Release of video in Officer Krystal Rivera case delayed

A judge has barred the release of video and other materials related to the investigation into the friendly fire shooting death of Chicago police Officer Krystal Rivera, a move that came after the Cook County state’s attorney’s office asked that the information be shielded from public records requests.

Rivera, 36, a four-year veteran of the department, was mistakenly shot and killed by a fellow officer on June 5 after a confrontation with an armed suspect.

The tragic slaying of the officer, who will be laid to rest on Wednesday, happened amid long-brewing debates about the safety of foot pursuits and is sure to raise questions about training and officer safety in general.

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But the court order, signed June 13 by Judge Deidre Dyer, delays the public’s access to critical information about the matter, even though long-held public policy since the 2014 fatal shooting of Laquan McDonald favors timely access to video that can shed light on officer-involved shootings.

Though it’s not uncommon for video to be restricted from public view while an investigation or prosecution is proceeding, legal experts and advocates for transparency raised concerns about the move, especially if such orders are being sought by the state and granted by judges without a thorough examination of balance between the integrity of the case and the public’s right to know how their government is functioning.

Multiple legal experts noted that the motion, filed by the prosecutor’s office on June 13, referenced federal exemptions to the Freedom of Information Act rather than the state’s companion law that would govern it.

“There is a big picture concern that the default role of transparency is being flipped on its head whenever there is a criminal case,” said Craig Futterman, a clinical professor of law at the University of Chicago Law School. “I have a fear that these motions are being filed and orders are being entered without a particularized interrogation that was envisioned under the FOIA statute.”

Matt McGrath, a spokesman for the state’s attorney’s office, said in a statement that said the motion is standard in criminal cases.

“To clarify, the motion to shield body-worn camera footage in this case is standard and related to the ongoing criminal prosecution of two defendants charged with serious felony gun and narcotics possession offenses — neither of whom is a police officer,” McGrath said in the statement. “In order to protect a criminal defendant’s constitutional rights to due process, including the right to a fair trial, the law dictates how and when such evidence should be disseminated — and a judicial determination was made that complied with the law. Any comparison to past police-involved shootings is deeply misguided.”

Requests for comment from the city were not returned by deadline.

Throughout the past decade, video from police body-worn cameras and other sources has become a critical check on official narratives about police shootings after the release of such material became policy following the murder of 17-year-old McDonald at the hands of former Chicago police Officer Jason Van Dyke.

The dashcam video of the shooting captured Van Dyke, who served a little more than three years in prison, shooting the teenager 16 times as he walked away. The video contradicted the accounts of police and led to a rare murder charge against Van Dyke.

With the fight over the release of the dashcam video still fresh in the city’s mind, the newly formulated Civilian Office of Police Accountability carried out a city policy to publish CPD body-worn camera footage and related police records within 60 days of a police shooting. The agency replaced the Independent Police Review Authority after the McDonald video was released in 2015.

The city’s policy, though, has exceptions and cannot supersede a judge’s order.

Experts said they believe the policy to release videos has rebuilt some public trust, but raised concerns about it backsliding if videos are routinely shielded by judges.

“We would be back to the days of pre-Laquan McDonald,” said Matt Topic, a partner at the civil rights firm Loevy and Loevy who litigated for the release of the dashcam video of McDonald’s shooting. “We would be back to not knowing if what police are telling us is true or not.”

In a criminal case related to Rivera’s death, Adrian Rucker, 25, is charged with armed violence and other felonies. Prosecutors alleged that Rucker pointed an AR-style pistol after Rivera and her partner followed another suspect into the apartment.

Prosecutors later charged a second man, Jaylin Arnold, 27.

In the motion to withhold release of the video and other materials filed in Rucker’s case, Cook County prosecutors argued that the release could interfere with enforcement proceedings and a defendant’s right to a fair trial.

Futterman pointed out that usually defense attorneys would be the party that makes arguments about their clients’ due process rights.

The judge’s order bars release until “further order of the court.”

In a statement, a COPA spokesperson said: “The materials will be available under FOIA once the court order is lifted. Until then, COPA is prohibited from releasing them.”

It’s not clear, though, when and how the order may be lifted.

“Someone would have to incur the time and expense to vacate that order unless we think the state’s attorney would move to vacate,” Topic said.

Stephanie Holmes Didwania, an associate professor of law at the Northwestern University Pritzker School of Law, said federal and state Freedom of Information laws have “a strong preference for disclosure.”

“It’s designed to allow the public to be adequately informed about what their government is doing,” she said.

Holmes Didwania noted, though, that the laws have exceptions, and that law enforcement can have legitimate interests in keeping investigations confidential. She said prosecutors could be concerned about issues like the video shaping the accounts of witnesses who have yet to be interviewed.

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“The statute itself is trying to balance these two competing interests,” she said, though she added that Illinois’ FOIA statute requires the government to provide clear and convincing evidence to support an exemption from the law.

Loren Jones, director of the Criminal Legal Systems Program at Impact for Equity, said that the government should be held to a high standard in overcoming public access laws related to police shootings.

“When there is a case that is as complicated and tragic as this case, I think the standard for the balance that we have to take into account here and overcome is really high,” she said. “It’s important to keep our foot on the pedal as far as ensuring that … our government is being transparent as possible in these situations.”