THE IMPLICATIONS OF MAJOR NEWS OUTLETS BROADCASTING LAW ENFORCEMENT-CITIZEN ENCOUNTERS: ARE THEY RELIABLE?

• Author: Mattie, Matthew R.

1. Introduction

   From video recordings displaying the death of Eric Garner to the beating of Richard Hubbard Ill, major news outlets have shown videos that have forever changed American policing. (2) Since 1991, the united states has experienced a handful of cases in which black men and women have died at the hands of police officers. (3) Twelve-year old Tamir Rice was shot and killed by Ohio police officers in a public park as he was playing with his BB gun. (4) Eighteen year-old Michael Brown, who was found to be unarmed, was shot and killed by a police officer in Ferguson, Missouri. (5) Forty-three year old Eric Garner, who was found to be unarmed, was wrestled to the ground and killed after a police officer used a banned chokehold technique to restrain him. (6) These few examples, along with many others, have been recorded on witnesses' cell phones and have been broadcasted across major news outlets such as CNN and Fox News. (7) These recordings have led to numerous protests across the country, in which protestors demand for both justice and the reformation of the criminal justice system. (8)

   In response to the public outcry of police violence, law enforcement officials are challenging the extent to which cell phone videos paint a full picture of the circumstances leading up to these deadly encounters. (9) Some law enforcement officials suggest that the media unfairly broadcasts cell phone recordings depicting police encounters by attaching negative headlines to these encounters. (10) Due to the recent media attention, police have been hypersensitive to being recorded by the public during dangerous encounters, and perhaps having the recording be misrepresented by the media, a number of police officers now fear routine encounters with the public. (11) Since there are competing and compelling arguments on both sides, many law enforcement agencies across the country have implemented police body-camera programs in the hopes of not only providing police officers with a safety net during dangerous encounters, but to also prevent police brutality against individuals. (12)

   First, this Note will outline the legislative history of the Freedom of Information Act ("FOIA"), and how it has been amended over the years in order to properly balance the public's interest in obtaining records from Federal agencies versus national security and privacy interests. (13) Second, this Note will discuss the role and history of major news outlets in regards to their coverage of serious crimes. Third, this Note will illustrate how the Fourth Amendment of the United States Constitution has been applied to an individual's encounter with law enforcement. (14) Fourth, this Note will further discuss how advancements in technology have allowed individuals to use their cell phones to record encounters with law enforcement, and how such recordings are gathered by major news outlets and portrayed to the greater community. (15) The facts section of this Note will discuss how law enforcements across the country have received government funding to establish police body-camera programs. (16) Next, the facts section will examine the high-profile cases that led to the movement of law enforcement departments to utilize police body-cameras when conducting their duties in public. (17) The analysis section of this Note will examine how there could be possible civil claims, 42 U.S.C. [section] 1983, that may arise from the use of police body-cameras and public disclosure of these recordings by the media. (18) Additionally, the analysis section will further examine potential criminal violations that may arise from the use of police body-cameras by law enforcement when conducting warrant searches. (19) Finally, this Note will conclude that video recordings broadcasted by major news outlets should not be utilized in 42 U.S.C. [section] 1983 claims unless the footage shows the actual circumstances that preceded the deadly police encounter. (20)

