“Can we deny/delay?” a top city attorney wrote in a flurry of emails between city officials.
The video was ultimately given to Prude’s family after a months-long legal battle and made public, sparking outrage and protests and costing the police chief his job.
The case highlights what some families, victim advocates and lawyers say is a persistent issue amid a nationwide push for police transparency: As viral videos bring unprecedented scrutiny to police officers’ use of force, they allege that authorities are using and sometimes abusing the law to deny and delay the release of police records.
Laws in many states create broad exemptions allowing police and other authorities to keep records secret. Officials often cite “ongoing investigations” as the reason, without explaining why releasing a dashboard-camera video or documents would cause harm. In some cases, including Prude’s, these laws are used by authorities against the wishes of a family that wants records made public.
Police and municipal officials say they are following long-standing rules to guard people’s rights and the integrity of investigations and court cases.
The Rochester video shows officers forcing Prude’s head and neck onto the pavement. He died a week later in what a medical examiner ruled was a homicide caused by “complications of asphyxia in the setting of physical restraint.” Prude, who was in the throes of a mental health crisis, also had PCP in his system.
Rochester Mayor Lovely Warren (D) said she was told that Prude died of a drug overdose. In an April email to a city spokesman, former Rochester police chief La’Ron Singletary wrote that Prude’s death was deemed a homicide with three “attributing factors”: “PCP in his system,” “Excited Delirium” and “Resisting Arrest.” Emails and other documents related to the case were made public as part of an inquiry this month by the city’s deputy mayor.
To hide the full picture, “the city was grabbing at any excuse that they could,” said Elliot Shields, an attorney for Prude’s family.
Several city officials and the police department did not return requests for comment. Rochester police have said the department is unable to comment on Prude’s case because of an ongoing investigation.
The information police and other officials release about shootings by officers, deaths in their custody and other uses of force can vary widely from state to state and from agency to agency. But the patchwork of rules governing the United States’ 18,000 police departments tends to favor secrecy, said David Harris, a law professor at the University of Pittsburgh.
“State law and local law and rules have been designed to shield police from accountability,” Harris said. “The assumption within law enforcement has been: Citizens don’t need to know this, they won’t understand it, and we’re not under any obligation to share it.”
In Minnesota, where George Floyd died in May after a police officer knelt on his neck for about eight minutes, laws shielding records during ongoing investigations — until criminal appeals are exhausted, state police say — meant that body-camera footage of Floyd’s death became public only after it was filed in court. The public knows little about 16 of at least 17 complaints filed against the officer during his two decades on the force, because police personnel records are largely governed by the same privacy laws as other government employees. Details are released only if a complaint led to discipline.
“We have released what we’re able to release out of the personnel files,” said Minneapolis police spokesman John Elder, who said the department only wants to follow the law.
Elsewhere, police have turned to controversial legal interpretations to justify withholding records, prompting accusations that they are misusing laws created for very different purposes.
The Florida Police Benevolent Association in June sued the city of Tallahassee to prevent officials from releasing the identities of two police officers involved in fatal shootings, arguing that the officers “were victims of separate, aggravated assaults.”
The legal fight centers on a 2019 state constitutional amendment billed as a crime victim’s bill of rights. Known as Marsy’s Law, it says victims have the right to be free from intimidation and the ability to keep “information or records that could be used to locate or harass the victim or the victim’s family” from being released.
The union is arguing that “Marsy’s Law should apply to the police just like it applies to anyone,” said Pamela C. Marsh, president of the First Amendment Foundation, a Florida nonprofit that intervened in the case. “But police aren’t just anyone.”
In July, Florida Circuit Court Judge Charles W. Dodson rejected the union’s argument, saying the law’s language was not intended to cover police officers “acting in their official capacity.” One officer shot someone pointing a gun at him and the other shot someone wielding a knife in a threatening way, Dodson said, but under the union’s argument, “officers could act with virtual anonymity.”
The executive director of the Florida Police Benevolent Association did not respond to an interview request. The organization is appealing Dodson’s ruling.
Departments have cited the privacy of those injured or killed to avoid releasing records. The New York City Police Department sought to withhold 18 minutes of video, most of which was recorded in 2017 immediately after a fatal officer-involved shooting — the first involving NYPD officers outfitted with body cameras.
Police said the footage would be an “unwarranted invasion” of the dead man’s privacy under state law because it showed him receiving medical treatment. But the video at issue did not reveal any private medical condition, a judge wrote last year. The victim’s family said they fully supported releasing the footage.
