CHARLOTTE, NC (WBTV) - A judge has ordered the Charlotte-Mecklenburg Police Department to appear in court and explain why the full body camera video depicting the events before, during and after the shooting of Danquirs Franklin was neither provided to a judge to review or released publicly.
The order was entered by Superior Court Judge Forrest Bridges late Thursday morning upon a motion filed by WBTV’s Chief Investigative Reporter Nick Ochsner.
Ochsner first petitioned a judge for release of the video from Franklin’s shooting on March 25, the day it happened.
Franklin was shot in the parking lot of a Burger King on Beatties Ford Road after officers responded to calls of a man acting erratically with a gun.
A hearing on whether the video should be released was held on April 11 before Judge Donnie Hoover, who ordered the video be released.
Specifically, Hoover ordered the public release of “custodial law enforcement agency recording related to an officer-involved shooting under CMPD complaint number 20190325-0901-02.”
But CMPD only released the first 2:20 of body camera video worn by Officer Wende Kerl, who fired the shots that killed Franklin.
In an email from Charlotte City Attorney Patrick Baker to council members, Baker said he was told by CMPD “any remaining portions of the video outside of the 2 minutes, 20 second video were not reviewed nor released by the Judge."
The email also notes the Judge “received the only recording depicting the shooting.”
On Thursday, Ochsner filed a motion to show cause. The motion alleges CMPD violated two court orders related to the petition to release video from the shooting; specifically, the motion contends, CMPD did not transmit the full body camera video as ordered by a judge on March 26 and did not release the full video as ordered on April 11.
As a result of Ochsner’s motion, a judge signed an order on Thursday requiring CMPD to appear in Superior Court and explain why they should not be held in contempt of court for violating the orders.
A hearing had been set for Tuesday, April 23 at 11 a.m.
WBTV began questioning CMPD’s decision to only release a limited portion of the video minutes after the department provided a copy of Kerl’s body camera recording to Ochsner.
A copy of an email attached to Ochsner’s motion shows he first approached CMPD attorney Jessica Battle about the limited amount of video publicly released on Monday. The same email shows Ochsner then sent a draft copy of his motion seeking additional video to Battle on Tuesday afternoon.
Rob Tufano, a CMPD spokesman, responded to Ochsner on Wednesday saying he should file his motion and the department would respond appropriately.
CMPD has said there is no other video of the incident but has refused to explain why there is not body camera video from the other officer on scene.
“Moving forward, CMPD will transmit all relevant body-worn camera video of the petitioned incident to the presiding superior court judge, along with appropriate redaction recommendations,” said Baker in an email to council members on Thursday.
Early Thursday morning, the Charlotte Observer reported that the full video from Kerl’s body camera runs more than 11 minutes.
According to the Observer, members of the Charlotte City Council were shown the full video from Kerl’s body camera.
Additional sources have confirmed the Observer’s reporting to WBTV that council members were shown the full video.
Councilwoman Dimple Ajmera says council members were able to see 11 minutes of the video. She was unaware that the public was only getting 2:20 of edited video from Officer Wende Kerl.
“Public trust and transparency is so critical and in order for us to reach full potential we have to be fully transparent,” Ajmera said. “We owe our residents the full video that we as a council had an opportunity to view.”
City staff has refused WBTV’s request for an on-camera interview and, so far, has not released a statement answering questions.
There is no provision in the North Carolina General Statute governing body camera footage that allows the police chief to release video to members of the city council without an order from a judge.
Staff has, so far, refused to answer when council was shown the video or who made the decision to show the video.
Baker told the Observer that city officials will conduct a review to determine why the full video was not released.
“I’m not sure why I’m being shown something that the general public is not going to see,” Baker told the Observer. “I mean, this is the last thing we wanted. City Council has been very clear that they want to be transparent. It’s critical we get this right.”
Ochsner is petitioning a judge for CMPD to release the entirety of the video.
Following the filing of Ochsner’s motion on Thursday, Tufano sent a bullet list of points as to why the department did not transmit the full video from Kerl’s body camera.
In summary, Tufano’s list claimed the petition filed by Ochsner and a second petition filed by a second Charlotte TV reporter did not seek the full video.
“As per, statute 132-1.4A, the CMPD transmitted the relevant portion of video recording to the courts, based on the petitioners’ requests,” Tufano’s list stated.
But the list also acknowledged CMPD will change its policy for producing body camera video to a judge for in-camera review, as required by statute, in the future.
“Moving forward, the CMPD will transmit all relevant body-worn camera video of the petitioned incident to the presiding Superior Court judge along with appropriate redaction recommendations," Tufano said.
Tufano did not immediately answer questions about why CMPD released a full copy of the video to members of the city council.
WBTV’s Coleen Harry asked CMPD whether the second officer who responded to the Burger King captured body-cam footage of the fatal shooting.
CMPD Lieutenant Brad Koch responded by saying the video “meets the burden of compelling public interest as stated in the petitioners request for release. This is the only body-worn camera video relevant to the incident and as approved by the Superior Court judge.”
City Council member Braxton Winston told the Observer that the additional video shows Kerl’s initial reactions after firing the shots, where she reportedly explains to other officers why she shot Franklin.
Winston told the Observer the first time Franklin is seen receiving medical attention is when paramedics arrive about the eight-minute mark of the video. Radio traffic between CMPD officers indicate Franklin was in an ambulance with first responders, leaving for the hospital approximately nine minutes after the shooting, according to the Observer.
“Many of our residents and viewing area have now seen the body worn camera footage of the police involved shooting from March 25th,” Mayor Vi Lyles said at a Charlotte city zoning meeting Monday night. "Now I can say to all of you that all of us have watched it and it was absolutely very very difficult.”
It will be weeks before the District Attorney’s Office will be making the decision on whether the fatal shooting of Franklin is justified.
Former Criminology chair at UNC-Charlotte, and current professor, Dr. Vivian Lord watched the body-cam video with WBTV’s Coleen Harry and instantly noted two things: officers had a lot of decisions to make and not a lot of time to make those decisions.
“There’s a lot of decisions that the officers are having just a few seconds to think about,” said Dr. Lord. “I have no idea what was going through the officers’ minds but they had an individual... the individual is already showing… even though he hasn’t shot the weapon yet – the individual is dangerous.”
Demonstrators gathered at the scene of the shooting shortly after the video was released. While some held signs criticizing CMPD, others called for peace and for more answers.
“We definitely have to react to this,” another woman said, “This is a problem that we keep seeing over and over and over in Charlotte.”
SAFE Coalition NC released a statement that questions why Franklin was shot. The group said, in their eyes, the video shows that he was complying when the shots were fired.
“If there is... a justifiable reason to not release the full 11 minutes then (CMPD) needs to make the case," Baker told the Observer.
Council is expected to make opening statements regarding the video and community response after a closed session Thursday evening.