It’s been four months since the fatal shooting of Sylville Smith by Milwaukee police officer Dominique Heaggan-Brown in the Sherman Park neighborhood in August.
And despite calls for their release, videos recording the incident still haven’t been released to the public, either.
But could they be released now?
Withheld During Investigation and Review
Technically, the policy outlining the release of officer-involved death videos falls under the state law that requires an outside law enforcement agency to investigate these shootings.
The law, which went into effect just six days before a Milwaukee Police Department officer fatally shot Dontre Hamilton in Red Arrow Park on April 30, 2014, doesn’t explicitly state when incident videos can be released.
Rather, it states that investigators must provide a complete report to the district attorney, who will then determine whether the officer will be charged. If the DA decides not to charge the officer, the investigators “shall release the report.”
MaryNell Regan, executive director of the City of Milwaukee Fire and Police Commission, which sets policies and procedures for the MPD, said the decision to release video “is a discretionary decision based on state law.”
“The state law gives the jurisdiction to the outside investigator, who determines what to do with the video,” Regan said.
When the Smith investigation was led by the state Department of Justice, Attorney General Brad Schimel said he would not release body-worn camera footage and a dash-camera recording from the shooting. The investigation is complete and the materials were sent to DA Chisholm in mid-September. Chisholm now has jurisdiction of the investigative materials, including video and audio recordings, and has said he wouldn’t release the video during his review.
Chisholm’s office didn’t make him available to comment for this article.
Once Chisholm makes a decision in the Smith shooting, the video can be released.
“The Milwaukee Police Department will release the Sylville Smith video at the appropriate time after consulting with the District Attorney and the Department of Justice, Division of Criminal Investigation,” emailed MPD Sgt. Timothy Gauerke, the department’s spokesman.
In October, MPD Chief Ed Flynn fired Heaggan-Brown and Chisholm charged him with three felonies and two misdemeanors in a sexual assault case not related to the Smith shooting.
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Calls for Release
Although the attorney general and the district attorney have said they won’t release the videos during the investigation and review, either one of them, apparently, has the power to do so. In fact, other police departments around the country have released officer-involved shooting videos quickly in an effort to be transparent.
On Oct. 28, nine members of the Milwaukee Common Council sent a letter to Chisholm requesting him to release the Smith videos as soon as possible, saying there was “no valid reason” for withholding them.
“It is our firm belief that releasing the video footage as soon as possible will help strengthen public trust and provide a measure of transparency for citizens,” they wrote. “We also hope the release of the footage can mark a starting point for greater healing in our city, and a path to justice for everyone involved in the case.”
Regan, however, questioned why the footage should be released quickly.
“If you think about good investigative techniques, why would you release pieces of evidence about something you’re investigating?” Regan said.
Civil rights attorney Jonathan Safran said videos of officer-involved shootings should be released quickly, as long as the investigation is complete and the officer and his or her family are protected from potential retaliation. He noted that, with a few exceptions, the Cincinnati Police Department, which has become a national model for good policing, releases videos within 24 hours of an incident, even if the footage is unclear or incomplete.
“I am a firm believer in transparency and I say that generally videos should be released as soon as possible,” Safran told the Shepherd.
Safran represents the family of Jay Anderson Jr., who was fatally shot by a Wauwatosa police officer. Last week, Chisholm decided not to charge Officer Joseph Mensah, and dash-camera footage of the shooting was released publicly. The officer was not wearing a body camera and there is no audio. While the footage doesn’t answer all questions about the shooting, it does provide some information about the June 23 incident in Madison Park, Safran said.
Safran is also representing Manuel Burnley, who was shot in the back in March by a Brown Deer police officer and survived but was seriously injured. Chisholm charged the officer, Devon Kraemer, with one felony in October. Video was captured by the Milwaukee County Transit System but hasn’t been released.
Safran said that even though the case could go to trial, releasing the video wouldn’t taint a potential jury.
“I still think it should be released,” Safran said.
He said he’d like to see state law address the release of video evidence in officer-involved shootings so that jurisdictions aren’t following different procedures.
“I think once you get into each jurisdiction making a different determination it becomes that much more confusing, becomes that much more of a problem, and one has to question each department that much more,” Safran said.
He said the Milwaukee Fire and Police Commission could write a policy requiring Chief Flynn to release footage in a more timely manner.
