Updated at 3:45 p.m.
Video footage from body cameras worn by Pasquotank County sheriff’s deputies last week during a shooting in which Andrew Brown Jr. – a 42-year-old Black man – was killed won’t be immediately released publicly.
After more than 52 minutes of deliberation in private chambers, Pitt County Superior Court Judge Jeff Foster announced the ruling Wednesday morning at the Pasquotank County courthouse. Foster completely denied a request from a group of media outlets, including WUNC, for the release of footage.
On the second petition for the release of the video footage – filed by the Pasquotank County Sheriff’s Office on behalf of Brown’s son Khalil Ferebee – Foster ruled that Ferebee, Brown’s other immediate family, and one attorney licensed to practice law in North Carolina can view the footage within 10 days, after it has been redacted to blur out the identities of the officers involved.
Foster said that the video will be released to Ferebee and the family in no less than 30, but no more than 45 days.
#AndrewBrown family attorney Wayne Kendall reacts to the judge’s decision to disclose body cam footage of Brown’s shooting to the family, but not release it to the public. #ElizabethCity pic.twitter.com/LPwzgoDKFT
— Will Michaels (@WillMichaels) April 28, 2021
Lawyer Harry Daniels, a member of the Brown family's legal team, spoke with reporters immediately following the decision.
"Show us the tape and we'll determine what's justified [and] what's not justified," he said in response to the judge's decision. "Right now it is on their hands, it is on the hands of the Pasquotank County government. Show the tape."
Another family lawyer, Wayne Kendall, said that they did consider it a "partial victory" from the "standpoint of the family."
The footage includes multiple videos from several body cameras and dash cameras. So far, Brown’s family has only seen 20 seconds of redacted footage from one of those videos. Pasquotank sheriff's deputies shot and killed Brown last Wednesday while they were carrying out drug-related search and arrest warrants.
“The release may harm the reputation or jeopardize the safety of a person,” said Foster, while giving his ruling on the media’s request. “The release would create a serious threat to the fair, impartial and orderly administration of justice."
He added: "The court therefore finds that the good cause does not exist for granting the petition of the media petitioners and therefore that petition is respectfully denied by the court. That is my ruling.”
Judge said releasing video would be in the public interest, but could compromise the investigation, judicial process, and safety of people in videos. Thus the delay.
— Sarah McCammon📻 (@sarahmccammon) April 28, 2021
The hearings lasted a little more than an hour Wednesday morning, and Foster heard arguments from District Attorney Andrew Womble, attorney H.P. Williams and attorney Mike Tadych.
Womble said that Brown had hit law enforcement officers with his car before they opened fire, a statement that contradicts what family attorneys for Brown had claimed in recent days. Womble said the video shows that Brown’s car made contact with law enforcement twice before shots could be heard on the video.
“As it backs up, it does make contact with law enforcement officers,” he said, adding that the car stops again. “The next movement of the car is forward. It is in the direction of law enforcement and makes contact with law enforcement. It is then, and only then, that you hear shots.”
Pasquotank County Sheriff Tommy Wooten has previously indicated that none of the deputies were injured.
Womble argued that body camera video from the shooting, a portion of which was shown to the family on Monday, should be kept from the public for another month so that state investigators can make progress on their probe of the shooting.
An independent autopsy report released by family attorneys Tuesday said that Brown was shot five times, one of which entered in the back of his head. The autopsy was performed by North Carolina-based pathologist Dr. Brent Hall. The family's lawyers also released a copy of the death certificate, which lists the cause of death as a “penetrating gunshot wound of the head.” The certificate, signed by a paramedic services instructor who serves as a local medical examiner, describes the death as a homicide.
Attorney H.P. Williams was representing “unnamed parties,” but told Judge Foster that he didn’t believe it was necessary to release the video whatsoever and that releasing it publicly and unedited could “ruin the reputation” of people involved. Williams then added, “The officers (involved) are very distraught… but we believe the shooting was justified.”
Tadych was representing a coalition of more than 20 media organizations seeking the release of the video.
Asked whether he would appeal Foster's decision, Tadych said he is waiting to review the judge’s written order and that "you can't appeal something that isn't finished."
During the hearing, Tadych advocated for the release of the tapes to get clarity on the events.
“The best vaccine for rumor is fact,” Tadych said. “We do not believe the release of these recordings will jeopardize any ongoing investigations.”
Womble countered: “The video is the ultimate issue. It will hinder a fair trial… You cannot swing a skunk in front of a group of people and ask them not to smell it.”
“The release at this time would create a serious threat to the fair, impartial and orderly administration of justice,” Foster ultimately ruled.
#AndrewBrown’s family and attorneys have arrived #ElizabethCity pic.twitter.com/p9i6KPpfYA
— Will Michaels (@WillMichaels) April 28, 2021
Foster is an appointee of former Republican Governor Pat McCrory.
The FBI’s Charlotte field office, which opened the civil rights investigation into Brown’s death, said in a statement Tuesday that its agents planned to work closely with the Department of Justice “to determine whether federal laws were violated."
The State Bureau of Investigation began a probe of the shooting shortly after it happened. It initially said that it would turn its findings over to the local district attorney, as is standard under state laws and procedures.
North Carolina Gov. Roy Cooper, a Democrat, urged the appointment of a special prosecutor to take the state's case over from Womble
“This would help assure the community and Mr. Brown’s family that a decision on pursuing criminal charges is conducted without bias,” Cooper said in a statement.
However, under state law, the district attorney would have to agree to let another prosecutor step in. Womble indicated in a statement Tuesday that he will not do so.
In response to a reporter question in a coronavirus media briefing on Wednesday, Cooper said he didn't have a specific timeline for how soon footage should be released. Instead, he highlighted body camera legislation in North Carolina.
"When this law was passed in 2016, I said that we had it backward and should presume these videos were public record," said Cooper. "For trust and confidence in the system, the video should be released as soon as possible."
WUNC's Dave DeWitt and Will Michaels contributed to this report.
