January 22, 2021 Feature

Police Reports Shouldn’t Set the News Agenda: A Guide to Avoiding Systemic Racism in Reporting

By Drew Shenkman and Kelli Slade

On the evening of May 25, 2020, George Floyd died in police custody.

The official police report documented the incident:

On Monday, May 25 at 8:02pm, Minneapolis Police responded to a 911 call reporting a forgery in progress at 3759 Chicago Avenue South. Officers arrived and located a suspect in a vehicle. Officers reported that they ordered the suspect out of the vehicle and the suspect physically resisted officers. Officers handcuffed the suspect. The officers restrained the suspect on the ground and an ambulance was called. No weapons were used by anyone involved in this incident. The subject, an adult male believed to be in his 40s was transported to Hennepin County Medical Center where he was pronounced deceased.1

Missing from the official police narrative was the fact that one of the responding Minneapolis police officers knelt on Floyd’s neck for 8 minutes and 46 seconds.2 Also missing was that three other officers stood by as their fellow officer pressed his knee on Floyd’s neck, hearing him say, “I can’t breathe” multiple times, “Mama,” and “please.”3 And missing was that after Floyd had become unresponsive, the kneeling on Floyd’s neck continued for 2 minutes and 53 seconds, even after another officer checked Floyd for a pulse and “couldn’t find one.”4

Without eyewitness cell phone video and robust media coverage,5 the world likely never would have known that a police officer killed George Floyd, let alone how.

Floyd’s death rocked a nation struggling through the worst pandemic in 100 years, bringing a summer of reckoning on race, policing, and social justice unseen in America since the civil rights movement of the 1960s.

America seemed to notice that Black Americans have always been disproportionately victims of police violence: Black men are 2.5 times more likely than white men to be killed by police in America, according to a 2019 study, which also predicted that 1 in 1,000 Black men would be killed by police over their lifetime.6

In Minneapolis, where Black people account for only 19 percent of the population, the New York Times found they accounted for 58 percent of all police “use of force” incidents.7 Protesters filled the streets and social media with calls for justice in policing, equality, and “Black Lives Matter.” Their voices, heard on television and in newspapers, reverberated through the halls of government and permeated corporate America.

For the first time in 60 years, race and policing were at a crossroads throughout all of America.

* * *

Reporting on police reports is a frequent and routine practice in journalism—so much so that a bedrock principle of defamation law is the fair report privilege, which protects the “fair and accurate” reporting of official government documents, including police reports.8 The fair report privilege is an important tool for journalists—and the media lawyers advising them—when reporting on crime and policing.

The privilege takes on even greater importance when reporting on the use of lethal force by law enforcement, which makes the most potentially defamatory of allegations: the killing of another human being.

But what happens when the police report is wrong, inaccurate, or incomplete, leading a journalist to a false narrative of what occurred? Rote reliance on police reports gives police the first opportunity to both shape and define their own violent encounters with the public.

George Floyd’s death in police custody was hardly the first time that law enforcement failed accurately to describe their use of lethal force. Rodney King. Eric Garner. Laquan McDonald. Breonna Taylor. Just to name a few.

If a journalist acts as scrivener by parroting police narratives—as is often the case in shrinking newsrooms and budgets, and a lawyer encourages that practice to invoke legal protections—are we propagating the very systemic racism infecting policing in America? And are we even giving sound legal advice?

This article examines the intersection of race, policing, and the fair report privilege. We explore the privilege and its limitations, as well as examples where police narratives did not align with reality. Because media lawyers are usually steps removed from the actual reporting process, we interviewed a number of seasoned reporters and editors for their thoughts on how to approach police reporting and what media lawyers ought to consider when giving legal advice.

The Fair Report Privilege’s Protection

The fair report privilege protects the repetition of otherwise defamatory content through an exception to the common law rule holding that one who repeats or republishes a defamation uttered by another adopts it as one’s own.9 Borrowing from its English common law heritage, the privilege protects reporting on public events such as trials, government proceedings, and the actions of legislative bodies.10

The American common law tradition added a key protection: the freedom to report on information found in government documents, including police records. Reporting on public documents is an essential tool to avoid the filter of a public performance, as public servants are likely to be more candid when they think they are not being watched.

The fair report privilege also reduces the chilling effect a journalist might feel when hearing controversial information during an official proceeding or discovering sensitive material in a government document. But the privilege grants only conditional immunity from defamation liability, requiring that the journalist’s repetition is both a fair and an accurate report of the government proceeding or record.11

In sum, “the privilege springs from the recognition that in a democratic society, the public has both the right and the need to know what is being done and said in government—even if some of that is defamatory.”12 To that end, all 50 states have either codified into statute or maintain a common law fair report privilege.13 The protection of the privilege ranges from being absolute in some states, to being capable of defeat through a showing of common law malice in others, and actual malice still in others.14 Some have even argued that the First Amendment ought to demand a national actual malice standard to defeat the privilege.15

In some states, the privilege applies only to the most formal of government proceedings and official documents.16 In others, press releases and even informal statements from police officers may carry the privilege.17 But whatever formulation the fair report privilege takes, it has one simple edict: to report on government proceedings and documents fairly and accurately.

