Judge rules CMPD not in contempt over handling of Burger King OIS shooting video

Judge rules CMPD not in contempt over handling of Burger King OIS shooting video
The officer-involved shooting happened around 9 a.m. in the area of a Burger King on Beatties Ford Road near I-85 northbound. Police say the officer involved, who has not been identified, has been placed on administrative leave.

CHARLOTTE, N.C. (WBTV) - A judge has ruled Charlotte-Mecklenburg Police Department Chief Kerr Putney will not be held in contempt of court over the department’s handling of video depicting a deadly officer-involved shooting that played out in a Burger King parking lot in March.

The rules comes in response to a motion and order to show cause filed by a WBTV reporter. The motion asked a court to hold Putney--who, as chief, is responsible for complying with a state law regarding the release of police video--in contempt for failing to follow the orders of two judges.

The ruling, which was handed down Friday by Superior Court Judge Lisa Bell, is the latest court development in a months-long courtroom drama that stemmed from the shooting of Danquirs Franklin in the parking lot of a Burger King on Beatties Ford road in late March.

Officers responded to the restaurant after multiple people called 911 to report a man with a gun. The video shows CMPD Officer Wende Kerle shoot and kill Franklin after he is ordered to “drop the weapon” or “put the gun down” more than a dozen times.

Franklin appears to be holding the gun by the top of the slide action and moving it towards the ground when he is shot.

A review of the shooting by the Mecklenburg County District Attorney’s Office has not been complete.

A WBTV reporter first filed a petition in court for video of Franklin’s shooting the day it happened, after some people who claimed to have witnessed the shooting said Franklin was unarmed.

In response to the petition, a judge ordered the video be released. Ultimately, CMPD released 2:30 of a roughly 11:00 video. When a WBTV reporter pressed to for the release of the full video, CMPD refused, which is when the reporter filed the motion to show cause.

The motion to show cause alleged the CMPD violated a court order requiring the video to be transmitted to the court for in-camera review when it chose to only send a portion of the video without disclosing that additional video existed. In court, a lawyer for the WBTV reporter also alleged the department violated a second court order by showing the video to members of the Charlotte City Council before the video was ordered released to the public.

In announcing her ruling on Friday, Bell outlined technical reasons why showing the video to the city council didn’t violate the court’s order on release and said the original petition for the video was written vaguely enough that CMPD didn’t disobey the judge in only transmitting a portion of the video instead of all 11:00 minutes.

Specifically, Bell asked a lawyer for CMPD to prepare an order making the following findings of fact:

  • The Court’s Order of April 11, 2019 pertains only to the video which Judge Hoover reviewed in camera, which was 2 minutes, 20 seconds in length, as Judge Hoover could not order the release of a video of which he was unaware.
  • The Order prohibited “public release” of the video before 2:00 pm on April 15. “Release” is defined by the applicable statute as “to provide a copy of a recording.”
  • “Disclose” is defined by the applicable statute as “to make a recording available for viewing or listening.”
  • Movant failed to show that the video was “released” as opposed to “disclosed.”
  • Chief Putney is not in contempt of the Court’s Order of April 11, 2019.
  • The Court’s Order of March 26, 2019 ordered Chief Putney to “provide to the Court a copy of the custodial law enforcement agency recording identified in the attached Petition.”
  • The Petition reads, in pertinent part, “To the extent body camera footage or, alternative (sic) any other law enforcement agency recording, of the shooting exists, it is in the public interest to release the footage to document what took place in the moments leading up to, during and immediately after the shooting.”
  • The Court’s Order of March 26, 2019 is a valid court order, is still in force and Chief Putney had and still has the ability to comply with the Order.
  • Chief Putney’s failure to release the entire recording was not willful disobedience of the Court order.
  • While the Court’s Order was not ambiguous (provide a copy of the identified recording), the petition was ambiguous in its identification of what was being requested.
  • A court may find a party’s noncompliance to be willful “if there is both knowledge and a stubborn resistance of a trial court directive.” Williams v. Chaney, N.C. App. , , 792 S.E.2d 207, 210 (2016) (citation and quotation marks omitted). “However, if the prior order is ambiguous such that a defendant could not understand his respective rights and obligations under that order, he cannot be said to have knowledge of that order for purposes of contempt proceedings.” [**28] Id. at , 792 S.E.2d at 210.
  • I do not find that Chief Putney could not understand his rights and obligations under the Court Order. However, I find that the language of the petition was sufficiently unclear that Chief Putney cannot be held in contempt for not releasing what Mr. Oschner thought he was identifying in the petition.

Following the court hearing on the motion to show cause in April, CMPD changed its policy on providing police video to require all video related to a petition be sent to a judge for review when a petition for video is filed.

WBTV and the Charlotte Observer have filed additional requests in court for all video related to the Franklin shooting.

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