Part two of a two-part series. Read part one.
Just before 10 p.m. on Saturday, May 23, San Diego police officers went to the East Village apartment of a woman who was throwing bottles into the street.
After trying multiple times to get the woman to come out, they forced their way into the apartment and tried to use a police dog to subdue her, according to the San Diego Police Department report on the incident. The woman attacked the dog with a knife, and so police officers shot her, the report said.
The woman, who police are not naming, survived the shooting.
Under AB 748, a state law that went into effect in July 2019, the department is required to promptly release video of the shooting, usually within 45 days. The department has complied with that requirement for the other seven shootings since last July, sometimes even releasing videos within 72 hours of the shooting. But this video hasn't been released and it's not clear why.
The law allows an exception for departments to not release videos "if disclosure would substantially interfere with an active investigation."
However, in those cases, the department must provide in writing the reason "the specific basis for the agency’s determination that the interest in preventing interference with an active investigation outweighs the public interest in disclosure and provide the estimated date for the disclosure."
The San Diego Police Department hasn't done that, said one public records expert.
In denying requests for the video, it says only that the shooting is under criminal investigation by the San Diego Police Department and the San Diego County District Attorney’s Office and that "a criminal enforcement proceeding has commenced, and the release of evidence prior to trial will potentially interfere with the defendant’s right to a fair trial." It gives no date for when the video might be released.
The law is clear that it's not enough for an incident to just be under investigation — the department has to justify why disclosing the video would interfere with the investigation, said James Chadwick, a First Amendment lawyer for Sheppard Mullin who has represented KPBS in public records cases.
"It's hard for me to understand how disclosure of a video would impair an investigation," Chadwick said. "They should be providing an explanation, what it is about this particular situation, this investigation, that's going to be compromised."
RELATED: Police Are Now Required To Release The Video When An Officer Shoots, But Not All Of It
San Diego Police spokesman Lt. Shawn Takeuchi said the department can't commit to always releasing footage as quickly as 72 hours. And while every shooting is still under investigation, videos from the other seven shootings this year have been released. Takeuchi said this shooting video hasn't been released yet because of a criminal proceeding, but he did not know any more details.
"There is an investigatory reason and I don't know what that reason is, I'm not in the homicide unit, but there's a reason that hasn't been released," he said.
A new reality
There may be a temptation among police departments to quickly release the videos where they look good and the shooting appears justify and attempt to delay release of more problematic videos, but that strategy likely won't work, said Rachel Laing, a former journalist and founder of ThreeSixty Public Strategies, who has provided crisis communication services to cities in the wake of police controversies.
"The problem is in times when it's not so cut and dried and the video doesn't exonerate anyone, there's going to be trouble," she said. "But if you delay releasing the video, people will think you're trying to hide something, so you should still err on the side of releasing it quickly."
Laing added that the Memorial Day killing of George Floyd by Minneapolis police has permanently raised the stakes for law enforcement agencies when it comes to transparency regarding use-of-force incidents.
"I don't think we're ever going back to a time where the public will forget, so it's not like they can ride it out and hope the news cycle moves on," she said. "If they do, it's wishful thinking. After George Floyd, something finally just broke through, it made people rethink giving the benefit of the doubt to police officers.”
That's certainly true for Tasha Williamson, a San Diego community activist.
The San Diego Police Department will "put out the video now very quickly if it's in their favor," she said. "Anything that's not in their favor, then they still need more time."
Williams said she and other activists are planning protests over the May 23 shooting and will continue to demand release of the video.
"Transparency means being honest all the time," she said.
It's possible, but highly unlikely, that the San Diego Police Department is holding back on releasing the video because the officer who shot the woman is the subject of the criminal proceeding. It is more likely that the woman who was shot, or someone else involved, has been charged, Chadwick said.
Most of the other subjects who were shot by police have died, so they wouldn't be prosecuted, he said.
Assemblyman Phil Ting, who wrote the law requiring the videos to be released, said he included the investigation exemption as a compromise, but hopes to refine the law in the future.
"Prior to my law, they could delay it forever," Ting said. "Whenever you start with no law, you want to see how it's working, what are the loopholes, areas of concern, and based on that make changes."