Limitations of the Fair Report Privilege

There are times when the fair report privilege falls short in protecting reporting on public records. The privilege wanes when a reporter does not describe a document accurately, such as when reporting is “‘garbled or fragmentary to the point where a false imputation is made about the plaintiff which would not be present had a full and accurate report been made’”18 or summarized such that a jury could “conclude that the summary carried a greater sting and was therefore unfair.”19

Similarly, the privilege might fall away when the reporting “present[s] a one-sided view of the action”20 or paraphrases such that “the element of balance and neutrality is missing.”21 And except for states with an absolute privilege, there remains the possibility that a reporter’s motivations can be examined, even if the report was fair and accurate, through proof of either common law malice or actual malice.22

To be sure, the fair report privilege is an important tool, but as we are about to see, reporting on police records is not without its severe limitations.

What Happens When Police Lie?

The fair report privilege is usually at its zenith when reporting on police records, which are the earliest, uncontested written accounts of an incident. As a society, we are asked to trust the accuracy of those reports because law enforcement is sworn to act fairly and uphold the law.

Yet, police records and narratives, especially those created in the immediate aftermath of law enforcement’s use of deadly force, frequently fail to follow the expectation that they are fair and independent accounts. Indeed, criminology and sociology scholars have long examined the phenomenon of police lying and the negative impact it has on our criminal justice system.23

The scholarship concludes that lying is an expected part of the law enforcement process.24 There are the “excusable lies,” such as those slightly exaggerating situations to establish rapport with a suspect, and the “justifiable lies,” such as undercover and deceptive operations to obtain evidence on the targets of investigations.25 Society puts up with such excusable lies in order to maintain law and order, so the theory goes.

But then there are the “unacceptable lies,” such as those told maliciously to create a false narrative in order to put a suspect behind bars—an ends-justify-the-means removal of a “criminal” from society, often resulting in an officer “testilying” on the stand to put him away.26 Judges frequently given the “wink and nod” to questionable police testimony, giving “an improper (and frankly illegal) presumption in favor of police witness credibility.”27

Then, perhaps, is the most dangerous form of lying, the “code of silence,” where officers fail to identify serious misconduct in the ranks in order to protect other officers, even where it results in harm to a defendant or innocent victim.28 This “thin blue lie” often manifests itself in the worst way when officers are asked to record their actions after using excessive force, for “[a]lthough it is well known that some officers use unnecessary and excessive force, it is unlikely that officers report that level of force on an official form.”29 And “[w]hat distinguishes police officers is their unique power—to use force, to summarily deprive a citizen of freedom, to even use deadly force, if necessary.”30

Sitting atop all of this is the rampant structural racism that exists in American policing. Ample scholarship has laid bare the inherent racial bias in the most common police practices, from pretextual vehicle stops to stop-and-frisk, which are often the genesis of police use-of-force incidents.31

George Floyd Wasn’t the First. Nor the Last.

At this pivotal point in our nation’s history, we must shift our approach to how we encounter police reporting. While a media lawyer rightly views the fair report privilege as inviolable when it comes to police records and defamation lawsuits, we need to stop and think: Are we not furthering the systemic issues of bad police practices, often rooted in racism, by encouraging journalists to rely on police records?

While George Floyd is perhaps the most recent example of a police department influencing the initial narrative through a false narrative in a police report, it was hardly the first. Distorted police narratives often go unchecked unless there is video evidence to the contrary.32

In each of the examples that follows, law enforcement used extreme or deadly force unaccounted for in the initial police documents following the incident. And in almost every instance, the fair report privilege would have protected the fair and accurate reporting of the police accounts, despite the reports themselves being inaccurate. And each lie begs the question: If the inaccurate document had been released by police in the immediate aftermath of the incident, would the reporting on it have been “fair and accurate”?

Rodney King: “The Jackie Robinson of Police Videos”33

One of the most prominent and earliest examples of police report lies contradicted by video is the 1991 beating of Rodney King.34

Police officers initially downplayed the brutal beating of King, an unarmed Black man, during a Los Angeles traffic stop, unaware they were being recorded by a curious onlooker with a new camcorder. The four LAPD officers who delivered fierce kicks and baton beatings to King, who tased him and left him seriously injured and hogtied on the pavement, were surrounded by a dozen or more officers, who merely watched.35 King, who a jury later found possessed no realistic threat to the officers, suffered serious injuries, including skull fractures, a shattered eye socket and cheekbone, a broken leg, a concussion, injuries to both knees, and nerve damage that left his face partially paralyzed.36

When the Los Angeles Times reviewed the initial police documents presented to the grand jury investigating the beating, the newspaper revealed that the officers at the scene falsely claimed King’s injuries appeared to be “light,” that he “suffered only cuts and bruises ‘of a minor nature’” and “contusions and abrasions.”37 The officers had written reports that King “attacked officers,” “continued some resistance,” and “increased (his) resistance,” even though the videotape later showed King to be defenseless.38

Riots engulfed Los Angeles a year later when the four white officers charged in King’s beating were acquitted (two were later convicted in federal court). The commission established to study the beating bluntly stated, “Our Commission owes its existence to the . . . videotape of the Rodney King incident.”39

While the false police reports were not publicly available in the immediate aftermath of the King beating, they demonstrate how easy it is for false police narratives to take hold in use-of-force incidents.

