Pittsburgh residents got a close look at the 2021 arrest of Jim Rogers last week, thanks to the efforts of the attorney representing the Rogers family. Legal experts say the release is a reminder of how the technology could make policing more transparent.
If people had a chance to see it.
“I believe the body cams are the equalizing factor that removes the subjectivity from somebody’s narrative," said Todd Hollis, the Rogers family attorney.
“I hope [releasing] the tape has an effect on policy,” he added. “That was the entire purpose for releasing the video.”
Hollis said that unless the public can see what happened, body camera footage can’t be used to drive change.
But experts argue that policies on releasing police footage too often shield it from public view.
Broken promise?
Police arrested Rogers while responding to a report of a stolen bicycle in Bloomfield. During that encounter, Rogers was shocked with a Taser 10 times. He died in a hospital the next day.
After reaching an $8 million settlement with the City of Pittsburgh last spring, Hollis' firm released more than an hour of footage from Rogers' encounter with police last week, as well as an expert analysis provided by a former Pittsburgh officer. He said making the material available to the public was an exercise in “transparency.”
But while body cameras have been touted as the public’s window into police misconduct, the shades are often drawn shut. A federal judge granted Hollis permission to post the footage last month, but without that ruling, the footage may have never been released.
A 2017 state law closely guards public access to police footage, and whatever does come out is typically up to the discretion of the District Attorney. University of Pittsburgh law professor David Harris said the law’s guardrails have “drained the life out of” the potential of body cameras.
“We got the same series of promises… ‘We’ll all get to see what happened. Everybody will be able to make their own judgment.’ That was the promise to the public,” Harris said. “I think any fair assessment would tell you that at least in Pennsylvania, that is really not been the case.”
In 2017, the Pennsylvania Supreme Court ruled that police dashboard camera videos are public records subject to the state’s Right to Know process, unless the police agency can prove the footage is investigative material. But soon after, the state legislature passed Act 22, which carved out an exception for police footage from the state’s Right to Know Law.
Act 22 created new requirements for the public to access body camera footage. To start, the applicant must file a request in person or by certified mail within 60 days of the incident. They must also disclose their “relationship” to the incident.
According to Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association, the type of relationship an applicant has doesn’t appear to make a difference in obtaining the footage.
“Act 22 requires the requester to explain their involvement in the situation, [but] it doesn’t give any specific party superior rights,” she said. Families or those directly involved don’t have more access than the press, for example.
In cases where an incident occurred inside a residence, the applicant must attempt to list the names of everyone in the footage. That can be difficult without having seen it. These requirements can be a tough hill to climb, especially for people unfamiliar with the law, Melewsky said.
“The law was not designed to favor transparency,” she said. “It gives law enforcement agencies considerably broad discretion to deny access for one or more reasons.”
Those reasons can vary. A law enforcement agency can deny the request if it determines the footage contains evidence in an ongoing investigation, or it includes confidential information that can’t reasonably be redacted.
Act 22 became law shortly before Pittsburgh Police began implementing body cameras in the police bureau. A full rollout of the technology came later in 2019. But Melewsky noted that footage deemed investigatory was already shielded by the Right to Know law.
“Once something is deemed an investigatory record, it is investigatory forever,” she said. “In other states there's some amount of access after an investigation is closed. Pennsylvania law does not do that.”
There have been failed efforts to allow more public access to police footage. Pittsburgh-area Democratic state Rep. Dan Miller has proposed bills to rescind the right-to-know exclusions for police footage, and loosen requirements to access it.
But legislation stalled in committee, even when the momentum for police reform was at its peak in the aftermath of the 2020 murder of George Floyd. Miller said there is no legislation currently in the state House that would make the footage more obtainable.
“Body cameras help both sides of the public-police interaction,” he said. “But if one side cannot gain access to it … then it does not provide [a] level of trust.”
In the meantime, municipalities across Pennsylvania continue to invest in body cameras. In June, Pittsburgh expanded its contract with Axon Enterprise to include $39 million for new body cameras, dashboard cameras and tasers.
'It is very rare'
The amount of footage that was made public is as remarkable as the fact that any footage was released at all, according to Harris.
“It is very rare in Pittsburgh to see much footage from police body cams at all,” said Harris. “It’s rarer still to see the entire encounter from the 911 call all the way through to the end.”
