MINNEAPOLIS (Legal Newsline) - Minnesota Attorney General Keith Ellison has so far refused to release bodycam footage of the arrest of George Floyd as some wonder about the build-up to a Minneapolis police officer fatally restraining the man by forcing his knee on Floyd's neck for nearly nine minutes.
Prosecutors can withhold video and other evidence as long as there is an active criminal investigation under Minnesota’s Government Data Practices Act, which otherwise presumes “government data are public and accessible to the public for both inspection and copying.” A spokesperson for Minnesota Attorney General Keith Ellison said “the case is still under investigation” and “it is too soon to say when body camera footage will be released to the public.”
When asked in a follow-up email what would be the reason to withhold all footage - given its importance to the public irate at another killing of a black man by a cop - the spokesperson did not respond.
It may not matter much when the George Floyd video is released. Bystanders captured what are likely the most important moments on their cellphones, including the nearly nine minutes Officer Derek Chauvin pressed his knee into Floyd’s neck, as Floyd cried out in pain and said he couldn’t breathe. Floyd, 46, was unresponsive when he was carried into an ambulance, where emergency personnel were unable to resuscitate him.
There are no firm rules on when investigators must release video evidence to the public, said Zorislav R. Leyderman, a Minneapolis attorney who represents plaintiffs in lawsuits against the police.
“I suspect in George Floyd’s case there will be some demand for the release of the bodycam video but it may not be as strong as in other cases where there was no video,” Leyderman said. ‘The public already sees the majority of the story through the bystanders’ video.”
Chauvin’s lawyers may argue he needed to restrain Floyd, but there’s not much question the officer used unreasonable force to hold the suspect down minutes after he had ceased struggling. No amount of bodycam video is likely to contradict the graphic scenes of the officer with his knee on an unconscious Floyd’s neck.
Where video evidence plays a decisive role is in cases where the police officer says force was justified and the plaintiff disagrees. Under current U.S. Supreme Court precedent, police can cite “qualified immunity” and have lawsuits against them dismissed unless their behavior violates “clearly established statutory or constitutional rights” that a “reasonable person” would have known. Minnesota courts routinely dismiss police brutality and racial discrimination cases on those grounds.
Bodycam video can help determine whether qualified immunity applies, said Leyderman. His client Brittni Gaines won a $59,000 settlement from the City of Minneapolis last month after bodycam footage showed a police officer grabbed her from behind and threw her to the ground because she had walked in front of traffic. The camera captured the officer saying “You play stupid games, you get stupid prizes," to Gaines, who admitted to being drunk, and a federal judge found there was no evidence the woman resisted arrest or needed to be restrained.
“If you’ve got a police officer who says the suspect fled and the suspect says they never fled, then you can look at the video and decide,” Leyderman said.
Video also helps determine if the police used appropriate force in a particular situation, he said. Suspects often resist arrest, but that doesn’t give police a blank check to use overwhelming physical force. If someone is using passive resistance and laying limp on the ground, for example, video showing police using a taser could be decisive in a lawsuit claiming a constitutional violation.
Sometimes the video exonerates the cops, and Leyderman said he “absolutely” declines cases where the video doesn’t support a claim.
“But I’ve also had clients come to me with facts that nobody would ever believe if there wasn’t a bodycam available,” he said.