2. History

   1. The Freedom of Information Act

      In 1967, Congress enacted the Freedom of Information Act ("FOIA") (21) in an effort to provide the public with access to records from any Federal agency. (22) The FOIA requires Federal agencies to disclose any information requested by citizens unless it falls under one of the nine exemptions created by the statute. (23) Courts liberally construe the FOIA statute in favor of disclosure of information to the public, while the statute has been construed narrowly in regards to its exemptions. (24) The original enactment of the FOIA was established by President Lyndon Johnson, who attempted to undercut the statute by primarily focusing on exemptions for national security and establishing a narrow interpretation of the statute. (25) Almost ten years after the enactment of FOIA, the statute was amended in the wake of the Watergate scandal, in which the House of Representatives focused on strengthening the administration of the statute rather than substantive changes to the exemptions. (26) The amendment required "public disclosure of agency information, timeframes for agency action on FOIA requests, appeals and litigation, recovery of reasonable attorney fees and costs, annual reporting on administration of the FOIA, and an expanded definition of an agency." (27) The FOIA was further amended in 1976 as part of the Government in the Sunshine Act, and was additionally amended in 1986 through the Anti-Drug Abuse Act. (28) As part of the Government in the Sunshine Act of 1976, any meeting involving a quorum of board or commission members must be placed on the Federal Register within seven days, and members of the public must be able to attend such meeting. (29) The 1986 Anti-Drug Abuse Act amended the FOIA by broadening the exemptions for access to law enforcement records, specifically any information relating to investigations. (30) Additionally, President Ronald Reagan issued an executive order granting Federal agencies discretion to withhold information on the basis of preserving national security. (31)

      Although many of the amendments and executive orders sought to restrict the public's access to government records, many of these tight restrictions were later reversed. (32) In 1995, President Bill clinton set forth criteria that allowed a high number of public records that were more than twenty-five years old and of "permanent historical value" to be declassified. (33) President Clinton then signed into law the Electronic Freedom of Information Act Amendments, (34) which were established recognizing that new technologies, specifically the internet, merited greater transparency in access to classified documents. (35) The Electronic Freedom of Information Act specifically mandated the sharing of Federal agency information through webpages and reading rooms. (36) However, the September 11, 2001 terrorist attacks forced President Bush's administration to restrict public disclosure of government information. (37) Attorney General John Ashcroft introduced memoranda that encouraged the protection of national security, sensitive business information and personal privacy. (38) A major concern for Attorney General John Ashcroft was the high volume of information available to the public, and the increasing reach of the internet to reach individuals far beyond the U.S. domestic control, which was viewed as a major vulnerability in the wake of 9/11. (39)

      As national security progressed in the years following 9/11, President Bush decided to enact into law the OPEN Government Act of 2007. (40) One of the changes established by the OPEN Government Act of 2007 was that it extended prominent services to journalists and bloggers, defining them as members of the news media. (41) President Barack Obama further loosened the restrictions of the FOIA by signing the FOIA Improvement Act, (42) which required that Federal agencies make documents and information available to individuals, journalists and the news media in electronic formats. (43) Today, the FOIA allows any individual to request information from any Federal agency for any reason whatsoever. (44)

   2. News Outlets and Their Role in Broadcasting Police-Citizen Encounters

      The news media's prominent reliance upon pre-trial publicity in regards to law enforcement and citizen encounters has been ssprevalent since the 19th century. (45) It has been argued that the mixture of organizational structures, norms and influences in society has had and continues to have a significant impact on the newsgathering and framing processes that are cultivated by news outlets. (46) A major source of headlines for news outlets has typically been from law enforcement departments and courts, specifically from prosecutors and police officers within the system. (47) When it comes to deciding which crimes to forecast on national television, major news outlets look for incidents that are considered to be dramatic, so that the story catches the attention of views. (48) Research suggests that there is a correlation between the public's fear of crime and the media's portrayal of such crimes. (49)

      Major news outlets have significantly increased the coverage of crimes in their newscasts beginning in the 1990's, in which networks aired an average of 557 crime stories per year. (50) When looking at a more extensive study of the major news outlets from 1997, explicit crime stories received more publicity than public policy stories. (51) Major news outlets prefer broadcasting traumatic and explicit crime stories over other material because news outlets face economic pressures to drive their viewership up on a regular basis. (52) By focusing on sensational crime stories' investigations and trials, major news outlets are given the opportunity to provide prolonged and detailed coverage, which allows outlets to develop suspense and interest in crime cases that are of high interest to viewers. (53) Major news outlets strongly place emphasis on "filmic" crime stories, which...