Eric Garner: The Chokehold That Almost Wasn’t

The 2014 death of Eric Garner—a Black man arrested and placed in a chokehold on Staten Island for the misdemeanor offense of selling bootleg cigarettes—demonstrates the problem in two different ways.

First, police reports are not always available for public review in New York State, which meant that the incident was viewed only through the lens of bystander video showing an officer with his arm around Garner’s neck in what appeared to be a prohibited chokehold, while Garner lay face down with dying pleas of “I can’t breathe” heard over and over again.40

Taken alone, the video carried its own potential defamation risk: questioning the officer’s tactics and implying Garner’s death resulted from the chokehold without the protection of a fair report privilege defense. Bystander video without police input poses the opposite problem: Can a journalist know the video shows the complete story?

But a second, and consequential, problem was that incomplete and false information made its way into early official accounts of Garner’s death. For example, the New York Times reported that “the first official police report on his death failed to note the key detail that vaulted the fatal arrest into the national consciousness: that a police officer had wrapped his arm around Mr. Garner’s neck.”41 And in administrative proceedings resulting in the firing of the officer who performed the chokehold, a judge found that his testimony explaining his actions had been “untruthful” and that another officer on the scene incorrectly filled out initial arrest paperwork coding the “Force Use” field as “No” and erroneously cited a felony charge against Garner when it was only a minor misdemeanor.42

The New York Times also noted that the video was cited in the final autopsy report “as one of the factors that led the city medical examiner to conclude that the chokehold . . . caused Mr. Garner’s death” and that “absent the video, many in the Police Department would have gone on believing his death to have been solely caused by his health problems. . . .”43

Like the Rodney King incident, without the bystander video, Eric Garner’s death might have passed by like so many others. Whether it be a failure of New York’s open records law, an “untruthful” responding officer, or misleading paperwork, a faulty police narrative would likely have emerged had the “official” police information been released prior to the videotape.

Laquan McDonald: A Year-Long False Narrative

While the impact of false police narratives in the King and Garner incidents may be hypothetical as to the media’s subsequent reporting, the October 2014 killing of 17-year-old Laquan McDonald is not.

Chicago police officer Jason Van Dyke fired 16 shots at McDonald, including several fired after McDonald had fallen to the ground. Van Dyke, now imprisoned for second-degree murder, claimed McDonald posed a threat to him for holding a knife. But for over a year after the fatal shooting, Chicago’s city government and police department kept the full picture of the killing from public view.44 Only through the public release of graphic dash-cam video over a year later could the public see through all the lies.

As is often the case in police shootings, early media reports relied mainly on police sources, resulting in one-sided local headlines like “Cops: Boy, 17, Fatally Shot by Officer After Refusing to Drop Knife”45 and “Police Shoot, Kill Knife-Wielding Teen on South Side.”46 A Chicago Fraternal Order of Police spokesperson said that McDonald had “lunged” at Van Dyke and that “the teen had a ‘crazed’ look about him as he approached the officers with the knife.”47 And the Chicago Police Department said that McDonald “refused to comply with orders to drop the knife and continued to approach the officers.”48

While some eyewitnesses initially disputed the initial police accounts, they later claimed they were pressured by police into changing their story to match police accounts.49 Only after a freelance journalist’s Freedom of Information Act (FOIA) lawsuit produced the video50—which showed McDonald never moved toward the officers or posed a significant threat, and in fact showed he moved away from Van Dyke—were journalists able to uncover the truth.51

After the video came out, hundreds of documents were released showing that many officers’ recorded accounts differed from the video, including Van Dyke himself, who told a detective investigating the shooting that McDonald “ignored Van Dyke’s verbal direction to drop the knife and continued to advance toward Van Dyke. . . . When McDonald got to within 10 to 15 feet of Officer Van Dyke, McDonald looked toward Van Dyke. McDonald raised the knife across his chest and over his shoulder, pointing the knife at Van Dyke.”52

The false narrative surrounding the McDonald shooting posed significant problems for journalists. The official police stance, protected by the fair report privilege, was directly at odds with the truth, but no one knew it until the video came out over a year later. As the Atlantic noted, “it took . . . 400 days to charge Van Dyke, but a jury took only seven and a half hours to convict him.”53

What Journalists Say: A Practical Approach to Police Reporting

Recognizing that journalists face an enormous challenge covering policing, we interviewed several accomplished reporters and editors in order to give media lawyers a window into the practical side of reporting.

The journalists we spoke with all agreed on one thing: Never rely solely on police records or statements when reporting on incidents involving law enforcement. Throughout their careers, the journalists said that they have witnessed circumstances where the police version of events was inaccurate, including where the police were not forthright or complete in the retelling of events, they had engaged in wrongdoing, litigation was pending, investigations were open and ongoing, or there was inherent police bias. They overwhelmingly believe that it is their ethical and journalistic responsibility to move beyond official documents released by police, such as police reports and press releases, and cannot take these documents at face value.

Given today’s racial climate, the journalists say, it is critical to explore the circumstances surrounding police incidents thoroughly and challenge the accounts generated by police. They uniformly noted that what an official document does not contain may be equally as important as what the document does contain.

