Yale Media Law Clinic Releases Paper On Access To Police Body Camera Footage

The Yale Law School Media Freedom & Information Access Clinic has announced the release of a new white paper,  “Police Body Cam Footage: Just Another Public Record,”  which advocates for public access to the footage collected by such cameras.  The white paper

[D]etails the great public interest in disclosure of the images captured by police body cameras and comprehensively demonstrates that standards already well established in state open records laws are more than sufficient to protect privacy and prevent interference with on-going criminal investigations.

By releasing the paper, the clinic is aiming to highlight an issue it believes is frequently ignored in the criminal justice reform discussion. Without public access to body camera footage, the cameras cannot serve their purpose as public oversight tools, the white paper finds. The Clinic encourages state legislatures to preserve public access to body camera footage so that the press, watchdog organizations, and individuals affected by police encounters can collectively work to ensure institutional accountability.

[Disclosure: I am a supervising attorney for the clinic.  I did not participate in the research or drafting of the white paper.]

A Win For Open Government

Last week the state Supreme Court issued an important Freedom of Information Act decision involving records of alleged misconduct by public school and university teachers. Rejecting an argument that such records constituted “records of teacher performance and evaluation,” which are exempt from disclosure under the FOIA, a unanimous Supreme Court held that misconduct records must be disclosed to the public. Mark Pazniokas has an excellent story about the decision over at The CT Mirror.

I write to make two additional points.  First, Justice Eveleigh wrote a clear, cogent and compelling decision for the court, a decision that reaffirms the long-settled proposition that exemptions to the FOIA must be construed narrowly, a proposition too many state and local agencies often forget–sometimes on purpose I think.

Second, the decision undercuts the argument, voiced by some of my friends in the open government community, that the Supreme Court is actively hostile to the FOIA. To be sure, the court occasionally disappoints me when it comes to FOIA decisions. In close cases, I would prefer that it err in favor of, rather than against, disclosure. (See, e.g., my post about a police records decision it released in July 2014.) But I don’t think it is fair to call the court hostile to our state sunshine law.

Oftentimes, the problem lies not with the court, but with the law that it is interpreting, a law that has been amended too many times since it was enacted in 1975. The best way to get consistently “better” FOIA decisions out of the Supreme Court is to persuade the legislature of the value of open government–just look at the mess in Chicago caused by hiding public records about police misconduct–and fix some of the weaknesses with the act.  On that point I’m sure all of my open government friends agree.


A Legal History Of Thanksgiving

From the National Archives:

On September 28, 1789, just before leaving for recess, the first Federal Congress passed a resolution asking that the President of the United States recommend to the nation a day of thanksgiving. A few days later, President George Washington issued a proclamation naming Thursday, November 26, 1789 as a “Day of Publick Thanksgivin” – the first time Thanksgiving was celebrated under the new Constitution. Subsequent presidents issued Thanksgiving Proclamations, but the dates and even months of the celebrations varied. It wasn’t until President Abraham Lincoln’s 1863 Proclamation that Thanksgiving was regularly commemorated each year on the last Thursday of November.

In 1939, however, the last Thursday in November fell on the last day of the month. Concerned that the shortened Christmas shopping season might dampen the economic recovery, President Franklin D. Roosevelt issued a Presidential Proclamation moving Thanksgiving to the second to last Thursday of November. As a result of the proclamation, 32 states issued similar proclamations while 16 states refused to accept the change and proclaimed Thanksgiving to be the last Thursday in November. For two years two days were celebrated as Thanksgiving – the President and part of the nation celebrated it on the second to last Thursday in November, while the rest of the country celebrated it the following week.

To end the confusion, Congress decided to set a fixed-date for the holiday. On October 6, 1941, the House passed a joint resolution declaring the last Thursday in November to be the legal Thanksgiving Day. The Senate, however, amended the resolution establishing the holiday as the fourth Thursday, which would take into account those years when November has five Thursdays. The House agreed to the amendment, and President Roosevelt signed the resolution on December 26, 1941, thus establishing the fourth Thursday in November as the Federal Thanksgiving Day holiday.

