The two killings of people stopped by police in St. Paul and Baton Rouge and then yesterday’s killing of five police officers and wounding six more in Dallas are examples of horrifying events that took place just this week around the country. One lesson from all three incidents is that videos of what happened can be powerful, persuasive evidence of what really happened. Against this background, the Appellate Division of the New Jersey Superior Court issued an opinion just eight days ago holding that police dash cam videos are discoverable.
What I call dash cam videos are called mobile video recorders (MVRs) in New Jersey. A Tuckerton police officer was chasing a car. The car headed towards Barnegat Township, where two Barnegat Township police cars joined the chase. The MVRs in the Barnegat Township police cars recorded the chase and the subsequent stop of the fleeing car. The MVRs also caught the actions of the Tuckerton police officer and his dog during the arrest. The details of what the Tuckerton officer and his dog did are not described in the opinion, but the officer was subsequently charged with second degree official misconduct, third degree aggravated assault, and other offenses arising from his use of the dog.
A request was made for the videos from the MVRs. This was opposed by various prosecutors’ offices and an association of prosecutors. The trial judge ordered the videos produced. On appeal, the prosecutors’ groups raised nine arguments against releasing the MVRs. A split panel of the Appellate Division affirmed the order releasing the MVRs in Paff v. Ocean County Prosecutor’s Office, 2016 N.J. Super. LEXIS 92 (App. Div, June 30, 2016). The two Judges in the majority held that the MVRs were discoverable under the Open Public Records Act (OPRA). OPRA has many exceptions to the types of records that must be produced. The majority held that none of the following barred release of the MVRs: the criminal investigatory records exception, the investigation in progress exception, the executive order exemption, the unfiled discovery exception or the privacy interest exception. The dissenting Judge would hold that the MVRs fell under the criminal investigatory records exception.
Paff will not be the last word on this issue. In another case the New Jersey Supreme Court is considering whether MVRs are discoverable. Given the dissent in Paff, this case is likely headed to the New Jersey Supreme Court also.
The lesson for litigants is that cameras may be anywhere and everywhere. A video of an incident is evidence that is hard to refute. Not only police stops, but slip and falls in supermarkets or fights in bars may be recorded on surveillance video. One of the first things that any litigant should do is have their attorney look for and request preservation of videos. Locks Law Firm has experience in obtaining and preserving videos, and we stand ready to help you.