The journalists recognized that police accounts are frequently unreliable:

Taken at face value and relying solely on police accounts, you’re sort of saying the police are right. You’re saying you arrived first at the scene and you get to tell the story the way you get to tell the story.

In the mid-2000s, I was a crime reporter dealing with white cops and almost exclusively Black victims and perpetrators. Police reports were inaccurate constantly. If you go into the neighborhoods and you talk to these victims, you can very clearly see the police are . . . approaching a story from their framework where they’re never wrong.

The following interview excerpts and summaries provide the consensus that a journalist’s approach to law enforcement incidents should be re-examined, and several factors should be taken into consideration in such reporting.

Examine Inherent Racial Bias

“Before we even talk about fair reporting, you have to look at our inherent racial bias whenever we step into a story,” one reporter told us.

Reporters must examine what attitudes or stereotypes (both conscious and unconscious) are affecting the individual’s understanding, actions, and decisions:

  • How is law enforcement approaching a community?
  • What is the police perspective?
  • What kind of strain are police officers under given the lack of training that they may have received?

As one reporter noted, while race is important, it is often just one of the factors we should account for:

I think to say George Floyd happened just because of race is too simplistic, just like defunding the police is too simplistic. So, I think it’s got to be percentages. Yes. George Floyd happened in large preponderance because he’s Black. How much did income have to do with it? How much did policing in this particular neighborhood have to do with it? All of it. How about police recruitment? Systemic. You know, racism within that.

The journalists were uniformly aware that Blacks and minorities are often treated differently by police and that, historically, police have tended to be more aggressive, both physically and verbally, in minority communities. They suggested that the over-policing and patrolling of minority communities create a tension when individuals are stopped that police do not often appreciate:

When someone confronts them, there’s gonna be an argument. There is already a conflict, almost culturally. The police may be looking at a situation as a person resisting, when that individual is simply wondering: “Why are you doing this?” This tends to ratchet up the situation, and it usually ends poorly.

The journalists noted that there is a perception that has been reinforced over many years that Black people, especially Black men, are more violent. Consequently, rather than seeing people as citizens to be protected, they say that Black men are only seen as suspects—a problem that is not just the perception of white cops, but Black cops as well.

Often, the journalists noted instances of covering stories where police pit minorities against each other in a white power structure:

If law enforcement is going to defend the rich, White and the powerful, then every person of color who covers law enforcement has to come with a healthy skepticism.

And regarding bias, they noted that it often predates the police academy, relating to an officer’s upbringing, or how they were recruited:

These are people who come out of high school, who go straight into the academy and who may have come from homes with racial bias. In Los Angeles there are huge communities of color where there is recruitment happening . . . individuals with low-income backgrounds, not a lot of emotional and mental support when they were growing up. And then we give them a gun and expect them to be social workers and psychiatrists on the street. It is what we have done to policing with the cutbacks in mental health care and cutbacks in social services.

But above all else, journalists must recognize their own biases when they step foot into a new situation involving police reporting:

I tell them, check your own bias. Pretend you are a Black kid who grew up on 78th and South Edgemont in Chicago. Start there as that kid. That’s how you read a police report, and then you start to understand and read the sentences a little differently, especially if that young reporter is white or privileged. You have to look at it from a different perspective instead of just reading it plainly because everything we write down, including what we know, contains some sort of bias.

Explore Different Versions of the Incident

Even where there is a video record of a police encounter, it is rare for there not to be multiple versions told of the same event. Thus, the journalists we spoke with say that the only way to have a complete and balanced story is to get the perspective of as many individuals and sources who were involved as possible.

Unfortunately, even then, journalists recognize that they can’t be completely certain that the truth is being told by police or by witnesses. This leads to the one question that should always be asked, “How many versions of this event are there?” This leads to another natural series of questions:

  • What are we hearing from police?
  • What are we hearing and seeing from the scene/the streets?
  • What are we hearing from witnesses/neighbors?
  • What are we hearing from the victim’s family?
  • What is on body-cam/social media/surveillance video?
  • What are other media outlets reporting?
  • Are any versions of the events contradictory?
  • What questions are outstanding based on what we are hearing from law enforcement?

But how does a journalist make it happen, and how can a media lawyer assist in that process? One journalist explained the importance of boots on the ground:

I think we need to get people on the ground. I think we sometimes get way too far away from getting people on the ground to interview about what they say happened. I think, when possible, always ask or be looking around at the crime scene to see what kind of video might be available. Who might give you access to video?

Another highlighted the importance of tracking down video evidence:

I’m always looking for the video. There is security video on almost every house. Now there’s Nest [cameras] everywhere. Sometimes we just need to widen our circle. In George Floyd, not only did we have cell phone video, we had the liquor store video. Then there was another camera on the other side of the street. So, I think just looking for all the cameras is helpful.

And another stated:

If it weren’t for video, there would be a lot of the stuff we would never know about.

But it’s more than just talking to witnesses and tracking down video, they say; a journalist needs to actively listen to the family and friends of the victims:

One of the first stories I covered involved an officer who chased down a guy in his cruiser and then drove the cruiser through the fence because he didn’t want to get out of the car to chase him, and he killed him. And this was before Twitter or any of that. But I can recall, even in that situation, that the police were not being very forthright with the information and the details the family and friends were starting to gather and I was in there. I was in the house with them and the photographer, and they were basically demanding justice, and they did not get it.