Happy Thanksgiving everyone!!!

When Felons Rule, Ctd

A comment posted on my initial post about changing the law that allowed convicted felon Joe Ganim to run for office again pointed out that former Republican candidate for Secretary of State Peter Lumaj made a similar proposal in 2013.  Responding to that proposal, CT Newsjunkie reports that Secretary of the State Denise Merrill “said she had faith in voters’ ability to choose their candidates. She said prior felons running for office was not one of the state’s pressing election issues. Merrill said Lumaj’s proposal also raised constitutional concerns. ‘It contradicts the principle that once you have served your time and paid your debt to society, you can resume as a citizen,’ Merrill said. ‘I’m not sure it would pass constitutional muster.'”

In reading articles about Ganim’s comeback victory, I’ve seen others raise the same concern about whether denying a convicted felon the right to vote and/or run for state or local office would be constitutional.  As I explain below, these concerns are without any basis in law. (Laws that impose limitations on candidates seeking federal office are a different matter and are beyond the scope of this post.) It troubles me that the Secretary of the State would suggest otherwise. Her words carry great weight and authority. She is certainly entitled to express her opinion on whether she thinks such a law would be good public policy. But she should not comment negatively on proposed legislation based on groundless legal concerns.

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Some Thoughts On Stare Decisis And Connecticut’s Recent Death Penalty Decision

In recent weeks, lawyers, the legal press in Connecticut, and this blog, have been discussing the possibility that a pending death penalty case in the Connecticut Supreme Court, State v. Peeler, could overrule the court’s recent decision in State v. Santiago. Santiago held that a statute passed in 2012, which expressly repealed the death penalty prospectively, had the unintended effect of rendering capital punishment unconstitutional under the state constitution for the 11 men already on death row. More accurately, the discussion has focused on whether the Supreme Court should use the Peeler case to overrule Santiago.

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When Felons Rule

So, disgraced public servant and convicted felon Joe Ganim is back in office in Bridgeport, Connecticut’s largest city. As I’ve written in the past, Connecticut law (General Statutes § 9-46a) allows convicted felons to run for office if they have completed their sentence and paid all fines and penalties. What I haven’t discussed is whether I think that law is good or should be changed.

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When Felons Run For Public Office, Ctd.

Well, by a narrow margin voters in the Bridgeport Democratic primary have chosen their former mayor, convicted felon Joseph P. Ganim, to represent them as their candidate in the mayoral election in November.  Unbelievable.

I wrote a post last March discussing the Connecticut law that allows felons to run for public office, but only if they have made “payment of all fines in conjunction with the conviction and once such person has been discharged from confinement, and, if applicable, parole.”  I asked in that post whether Mr. Ganim had, in fact, paid all fines.

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Linda Greenhouse And Connecticut’s Death Penalty Decision

This will may be my last post concerning the Connecticut Supreme Court’s 4-3 decision last week in State v. Santiago abolishing the death penalty entirely.  As a death penalty opponent, I should be pleased with the result.  As a lawyer who cares deeply about the rule of law, I have very serious doubts about the reasoning behind the majority’s decision.

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Sandra Bland And The “Lawful Order” Conundrum

Writing in connection with the Sandra Bland controversy, Orin Kerr has this interesting post over at The Volokh Conspiracy about a citizen’s obligation to comply with a police officer’s orders, for example during a traffic stop.  A citizen must comply with a lawful order but not an unlawful one.  The conundrum? How the heck does a citizen know whether an order is lawful or not?

UPDATE: (7/24/15) Orin Kerr has a follow-up post on this issue.

Judge Kozinski’s “Must Read” Article On Criminal Justice (Or Injustice)

Judge Alex Kozinski is one of our nation’s most thoughtful appellate jurists, having sat on the U.S. Court of Appeals for the Ninth Circuit for decades.  He is generally considered to be a libertarianish conservative. His new article, “Criminal Law 2.0,” recently published in the Georgetown Law Journal, is a must-read for anyone interested in a realistic assessment of our nation’s criminal justice system.

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