Judge chastises CMPD for ‘tying the hands of the courts,’ orders release of more video

A Mecklenburg County judge on Tuesday ordered the release of the 11 minute-plus video from the body camera of Wende Kerl, the Charlotte-Mecklenburg police officer who shot and killed Danquirs Franklin.

Superior Court Judge Lisa Bell said she will rule later whether CMPD is in contempt of court for withholding video from the scene when Kerl killed Franklin at a west Charlotte Burger King on March 25.

Under a previous court order, CMPD last week publicly released two minutes and 20 seconds of video captured by Kerl’s camera. But CMPD withheld nearly nine minutes of video from the public, employees of three TV stations who petitioned the court for the footage and the judge who ruled the recording should be released.

Bell appeared to criticize the police department’s decision to provide the judge the shortened clip.

North Carolina law intends to give judges the power to decide when and how police shooting videos should be released, Bell said.

If that process is not followed, she said, “You’re tying the hands of the courts.”

Over objections from the city of Charlotte, Bell ordered the 11-minute video be released at 5 p.m. Wednesday.

Assistant City Attorney Jessica Battle argued that only the first six minutes and 35 seconds of the video should be made public. At that point, Battle said Kerl “begins to make spontaneous utterances” that could impact Kerl’s ability to get an impartial court trial if they are released.

The shooting is still under criminal investigation.

Kerl’s attorney, Jeremy Smith, said in court he wouldn’t object to the full 11-minute video being released publicly. Smith said that what Kerl is heard saying on video after the shooting shows she was concerned for Franklin’s well-being.

“It would actually be more damaging to Officer Kerl’s due process rights to not release,” Smith said.

He said keeping the footage under wraps would give a false impression that Kerl had something to hide.

‘Dozens’ of videos

Bell’s ruling represents another turn in a case that has prompted protests over the killings of African-Americans by police and raised questions about whether CMPD’s handling of body camera footage followed the law.

On Tuesday, CMPD Chief Kerr Putney testified that “dozens” of videos were recorded at the scene.

Charlotte-Mecklenburg police Chief Kerr Putney responds to a question in court on Tuesday. Judge Lisa Bell says she will sign an order for the release of the 11 minute-plus video from the body camera of Charlotte-Mecklenburg police officer Wende Kerl, who shot and killed Danquirs Franklin. Jeff Siner jsiner@charlotteobserver.com

Only footage from Kerl’s body camera has been released.

The Charlotte Observer filed a petition Thursday for more body camera video and other recordings from the scene of the shooting.

Judge Bell did not rule on the Observer’s petition on Tuesday.

Putney said he made the final decision to release two minutes and 20 seconds to the judge after receiving legal advice.

He also testified that he had concerns about showing the video to City Council before it was released to the public. Putney said City Manager Marcus Jones, his boss, ordered the viewing despite questions about its legality. Putney testified that Jones assured him the city attorney believed showing the footage was appropriate.

Judge Bell ruled that the private showing for City Council did not violate the previous court order. Technically, she said, CMPD disclosed the video to City Council members and did not release it to them. That’s because officials were allowed to watch the footage but were not given copies.

Public’s right to know?

The public release of the video on April 15 came after weeks of rumors and speculation about what happened when Kerl shot Franklin.

Activists and CMPD offered differing accounts of the killing.

Employees from three local television stations filed petitions with the courts to have the police video made public.

Mecklenburg County Superior Court Judge Donnie Hoover earlier this month ordered CMPD to release footage. Last week, the department released two minutes and 20 seconds of video captured by Kerl’s camera. Kerl fired shots at the two-minute mark, and as the clip ended, she was leaning down toward Franklin and saying, “I gotta pick up the gun.”

But a legal fight erupted after an Observer report revealed that CMPD showed the longer video to Charlotte City Council members before the shortened version was given to the public.

WBTV reporter Nick Ochsner filed a motion to bring CMPD back into court to explain why the full video was not released, which led to Tuesday’s hearing.

Battle, who represented CMPD, said the department released the shorter video because Ochsner’s original petition asked for footage “in the moments leading up to, during and immediately after the shooting.”

CMPD interpreted that two minutes and 20 seconds captured as enough to satisfy the court order, she said.

“The city of Charlotte acted in good faith,” Battle said.

She said the city was attempting to promote “judicial efficiency” by not handing over video that may not be relevant to a police shooting.

Judge Lisa Bell says she will sign an order for the release of the 11 minute-plus video from the body camera of Charlotte-Mecklenburg police officer Wende Kerl, who shot and killed Danquirs Franklin. Jeff Siner jsiner@charlotteobserver.com

But Judge Bell said she is considering whether to hold CMPD in contempt of court for not releasing more video. Bell said Tuesday afternoon she wanted more time to think about the issue.

Attorney Mike Tadych, who represented WBTV’s Ochsner, argued that CMPD violated the public’s right to know. Only judges can decide what footage from videos can be shown to the public.

“The law does not give police the ability to determine what is relevant,” Tadych said.

A family’s view

Two people who said they were relatives of Franklin attended the hearing.

Willie Feaster, 58, who said he was a cousin of Franklin, criticized Putney during a break in court proceedings.

CMPD’s decision not to share the longer video was a mistake, he said.

“It’s unfair,” Feaster said. “We should see everything.”

Feaster said the release of the video is important because he believes the shooting was unjustified.

“She didn’t give (Franklin) an opportunity to comply” with her orders, Feaster said. “He was not a threat.”


What's the process for getting body-worn camera footage from CMPD?

A 2016 state law prevents police departments from releasing body camera video except through a court process. Anyone can file a $200 petition and pursue the release of video through the courts, and almost every fatal CMPD shooting in the past two years has been the subject of at least one petition for video.

Once a petition is filed, CMPD is supposed to turn over the requested video to the judge so the judge can privately review it prior to a public hearing.

If the hearing is held before the Mecklenburg County District Attorney’s Office has decided whether to charge an officer, an assistant district attorney typically argues against release, saying it could influence a future jury or interfere with the ongoing investigation. The officer’s personal lawyer usually makes a similar argument.

CMPD’s lawyers typically do not object to the release but often argue for minor edits, like blurring the faces of civilians and cutting out the names of people not directly involved in the incident.

The judge can either deny the release or issue an order approving it.

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