As a cops’ reporter I always tried to make sure that I got the other side of the story. . . . I always thought about sitting in that living room with that mother and her crying. And oftentimes people don’t actually spend enough time trying to get to the other side, especially if it was a Black guy who did something that was criminal. There isn’t a whole lot of empathy there. In most of my experiences and in other newsrooms, I found myself trying to make sure that I completely reported out stories because otherwise the family could get the short shrift. That’s something that really stuck with me. And even to this day I try to remember that everybody has a mother.

Look Out for Victim Shaming

The journalists we spoke to recognized that victims of police violence are occasionally engaged in criminal activities—sometimes petty and sometimes not—but they note that the punishment comes nowhere near fitting the alleged crime.

Police are often eager to share the criminal histories of police brutality victims with the media. This can often paint the picture of this person being somehow worthy of the misfortune that has befallen him; as one journalist told us, “People will say, ‘look how bad he was and his prior crimes.’ The story of this individual often shifts from victim to perpetrator.” It is important to examine such issues and not necessarily take them at face value.

The journalists we talked to noted that individuals may live in a community where they are more likely to have a disproportionate number of encounters with police. They may have been pulled over and stopped and arrested by law enforcement on multiple occasions—but not every charge results in a conviction.

They recognize the ongoing struggle to determine the relevance of the information, and whether it should be reported. Sometimes, it is simply an irrelevant and naked attempt to shame the victim, but other times, it is necessary to know why this person reacted the way he did with the police:

In the George Floyd case, Floyd says, “Officer, I’ve been shot before just like this. I’ve been shot before.” And he’s terrified and he’s crying. And, again, that could inform how he’s reacting to police. He has a criminal record. He’s been in contact with the police. He says he’s been shot before. I think it’s all about how we use that information in context with what’s happened to someone, making it clear that one does not equal the other.

Body-camera transcripts later showed that Floyd expressed his fear in dealing with police, claiming to officers that he had been shot by another officer in a previous incident.54

The journalists we spoke with repeatedly emphasized the importance of context when dealing with prior offenses:

If you are someone who is wanted for murder or . . . some serious crime and the police are about to take you into custody, and you’re unarmed and something terrible happens while in custody and you wind up dead, it goes to that person’s frame of mind of why they may want to flee, why they may want to not allow the police to take them into custody. That is 100 percent relevant.

But as one journalist put it bluntly, “Shooting the person is never justifiable just because the individual had a criminal record.”

Report What You Know and Be Clear About What You Don’t

Stories typically evolve with various pieces of reporting coming together over time. But it is important to note that reporters themselves face pressures to report as quickly as possible. Breaking-news demands and limited resources often lead to a rush to publish that perpetuates the police-first narrative.

Recognizing those limitations, the journalists stressed the importance of being clear about what they know, and what they do not know, at any given time. They suggest that reporters should state with clarity:

  • This is the police version of events.
  • This is what we know now based on the preliminary investigation.
  • We haven’t talked to the victim’s family or the suspect’s family or lawyer.
  • We don’t know the full picture yet because we don’t have all the information.
  • We can expect that this may change.

Being transparent with the reader or audience is paramount:

You have to give some caveats. Otherwise, you are reporting the events as fact, just exactly how police see it or even just based on what bit of video you have. And I think probably the key is to be really clear and honest about how little you know. This is one of the ways that we can save ourselves from being wrong.

Examine Disciplinary Records of Police

The journalists pointed out that some police officers make a high volume of arrests or are on teams in neighborhoods where they handle crime daily and in large volume. The journalists collectively highlighted the importance of looking into the police department’s history:

I worked in Oakland, where the police have been under a federal mandate for years, and still are, for misconduct, for planting evidence, for all sorts of things. That was a very difficult relationship because you need to be able to report on police as well. If we don’t, I often feel that we never really get to the bottom of what may have happened.

They noted that these officers and departments often have multiple complaints against them, and reporters should review discipline history. Previous police conduct can be indicative of a department or officer’s behavior in another situation. That said, police are quick to remind reporters of the importance of recognizing that not all officer complaints are substantiated.

But journalists agree that they should be just as judicious in disclosing negative information about police unrelated to the incident in question, just as they do with the criminal history of suspects.

Police Release of Information

Every department has a different way of releasing information. Many departments fail to provide complete and timely information to the media or to provide information at all. For example, in press conferences or press releases, the information provided by law enforcement is minimal:

The press release would just say, victim shot. And that’s not really enough for me to build a story around. So, I had to figure out how to fill in the rest of those blanks. A lot of times in the county in which I worked, they would file a more detailed report for jail processing. So I got into the habit of waiting for that court file because I knew that those details were in there.

Journalists across the country struggled for the consistent release of police body-cam video, often impeded by an ongoing investigation, and often released only through public records litigation. But the journalists agree, whatever the answer is, you should report on it:

When we are going to write a story, we ask police for the dash-cam video or the body-cam video, and oftentimes they refuse to release it and tell us to FOIA it. I think we need to include that information in our stories and call them out in our writing and on air about the things that they’re skirting their responsibility on or not giving us access to.

