While the court decides whether to reconsider its decision to release redacted footage of police shooting Hagen Esty-Lennon to death July 6, lawmakers are also working to shape legislation that will also deal with what the public is entitled to review from police body cameras.
A House subcommittee will met Tuesday to begin work on legislation dealing with police body cameras, but more bills are expected to be submitted during the session.
A judge in Merrimack County Superior Court is also considering requests from the media to release the complete footage of the Esty-Lennon shooting while his family argues they will be harmed and their privacy violated if any portion is released.
Ten days ago, Judge Peter Fauver ordered the release of redacted body camera footage of the incident. Fauver ordered all video and audio from the body camera of an officer who arrived seconds after the shooting and a cruiser cam.
Fauver’s ruling ordered release of the video and audio except for images of the shooting and bloody “up-close images of (Esty-Lennon) lying in his own blood” captured on the body cameras worn by Haverhill Police Officers Officers Ryan Jarvis and Greg Collins.
Rep. John Tholl, R-Whitefield, chairman of the House Criminal Justice and Public Safety Committee, said the public is welcome to attend the subcommittee session, which will begin working with two similar House bills from last session.
Tholl said there are competing rights in the Esty-Lennon case.
“I have mixed feelings,” Tholl said. “I know the public has a right to know, but the family has certain emotional needs, too.”
Tholl, a retired state trooper who works part-time for the Dalton Police Department and Coos County Sheriff’s office, said lawmakers at subcommittee meetings usually hear from experts.
“That doesn’t mean we won’t take questions from the public,” Tholl said.
News outlets have been arguing that all of the video from the Bath shooting should be made public, but Esty-Lennon’s former wife, Esty-Lennon, on behalf of their two minor children argued in court filings that none of it should be released.
Both sides want Fauver to reconsider his ruling that ordered the release of all but the portion of video that shows Esty-Lennon being shot by two Haverhill police officers and what happened minutes after. Authorities said Esty-Lennon was charging police armed with a knife when he was shot.
The New Hampshire Union Leader and WMUR have asked Fauver to reconsider and to release the entire footage.
InDepthNH.org filed a motion today a motion today seeking full release as well.
Rick Gagliuso, InDepthNH.org’s attorney, said it’s not clear whether the court took into account not only the public interest in assessing the performance of the two officers, but its interest in gauging the soundness and completeness of Attorney General Joseph Foster’s investigation that ruled it legally justified.
Gagliuso also noted the court’s finding that the family has a “strong interest in preventing the release of … disturbing death-scene images.”
“InDepthNH.org is concerned the Court has accorded too much weight to the privacy interest of the decedent’s family, and insufficient weight to the public interest in the portions of the video it has ordered redacted.”
Fauver did so, Galiuso said, “in spite of the absence of any showing whatsoever by the estate or Ms. Esty-Lennon.”
Fauver cited the U.S. Supreme Court case National Archives and Records Administration v. Favish that dealt with withholding photographs of Vince Foster’s body after he committed suicide in a park. Foster was President Clinton’s deputy White House counsel.
The court had a “sworn declaration” by Vince Foster’s sister detailing the harm she and her family members had sustained and were likely to sustain if the photos were released, he wrote.
The other case involved a brutal prison murder and autopsy photos of the victim.
Neither Esty-Lennon’s family nor his estate has submitted any evidence of any particular harm that would result if the videotapes were released in their entirety, Gagliuso said.
And Esty-Lennon’s former wife has conceded she “can control what her children see on television or read in the newspaper,” the motion states.
“Any meaningful assessment of their conduct and of the attorney general’s subsequent investigation and report will be impaired if video depicting the officers’ conduct immediately after the shooting is redacted,” Gagliuso wrote.
Fauver ruled the family’s privacy interests outweighed the public interest in disclosure with respect to nearly eight minutes of videotape taken by the body cameras of the two officers.
Fauver ordered redaction of the following footage: “Up-close and graphic images of the officers shooting the decedent, the decedent bleeding profusely while lying on the ground, the officers turning over the decedent to secure him in handcuffs, the officers removing the decedent’s knife from his reach, and medical responders placing the decedent on a stretcher and into an ambulance.”
Fauver explained in his Sept. 4 ruling:
“These portions of the body camera videos depicting close-up images of the decedent lying in his own blood do not advance the public interest in assessing police conduct surrounding the decedent’s death.”
The case is far different than the federal cases cited by Fauver, Gagliuso wrote.
”Under these circumstances the conduct of public officials was not in issue and it was difficult to discern any strong interest in disclosure of the photographs.”
In the Esty-Lennon case, Gagliuso said: “It cannot reasonably be disputed that the conduct of public officials is at the heart of the public’s interest in full disclosure.
“Balanced against vague assertions of possible privacy concerns, the public interest in disclosure must prevail.”
Rep. Neal Kurk, R-Weare, said he will submit legislation later regarding police body cameras to make sure there is a balance between the public’s right to know and citizen privacy rights.
Kurk believes news outlets are fighting for release of the full videos in the Esty-Lennon case to sensationalize them and “sell newspapers.”
Rep. Kyle Tasker, R-Nottingham, who previously drafted House Bill 617 to require state police wear body cams, said it received no support because it would have created an unfunded mandate.
“I think it should all be public,” Tasker said of police body camera footage.
Rep. Tholl said the police use of body cameras raises a host of questions.
“You don’t want to record eight hours of a shift. Do you record interviewing witnesses to a crime? Is that then discoverable?”
One of the previous bills, for instance, would have required that footage is stored for 30 days, he said.
Instead it would have to be saved for at least three years, Tholl said, because that is how long citizens can file civil rights lawsuits.
“It’s a big issue and I am not even sure the technology is ready to go,” Tholl said. While cameras may not be expensive, storing the data is likely to be costly, he said.
Several departments in New Hampshire already use police body cams including Weare, Berlin and Hinsdale, he said.
It’s a matter of balance, he said.
“I think you need to release as much as you can without offending sensibilities,” Tholl said.