Video of police shooting that could shock Chicago

Editor’s Note: Danny Cevallos is a CNN legal analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter @CevallosLaw. The opinions expressed in this commentary are solely his.

A Cook County Circuit Court judge has ruled that police must release dashcam video showing the death of 17-year-old old Laquan McDonald, who was shot 16 times by a Chicago police officer in October 2014.

The video is expected to show the officer shooting McDonald even as he lay on the ground.

Police say McDonald had PCP in his system when he died and was refusing police commands to drop a 4-inch knife.

The judge, Franklin Valderrama, not only ordered the video released by Wednesday, he also denied a motion from the city to appeal the decision, which all but assures this will happen.

Chicago’s Mayor Rahm Emanuel recently claimed, along with the Chicago Police Department, that release of the video might compromise an ongoing investigation. But last week, the mayor’s office released a statement suggesting that even Hizzoner is conflicted about the video: “Police officers are entrusted to uphold the law, and to provide safety to our residents,” the mayor said. “In this case unfortunately, it appears an officer violated that trust at every level.”

And on Tuesday, the officer who shot McDonald, Jason Van Dyke, was charged with first-degree murder.

Politically complicated but legally simple

Whether such a video should be publicly released is both a political issue and a legal issue.

Politically, it’s complicated. Public release of this video could foment civil unrest; community leaders are already calling for calm. A Chicago Tribune columnist has said releasing the video could tear the city apart. The mayor’s own statement is likely to strain relations with law enforcement.

Legally, though, it was a simple decision. Public information is supposed to be public.

Of course, that’s said with a wink and a nod, and dripping with the irony it deserves. Officially, the fundamental philosophy and the public policy of our government, including the state of Illinois, is that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees.

In practice, however, anyone who has spent time in a courthouse or a government agency knows that while records are theoretically “public,” public agencies cloak themselves in the protections of foot-dragging and 1970s-era recordkeeping, which renders public records effectively private – or, even worse, lost in filing room oblivion.

Just try to find the order online

Don’t believe me? Does anyone else find it ironic that a Cook County Circuit Court judge issued an 18-page ruling that forced a government agency to make records public – and that 18-page ruling itself is nowhere to be found on the Internet? In other words, a government entity ordered another government entity to make a record available to the public, but didn’t bother to make that order accessible to the public.

Maybe it’s out there. Maybe someone else found it on the “Dark Web,” or the ARPANET, or on Silk Road. But you shouldn’t need an advanced degree in Google to track down public records – especially one that could be scanned and uploaded with a free app on a smartphone in about three minutes.

Internet aside, what do you think would happen if you telephoned the Cook County Courthouse to ask for a copy of this public opinion to be faxed to you? You can play a popular attorney betting game called “How many times will I be transferred to different people?” And if you like parlay bets, you can also wager on whether your call will be outright disconnected by “accident” at some point. To be fair, this clerk’s office might spring into action to fax, email or even mail copies of court orders at my mere request. I haven’t bothered to ask. But then again, I don’t often bother to ask any more.

Of course, there are plenty of diligent, hardworking courthouse employees too, but they are no match for the institutionalized inertia and disorganization of your average antiquated government filing system.

When documents can be withheld

Police records are understandably a little different. They cannot be as presumptively open as other government records. Law enforcement agencies are, by their nature, keepers of sensitive information. In the McDonald case, Chicago PD initially denied the press’s Freedom of Information Act request for the video, claiming it was legally permitted to refuse.

Illinois law permits a public body to withhold records when disclosure would interfere with active administrative enforcement proceedings conducted by the public body that received the FOIA request, or if disclosure would create a substantial likelihood that a person will be deprived of a fair trial or an impartial hearing.

The police department had the burden to prove by clear and convincing evidence that disclosure would either actually interfere with active administrative enforcement proceedings (including active investigations of alleged police misconduct), or it had to show substantial likelihood that disclosure would deprive someone of a fair trial or hearing.

A casual reading of the law might appear to militate in favor of the police and withholding the video. It’s easy to miss the prerequisite upon which the judge relied in ordering disclosure. The law states that an “ongoing investigation” is only an exemption to public disclosure if the agency that received the FOIA request is the one actually conducting the probe.

It seems that the Chicago Police Deparment had no ongoing investigation of its own. Instead, it’s federal authorities that are considering charges or some other action against the officer. Therefore, no law shielded the Chicago PD from disclosure.

Now, because the court hasn’t made its own order readily available online, this information has to be cobbled from private sources – as in journalists, the same people who requested this information in the first place.

Maybe the case demonstrates the reality of open records laws: Every person is entitled to full and complete information regarding the affairs of government – as long as the person is willing to: ask for the specific records in writing, wait for the government to delay responding, receive a denial letter from the government, and finally hire a lawyer and litigate the matter in court. And even if you win in court and get a favorable order from the judge, well, good luck finding that public document online.

Join us on Facebook.com/CNNOpinion.
Read CNNOpinion’s Flipboard magazine.