Yet, even where body-cam footage is released, it is often an edited, narrated, or abridged version. Journalists and their lawyers must press for release of the raw footage and be wary of relying on the police narrative for what they can observe on their own.

Of course, one of the constant challenges the journalists face is the silence they encounter from police after officer-involved shootings:

The first question you’d always want to ask: Is it justified? Was there a gun recovered?

You knew immediately when people were not being straight with you, when they were not giving you answers, that something was up.

I always found it suspicious when the police did not give answers right away.

Journalists recognize that police are often not forthcoming because they are investigating the situation or, perhaps more cynically, are concerned about the possibility of civil lawsuits or criminal charges being brought against their officers and departments.

* * *

Shortly after midnight on March 13, 2020, Breonna Taylor, a 26-year-old Black emergency room technician, was killed in her home by Louisville police serving a “no-knock” search warrant in a narcotics investigation.55 Officers used a battering ram to break into Taylor’s apartment, leading to a chain of events that left Taylor dead in her own apartment.

The fatal police shooting led to months of protests over the controversial “no-knock” tactic, calls for the officers to be fired and arrested, and a public demand to know exactly what happened in Taylor’s apartment that night.

But without videotape or police body cams of the incident, and with Louisville police keeping much from the public due to an unending ongoing investigation, some of the most basic facts remain muddled, including many false rumors, such as that police were at the wrong apartment (false), that they didn’t knock (false), that Taylor was shot in her bed or while she was asleep (false), or that she was living with a drug dealer (false).56

Three months after Taylor was shot, Louisville police finally released the incident report from that night57—except that it was almost entirely blank, save for some of the most basic information already known to the public, such as Taylor’s name and age (but not her address or date of birth).58

The incident report, filled out the same day as the shooting, lists the then deceased Taylor’s injuries as “none” and checked a “no” box under “forced entry” even though officers used a battering ram to break down the door.59

The “narrative” section, where police are expected to record their most immediate recollection of events, simply states “PIU Investigation,” referring to the public integrity unit that was called in to examine the use of force.60

Much about Taylor’s death still remains shrouded in secrecy and outright false information, but one thing is clear, on September 15, 2020, Louisville police made a record-breaking $12 million settlement with Taylor’s family without admitting wrongdoing, one of the largest payments ever made in the United States to a Black victim of a police shooting.61

Endnotes

1. Minneapolis Police Department, General Offense Public Information Report, GO# MP 2020-140629 (Counterfeiting Money), http://www2.minneapolismn.gov/www/groups/public/@mpd/documents/webcontent/wcmsp-224726.pdf.

2. Complaint, State v. Chauvin, https://www.cnn.com/2020/05/29/us/derek-chauvin-criminal-complaint-trnd/index.html.

3. Id.

4. Id.

5. An eyewitness to the incident first posted some of her video on social media.

6. Frank Edwards, Hedwig Lee & Michael Esposito, Risk of Being Killed by Police Use of Force in the United States by Age, Race–Ethnicity, and Sex, 116 Proc. of the Nat’l Acad. of Sci. 16793, 16795–96 (Aug. 20, 2019), https://www.pnas.org/content/pnas/116/34/16793.full.pdf. See also Joseph Wertz et al., A Typology of Civilians Shot and Killed by US Police: A Latent Class Analysis of Firearm Legal Intervention Homicide in the 2014–2015 National Violent Death Reporting System, 97 J. Urban Health 317, 326 (2020), https://doi.org/10.1007/s11524-020-00430-0 (finding that “black, non-Hispanic people are roughly twice as likely to be victims of [police deadly force] compared with their representation in the general US population”).

7. Richard A. Oppel Jr. & Lazaro Gamio, Minneapolis Police Use Force Against Black People at 7 Times the Rate of Whites, N.Y. Times (June 3, 2020), https://www.nytimes.com/interactive/2020/06/03/us/minneapolis-police-use-of-force.html.

8. Restatement (Second) of Torts § 611.

9. The generally accepted formulation from the Second Restatement protects publication of defamatory matter “in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern . . . if the report is accurate and complete or a fair abridgment of the occurrence reported.” Id.

10. The fair report privilege in America comes from English common law of the late 1700s, where Parliament had long sought to control negative discussion about its proceedings, deeming it seditious libel. See Wright v. Grove Sun Newspaper Co. Inc., 873 P.2d 983, 986 at n.9 (Okla. 1994). But the burgeoning English press and increased literacy among the British people made it increasingly difficult to punish such speech. Id. In response, the House of Commons confined itself in 1771 to punishing only misrepresentations of its proceedings. If the English press was going to report, it had better do so accurately. Id. But by 1881, the common law rule had become so entrenched that Parliament enacted legislation formalizing a qualified privilege protecting newspaper reports on meetings “lawfully convened for a lawful purpose and open to the public, and if such report was fair and accurate, and published without malice, and if the publication of the matter complained of was for the public benefit.” Id.; The Newspaper Libel and Registration Act, 1881, 44 & 45 Vict., c. 60, § 2 (Eng.), https://www.legislation.gov.uk/ukpga/Vict/44-45/60/section/2/enacted. See also Kathryn Dix Sowle, Defamation and the First Amendment: The Case for a Constitutional Privilege of Fair Report, 54 N.Y.U. L. Rev. 469, 478 & n.40 (1979) (quoting Curry v. Walter, 126 Eng. Rep. 1046, 1046 (1796)).