“It’s outrageous that the police can shoot somebody . . . and then argue against releasing footage that’s going to show what happened, you know, on the basis of protecting the privacy of that person,” said Marinda van Dalen, an attorney with New York Lawyers for the Public Interest, which fought to release the video.
Sgt. Jessica McRorie, an NYPD spokeswoman, said: “To ensure due process and the protection of the rights of those depicted in the video, the department follows the law.”
In Rochester, city officials said unredacted video of Prude’s detention would run afoul of the Health Insurance Portability and Accountability Act, which protects medical records, citing the medical treatment he received from EMTs. They said they would need a waiver from the family attorney.
The law, known as HIPAA, “has no application” to any incident that occurs in public, said Larry Byrne, who headed the NYPD’s legal bureau from 2014 to 2018. He believes withholding video demanded by the public only fuels simmering tensions and anti-police sentiment, further endangering the lives of the officers on the street.
Byrne said there can be a legitimate reason to deny requests for information if a case is part of an ongoing investigation. Witnesses could be threatened if the wrong information gets out — a particular concern in New York, he said, where many incidents are gang-related.
But some lawyers and advocates argue that officials are abusing exemptions for active criminal investigations to avoid scrutiny. Emails released last week as part of a city investigation into Prude’s death in March suggest that police understood within days that their records-request objections about an “open investigation” were unlikely to hold up in court.
“I can tell you that this will probably be appealed and he will win,” a police lieutenant wrote April 6.
New York law states that police may deny access to documents that, if disclosed, interfere with investigations, deprive someone of their right to a fair trial or cause other repercussions. The state Committee on Open Government has repeatedly warned against wholesale denials of records requests based on ongoing investigations.
A Rochester police captain wrote in an email that because the New York attorney general’s office was investigating Prude’s death, the inquiry by local police “can be interpreted technically as remaining ‘open’ . . . in the highly unlikely event they uncover any additional information that could impact our investigative findings.”
An attorney for the city of Rochester said she was told by a lawyer from Attorney General Letitia James’s office that the state prefers that material not be made public because it can interfere with an investigation. James’s office showed the arrest video to Prude’s family and attorneys over the summer and said it never asked the city to withhold information related to Prude’s death.
James announced Sunday that her office will now release body-camera footage as quickly as possible after it is shown to a victim’s family. The decision had been left to local law enforcement.
In Kentucky, the Louisville Courier-Journal is appealing a judge’s ruling that police do not have to share investigative records in the case of Breonna Taylor, who was killed in her apartment as police executed a warrant. The suit argues that the internal investigation into the shooting is complete and that the files are public by law.
On Wednesday, a grand jury declined to issue charges in Taylor’s death, determining that two officers were justified in shooting into Taylor’s apartment. A third was charged with recklessly firing into a neighboring apartment.
Michael Abate, an attorney for the newspaper, said Wednesday’s decision should bolster the case for releasing the records.
In a news conference Thursday, Louisville Mayor Greg Fischer (D) said the city wants to “get as much of this information out as soon as we can.”
Fischer said the city is working with Kentucky Attorney General Daniel Cameron’s office and the FBI to understand what the city can release so that it “doesn’t interfere with any of the ongoing investigations.”
Change — and resistance
There is now a push to change laws that allow police to keep many records private.
New York Mayor Bill de Blasio (D) announced in June a requirement that police release body-camera footage within 30 days after most situations in which an officer fires a weapon or causes serious injury or death through other uses of force. New York also repealed a law, referred to as 50-a, that shielded the disciplinary and complaint records of law enforcement officers.
Disciplinary records stemming from allegations that were substantiated — including in incidents that were widely reported in the press and discussed publicly by officials — were considered secret under 50-a. Now, every complaint made against an officer is public information.
Advocates of transparency hailed it as a breakthrough. But police unions are pushing back, claiming that most complaints are frivolous and should not be listed on an officer’s permanent public record. Unions representing police officers, firefighters and corrections officers are challenging the repeal in court.
New York’s plans to make disciplinary complaints available in a public online database, “without any review or analysis, would functionally negate the rights of officers to clear their disciplinary records of unfounded and unsubstantiated allegations,” unions argued in a recent court filing.
In Rochester, Shields, the attorney for Prude’s family, said he is struggling to take advantage of the change. He said he is still waiting on personnel files for officers involved in Prude’s arrest, with officials saying they need more time to release them.
In emails provided to The Washington Post, city officials told Shields in July and August, after 50-a was repealed, that they do not need to share unsubstantiated misconduct complaints or those that did not result in discipline. City officials did not respond to questions about the emails.
Holly Bailey in Minneapolis contributed to this report.