WCPO Petition is a Bad Idea

Last week, the Hamilton County Prosecutor held a press conference where he displayed footage from the dashboard camera of Cincinnati Police Officer Tom Sandmann, who responded to the June 19 shooting of Cincinnati Police Officer  Sonny Kim.  The footage showed Officer Kim’s assailant, Trepierre Hummons, aim a loaded hand gun at a probation officer on the scene, and then proceed to walk toward Officer Sandmann, firing the weapon.  Officer Sandmann returned fire and killed Mr. Hummons.   Sonny Kim’s body was captured in the lower right hand frame of the video.  The video exhibited at the press conference pixilated that portion of the video, so that no part of Officer Kim’s body was visible.  

Several local media outlets, including The Cincinnati Enquirer, WXIX and WCPO displayed portions of the pixilated video on their Web sites.  Other media outlets, including WLW-TV and WLW Radio chose not to display any portion of the video.  A group of local citizens has circulated a petition asking for a boycott of WCPO in retaliation for WCPO airing the footage.  While the group certainly has the right to circulate the petition, it is in my view, an uninformed, misguided and unfair reaction.  I believe this for several reasons.    

First, there is tremendous public interest in the video.  A killing by or of a police officer is one of the most profound events in any community.  If the police officer kills someone it is the ultimate act of the state’s power.  If a police officer is killed it is an act that tears at the very authority of the state.  Either way it is hard to think of a matter of greater public interest.  And the particulars surrounding the event matter.  This is especially true in our present environment, where the video occasionally contradicts what would otherwise be the official explanation – see the Sam DuBose shooting here or the Laquan McDonald example in Chicago for two very recent examples.  Given the demonstrated value of body cam and dash cam video, it is not workable for the police or prosecutor to pick and choose which video to release and which to hold.  Every video in every incident needs to be produced – promptly.   The U.S. Justice Department  today announced it is investigating the circumstances surrounding the McDonald shooting.  If the government has discretion over when to release video, it invites this type of abuse and/or suspicion.     

Second, the nature of the video compels its release under Ohio law.  The Ohio Supreme Court has held that incident reports are not investigative records.   The basis for this holding is simply that “[t]he specific investigatory work product exception, R.C. 149.43(A)(2) (c), protects an investigator’s deliberative and subjective analysis, his interpretation of the facts, his theory of the case, and his investigative plans. The exception does not encompass the objective facts and observations he has recorded.  Given this rationale,  the footage is not an investigatory record.  The footage, under any fair interpretation, is nothing more than “objective facts and observations.”  So there is really no legal basis to argue that the confidential law enforcement investigatory record exception applies to this footage.    

Third, the media outlets that broadcast the video acted responsibly.  There seems to be several arguments made against broadcasting the Kim video:   1.   The Kim and Hummons families requested it not be broadcast;  2.  There is no news value in broadcasting it;  and 3.  There are no questions about what happened.  Let’s address these arguments in reverse order. 

First, as a matter of fact, there were questions about what happened that day.  I am in no way endorsing the views of the activist Nate Livingston, but he’s very engaged on social media and he consistently raised questions about what happened that day.  Here’s a typical post:  KHANITA MASTON, TREPIERRE HUMMONS’ mom, was at the scene when cops GUNNED HIM DOWN. She says nobody helped her son after the cops FIRED 20 OR MORE BULLETS AT HIM. This sounds like DELIBERATE INDIFFERENCE to me. But is it ILLEGAL. The fact that the video debunks Livingston’s rants makes it worth showing for that reason alone. 

In addition, the Prosecutor himself raised questions about the event on at least two occasions.  First, he issued a grand jury subpoena for the footage.  There was no need for him to do that (he could have viewed the footage without issuing a subpoena), and it is unusual for a prosecutor to utilize a grand jury to investigate an officer involved shooting.  So his decision to use the grand jury suggests there were questions about what happened that day.  And the Prosecutor also made the decision to show the video at his press conference.  That indicates he felt the video clarified and/or amplified his conclusions.  That is another reason why it should be broadcast.  In what other setting would the media not show materials displayed by a prosecutor at a press conference? 

And this point answers number 2 as well.  To the people who say the media should have simply described the events on the video without showing it, I would ask, then why didn’t the Prosecutor do that?  He must have concluded that showing the video was a more effective means of explaining the events than mere text.  The media outlets that showed the video made the same judgment. And finally, there is great news value in showing the public what type of danger police face every single day.  The media can write all kinds of prose about how dangerous it is to face gun fire, but printed or spoken words cannot do justice to the reality this footage captures.  The overwhelming majority of police officers are heroes.  Officer Sandmann surely is.  This footage is a vivid reminder to those cynical members of the public just how dangerous a police officer’s job can be.  It is good for the public to see it, not just read about it.

Finally, as to point 1, of course it is important to be sensitive to families of victims, but it would be irresponsible to give them veto power.  No doubt, many families would prefer that there be no coverage of sad and tragic events affecting them, but how would the media work if that were the deciding factor?  Should the DuBose family have been given the power to stop the broadcast of his shooting by Officer Tensing, given its serious news value? Sadly, nothing can bring Officer Kim back to his family’s loving arms, but the pixilation of Officer Kim’s body showed respect for his family’s wishes. 

The events of June 19 were tragic.  No one debates that point.  But fair minded people can and did come to different views on how to address the Kim video.  WCPO made a conscientious decision in the interests of its viewers.  It does not deserve to be punished with an ill-conceived petition drive.