11. See Restatement (Second) of Torts § 611 cmt. a.

12. Dameron v. Wash. Mag., 779 F.2d 736, 739 (D.C. Cir. 1985).

13. See Media Law Res. Ctr., Fair Report Privilege: State by State Guide (2008), https://www.medialaw.org/images/stories/Article__Reports/Committee_Reports/2008/Fair_Report_Privilege-_State_by_State_Guide.pdf.

14. See id. See also Paul R. McAdoo & Leita Walker, Minnesota and Tennessee Tackle the Fair Report Privilege, 35 Commc’ns Law., no. 2, Winter 2020, at 6, https://www.americanbar.org/content/dam/aba/publications/communications_lawyer/winter2020/cl_35_2.pdf.

15. See Susan Seager, Forget Conditional State Fair Report Privileges; the Supreme Court Created an Absolute Fair Report Privilege in Cox Broadcasting Corp. v. Cohn Based on the First Amendment over 40 Years Ago, 32 Commc’ns Law., no. 2, Summer 2016, at 1, https://www.americanbar.org/content/dam/aba/publications/communications_lawyer/summer2016/cl_v032n02_spring2016_web.pdf.

16. See Media Law Res. Ctr., supra note 13.

17. See id. See also McAdoo & Walker, supra note 14, at 8 (discussing Minnesota Supreme Court decision finding that police press conferences fell within the fair report privilege).

18. Dameron v. Wash. Mag., 779 F.2d 736, 739 (D.C. Cir. 1985).

19. Brown & Williamson Tobacco Corp. v. Jacobson, 713 F.2d 262, 271–72 (7th Cir. 1983).

20. Lubin v. Kunin, 17 P.3d 422, 427 (Nev. 2001).

21. Street v. Nat’l Broad. Co., 645 F.2d 1227, 1233 (6th Cir. 1981).

22. See Media Law Res. Ctr., supra note 13.

23. See, e.g., David N. Dorfman, Proving the Lie: Litigating Police Credibility, 26 Am. J. Crim. L. 455 (1999); Geoffrey P. Alpert & Jeffrey J. Noble, Lies, True Lies, and Conscious Deception: Police Officers and the Truth, 12 Police Q. 237 (June 2009).

24. Alpert & Noble, supra note 23, at 4–5.

25. Id. at 5–6.

26. Id. at 7–8.

27. Dorfman, supra note 23, at 465.

28. Id.

29. Alpert & Noble, supra note 23, at 4 (citing Geoffrey P. Alpert & Roger G. Dunham, Understanding Police Use of Force: Officers, Suspects, and Reciprocity (2004)).

30. Dorfman, supra note 23, at 462.

31. See, e.g., Jonathan Blanks, Thin Blue Lies: How Pretextual Stops Undermine Police Legitimacy, 66 Case W. Res. L. Rev. 931 (2016); Michael R. Smith & Geoffrey P. Alpert, Explaining Police Bias: A Theory of Social Conditioning and Illusory Correlation, 34 Crim. Just. & Behav. 1262, 1263 (2007) (concluding that, apart from outright “racial animus,” “it is far more likely that they possess unconscious biases toward minority citizens”).

32. See Harmeet Kaur, Videos Often Contradict What Police Say in Reports. Here’s Why Some Officers Continue to Lie, CNN (June 6, 2020), https://www.cnn.com/2020/06/06/us/police-reports-lying-videos-misconduct-trnd/index.html.

33. Quote by Rev. Al Sharpton in Azi Paybarah, He Videotaped the Rodney King Beating. Now, He Is Auctioning the Camera, N.Y. Times (July 29, 2020), https://www.nytimes.com/2020/07/29/us/rodney-king-video-camera-auction.html.

34. See Paul Hoffman, The Feds, Lies, and Videotape: The Need for an Effective Federal Role in Controlling Police Abuse in Urban America, 66 S. Cal. L. Rev. 1453, 1455 (1993).

35. See id. at 1461.

36. Richard W. Stevenson, Los Angeles Police Chief Orders Training Review, N.Y. Times, Mar. 21, 1991, at B8.

37. Richard A. Serrano, Police Documents Disclose Beating Was Downplayed, L.A. Times, Mar. 20, 1991.

38. Id.

39. Hoffman, supra note 34, at 1458, n.11 (citing the Christopher Commission Report).

40. See Al Baker, J. David Goodman & Benjamin Mueller, Beyond the Chokehold: The Path to Eric Garner’s Death, N.Y. Times (June 13, 2015), https://www.nytimes.com/2015/06/14/nyregion/eric-garner-police-chokehold-staten-island.html.

41. Id.

42. In re Charges & Specifications Against Police Officer Daniel Pantaleo, Report & Recommendation on Termination, Case No. 2018-19274 (NYPD Proceeding), https://int.nyt.com/data/documenthelper/1645-read-the-judges-opinion/1ab51bece4671aa10d11/optimized/full.pdf#page=1 (Deputy Comm’r Rosemarie Maldonado); see also Michael R. Sisak, NYPD Officer Says He Inflated Charge Against Eric Garner, Associated Press (May 21, 2019), https://apnews.com/ce589240fb884eceab7eaba2bfdff9e2.