The 52-minute video Hollis released starts with the 911 call received by county dispatchers on the morning of Oct. 13, 2021. It cuts to body camera footage from Officer Keith Edmond’s camera as he arrives on the scene and confronts Rogers.
Footage includes Edmonds attempting to restrain Rogers before tasering him repeatedly. The footage shows Rogers failing to comply with police commands, but seeming to pose little threat.
But what the public hadn’t seen until last week was the time Rogers spent in the back of a police vehicle begging for medical attention. In a second batch of footage Hollis released, officers can be seen receiving medical assistance on the scene while Rogers screams in between labored breathing. Eventually, officers transport Rogers across town to UPMC Mercy Hospital, but without the use of their lights or sirens. Once they arrive, officers are unable to rouse Rogers, and they remove him from the vehicle to provide chest compressions.
Hollis published the footage, and the expert report, to his law firm’s website last week after Federal Magistrate Judge Cynthia Eddy granted an order that permitted its release.
The City of Pittsburgh agreed to not challenge the release of the video as part of its settlement with the Rogers family. In legal filings, Hollis cited court precedent in favor of government transparency, and he said he hopes more plaintiffs seek to release footage in their cases.
“More litigants should move to have these body cam images released,” Hollis said. “It protects the police officer when false statements are made, and it certainly supports arrestees when they claim that civil rights abuses have occurred during the course of their arrest.”
But the labor union that represents the officers in the video have argued that the courts should have never allowed the footage to come out. The Fraternal Order of Police President Robert Swartzwelder said the union should have been notified about Hollis’ petition and allowed to intervene.
Swartzwelder claimed the union’s contract with the city “very clearly states you cannot make an outside agreement with anyone, including the federal government” without first consulting the union if it affects the terms of employment.
He noted the city remains in arbitration with two of the officers in the footage, and said releasing the body camera tapes could negatively impact the arbitration process.
Mayor Ed Gainey's office rebutted those claims, stating the police contract doesn't apply to federal courts, and that public access to the footage should not sway an arbitration hearing.
“This arbitration is in front of an experienced trier of fact who abides by the rule that they will only consider the evidence that is presented to them,” said city spokesperson Maria Montaño.
While Swartzwelder argued the city should have done more to block the order, the city said it had no role in releasing the footage.
“Mr. Hollis motioned the court to allow him to release the discovery [evidence] once the case was over,” Montaño said. “The city did not make the motion. The Court granted that motion.”
'It's not a criminal case'
Without the court order, whether the public would have seen the Jim Rogers tape would have depended on Allegheny District Attorney Steve Zappala. But his reaction to the tape has changed over time.
In 2022, Zappala told WPXI that he “absolutely” saw “criminality involved” and that he planned to release the footage. He convened a grand jury to review the incident.
But the panel did not ultimately yield any indictments, and Zappala did not release the footage. Last week he told reporters that releasing the footage was a “substantial” violation of the officers’ civil rights.
While he described police action in the video as “reprehensible,” he argued the evidence doesn’t support criminal charges. “It’s not a criminal case,” Zappala said. “When the medical examiner comes in and says something is accidental, that means there's no criminal intent.”
In fact, he criticized Hollis for releasing the footage and accusing the officers of a crime in a court filing.
“I don’t care if a federal judge said you can release it,” Zappala said. “You don't call people criminals without the appropriate process.”
Zappala suggested that publicizing the footage was “all about money.”
Hollis refuted the accusation, noting that a settlement in the case had already been reached. The Rogers family wanted the video “to serve as an example of how policing should not occur," he said.
“This case… it had to be about more than money. My clients believed that.”
Shortly after the video’s release, Gainey’s office released a statement noting procedural changes that were made after Rogers’ death. Some of those changes include assigning an officer to closely monitor those in custody during transfer to the nearest emergency room. (UPMC Mercy was located across town from where Rogers was taken into custody, even though other hospitals were closer.)
Others include departmental retraining on how to avoid responding to a scene with a single officer and requiring Emergency Medical Services to evaluate an individual after a Taser is deployed.
But Hollis argued that for Jim Rogers, officers failed to follow procedures that were already in place. Without seeing the video, he said, the public would have no way to know.
