ben Darby, was sentenced to 25 years in prison
for killing Jeff Parker. And only after that conviction, more than three years
after the shooting, did the public finally see the footage.







Martin Weinberg, a civil rights attorney, represents the Parker family. He said
that even in cases where the police did not violate the law, there are still
lessons to be learned from such footage. He said that in cases of alleged use of
force, initial reports by police often conflict with what the evidence
eventually shows.




“In order to do anything about grave injustices, we have to see it,” said
Weinberg. “It’s like they don’t exist if you don’t see it.”




‘A better response’ in Memphis




Nix, who represents the Pettaway family, did comment on the more general
difficulties in obtaining bodycam video in Alabama. He said that videos like
those showing the beating of Nichols in Memphis, demonstrate that police abuse
of power happens “all too frequently.”




Nix said that “the most effective deterrent to police abuse of power is
sunshine. In other words, the images of these events should be quickly released
to the people who can really make a difference — the public.”




Video released in Memphis showed five officers brutally beat 29-year-old Nichols
as he called out for his mother. Like Pettaway in Montgomery, Nichols, a Black
man, died at a hospital after suffering severe injuries. In an interview in
2020, Pettaway’s mother told AL.com that police would not tell her what happened
to her son and she could not find any information until the next day. The family
wouldn’t see the video for two years, and even then, under the condition that
they not share it with the public.




In Memphis, the public saw the Nichols video less than a month after Nichols
died and just one day after the five officers were charged with murder. Despite
concerns from city officials that releasing the video could lead to civil
unrest, protests in Memphis did not lead to riots.




A day after releasing the video, the Memphis police chief announced reforms,
including disbanding the unit where the officers worked.




Weinberg, the civil rights attorney, said the way Memphis responded to the
Nichols case — quickly releasing video, firing the officers and enacting reform
— may have tamped down the public response to the horrific video.




“I don’t want to totally say they did everything right, but it’s a better
response than we’ve gotten in most of these situations,” he told AL.com.




He said it’s “ludicrous” to argue for hiding evidence of police violence by
arguing it could prompt a violent reaction by the public.




“It’s unAmerican to say we have to control for things that might happen,” said
Weinberg. “There’s no valid reason to hold something back because of what the
public reaction might be.”




Nix said that when the police conduct is in question it’s important to quickly
get the video and other information to the public.




“Reform needs to take place, not five years after the event, but quickly,” he
said.




Chavez said that delaying the release of videos until years after an instance of
police misconduct “undermines accountability.”




“After that long, if there was misconduct, that officer could be long gone in
another department,” he said. “And, if there’s policies that need to be changed,
you’re potentially talking about working under ineffective or dangerous policies
for years before anyone addresses it. It’s bad for citizens, but it’s also bad
for police.”




In the Pettaway case in Montgomery, police initially said simply that a burglary
suspect died at the hospital after a K-9 “apprehended” him inside the Cresta
Circle home. Barber continued to work in the K-9 Unit and did not face
discipline over the deadly encounter.




But just last week, more than four years after the fatal bite, the public got
its first clear indication that a judge believes something went wrong in that
home.




“A reasonable officer would not need prior case law to know that sending an
off-leash canine into a surrounded home before adequately communicating with a
solitary suspect or providing that suspect an opportunity to respond, in
violation of department policy, constitutes excessive force,” Judge Marks wrote
last week, while allowing the family’s suit to go forward against the former K9
handler.




Chavez said that police often push back against releasing videos because they
argue that the public won’t see the footage with the full context of the
situation. Lawyers for Montgomery made that argument in their fight to keep the
Pettaway video under seal.




“Viewing Officer Barber’s body camera footage out of context and with no further
explanation would lead the jury (and public as a whole) to arrive at a
conclusion based solely on emotion,” the lawyers wrote in court records in 2020.
“The jury would be influenced by the depiction of events that suits Plaintiff’s
narrative. Not to mention the potential of creating and/or facilitating civil
unrest based on the graphic images alone.”




Chavez said he welcomes and encourages police to provide any and all context to
the public when viewing a case of alleged misconduct.




“There’s nothing that would stop the public from being able to assess the
situation with all those additional details,” he told AL.com.




“But I don’t think it’s outside the ability of the public to be able to
understand what’s happening in these police incidents. You can see in videos
like the one out of Memphis that what’s happened is clearly wrong. I don’t see
why other videos would be any more confusing for the public to understand.”





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