43. Baker, Goodman & Mueller, supra note 40.

44. Nausheen Husain, Laquan McDonald Timeline: The Shooting, the Video, the Verdict and the Sentencing, Chi. Trib. (Jan. 18, 2019), https://www.chicagotribune.com/news/laquan-mcdonald/ct-graphics-laquan-mcdonald-officers-fired-timeline-htmlstory.html.

45. Quinn Ford, Cops: Boy, 17, Fatally Shot by Officer After Refusing to Drop Knife, Chi. Trib. (Oct. 21, 2014), https://www.chicagotribune.com/news/breaking/chi-chicago-shootings-violence-20141021-story.html.

46. Marisa Bailey, Police Shoot, Kill Knife-Wielding Teen on South Side, CBS Chi. (Oct. 21, 2014), https://chicago.cbslocal.com/2014/10/21/police-shoot-kill-knife-wielding-teen-on-south-side.

47. Mark Berman, Why Did Authorities Say Laquan McDonald Lunged at Chicago Police Officers?, Wash. Post (Nov. 25, 2015), https://www.washingtonpost.com/news/post-nation/wp/2015/11/25/why-did-authorities-say-laquan-mcdonald-lunged-at-chicago-police-officers.

48. Id.

49. Wayne Drash, Attorneys: Chicago Cops Falsified Witnesses’ Accounts, Threatened Them, CNN (Jan. 9, 2016), https://www.cnn.com/2016/01/08/us/laquan-mcdonald-witness-cover-up-allegations/index.html.

50. See Gregory Naron & Natalie Spears, Transparency and Access: Postcards from Chicago, 35 Commc’ns Law., no. 1, Fall 2019, at 1, https://www.americanbar.org/content/dam/aba/publications/communications_lawyer/fall2019/cl_35_n1.pdf.

51. Tanveer Ali, Jon Seidel & Andy Grimm, A Timeline of Events Since the Laquan McDonald Shooting, Chi. Sun Times, https://graphics.suntimes.com/laquan-mcdonald-jason-van-dyke-shooting-trial/timeline.

52. Id.

53. Nicole Gonzalez Van Cleve, The Chicago Culture That Created Jason Van Dyke, The Atlantic (Oct. 9, 2018), https://www.theatlantic.com/ideas/archive/2018/10/laquan-mcdonalds-death-almost-didnt-come-light/572476.

54. Holly Bailey, George Floyd Warned Police He Thought He Would Die Because He Couldn’t Breathe, According to Body Camera Transcripts, Wash. Post (July 8, 2020), https://www.washingtonpost.com/national/george-floyd-death-transcripts/2020/07/08/a7050efe-c15c-11ea-b178-bb7b05b94af1_story.html.

55. See Scott Glover, Collette Richards, Curt Devine & Drew Griffin, A Key Miscalculation by Officers Contributed to the Tragic Death of Breonna Taylor, CNN (July 23, 2020), https://www.cnn.com/2020/07/23/us/breonna-taylor-police-shooting-invs/index.html. The Louisville Police Department had been investigating Jamarcus Glover for selling drugs at a location far from Taylor’s home, a man whom Taylor had dated on and off but with whom she had cut ties weeks before. The no-knock warrant had been issued by a judge under the premise that Glover had previously used Taylor’s address to receive packages. Taylor was sleeping in her bed with her current boyfriend, Kenneth Walker, who says he woke to loud knocks on the door, got dressed, and grabbed a gun, fearing it might be Glover. Taylor and her boyfriend moved toward the door, and Walker let off one shot. Three officers then entered, killing Taylor, who was unarmed.

56. Tessa Duvall, Fact Check: Debunking 8 Widely Shared Rumors in the Breonna Taylor Police Shooting, Louisville Courier J. (June 16, 2020), https://www.courier-journal.com/story/news/crime/2020/06/16/breonna-taylor-fact-check-7-rumors-wrong/5326938002.

57. Tessa Duvall, Louisville Police Release the Breonna Taylor Incident Report. It’s Virtually Blank, Louisville Courier J. (June 11, 2020), https://www.courier-journal.com/story/news/crime/2020/06/10/breonna-taylor-shooting-louisville-police-release-incident-report/5332915002.

58. Id.

59. Id.

60. Id.

61. Andrew Wolfson, Breonna Taylor Settlement One of Largest Ever in U.S. for Black Victim of Police Shooting, Louisville Courier J. (Sept. 15, 2020), https://www.courier-journal.com/story/news/local/breonna-taylor/2020/09/15/breonna-taylor-settlement-may-largest-ever-black-victim-police-shooting/5804320002.

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By Drew Shenkman and Kelli Slade

Drew Shenkman and Kelli Slade are each Assistant General Counsel with CNN in Atlanta, Georgia. The authors would like to thank Daniel Kozuh for his research assistance, as well as CNN journalists Sara Sidner, Kyung Lah, Ed Lavandera, DeLano Massey, Pervaiz Shallwani, and Shimon Prokupecz for their collective wisdom and insights. Additional thanks to S. Mitra Kalita for her inspiration to explore this topic.