By Carli Brosseau and Rebecca Woolington
The sheriff overseeing the investigation of the Umpqua Community College mass shooting wants lawmakers to block public access to images collected as part of any death investigation in Oregon.
Douglas County Sheriff John Hanlin says the measure is needed to protect family members of victims from sensationalism and exploitation.
"I've never seen a situation where sharing images of the deceased are in the best interest of the public," the sheriff said.
But the bill goes much further than that. It would apply to any image "related to" a death, not just pictures of victims, in investigations ranging from fatal car crashes to fires, inmate deaths and police shootings. Exempting such a wide array of records from disclosure would undercut government accountability, transparency advocates say.
"I worry it could become the exceptional case that journalists could pursue what actually happened in the case of a death," said media attorney Duane Bosworth. He described the scope of the current language as "vastly overbroad."
Senate Bill 508 arises at a time when footage collected by body cameras, bystanders with smartphones and surveillance cameras play a growing role in the public debate about police force. The credibility of law enforcement officials has been increasingly challenged in recent years. Journalists use photos and video that police collect to crosscheck the official narrative and evaluate the quality of an investigation.
The proposal also comes at time when Oregon lawmakers are working on other legislation aimed at expanding transparency and limiting public records exemptions.
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After the Oct. 1, 2015 rampage at Umpqua Community College, Hanlin drew national headlines for vowing to never say the shooter's name. He promised family members of the victims he'd do all he could to prevent the release of images from the investigation.
Douglas County law enforcement officials have not released records of any kind over the course of their 18-month investigation into the mass shooting that left 10 people dead, including the shooter, and eight others injured.
Conspiracy theorists in the past have accused authorities of fabricating mass shootings such as the one at Sandy Hook Elementary School in Newtown, Conn., in 2012.
Hanlin himself once shared a video that suggested the Newtown massacre was staged by the federal government. Hanlin said he inadvertently fed into the conspiracy theories and didn't mean to suggest the shooting was a hoax.
Bosworth, the media attorney, said keeping the public from seeing any images from mass shooting investigations "would allow for alternative facts to be put forth" by conspiracy theorists.
Hanlin said he doesn't think so.
"For some of these conspiracy folks, I don't think it matters how open you are, or how transparent you are," Hanlin said.
The sheriff also said he doesn't think the release of images gathered by police promotes accountability. He said it's not the job of journalists to look for wrongdoing by police.
"There are a lot of checks and balances and assurances along the way that will expose law enforcement if law enforcement is in the wrong," Hanlin said. "We police ourselves extremely well."
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The bill being debated would set an exceptionally high bar for public disclosure.
A person requesting police images would have to make the case that the public interest overwhelms any argument for privacy and that the information in the images can't come from somewhere else. The requester must show "by clear and convincing evidence" that the public interest requires disclosure -- a burden of proof higher than for most of Oregon's public records exemptions.
A judge, district attorney or attorney general would decide, upon appeal, whether to release the images, depending on which police agency investigated the death.
Hanlin said he first approached senators Floyd Prozanski and Jeff Kruse about changing the state's public records law in early 2016, months after the Umpqua shooting. The lawmakers liked the sheriff's idea, but the bill didn't make it out of the committee during the short session.
Now, the idea is again gaining traction. A work session to move the bill out of the Senate Judiciary Committee has been scheduled for Thursday.
Hanlin wanted the law in place before the investigation into the Umpqua Community College shooting was complete. It's unclear what investigatory work remains.
Hanlin said he's been frustrated that local authorities finished their portion months ago and that continuing work by federal authorities was preventing Douglas County from closing the case. Beth Anne Steele, an FBI spokeswoman, said the federal agency's Behavioral Analysis Unit has completed a review of the shooting that it plans to share with Douglas County officials. Neither she nor the U.S. Attorney's Office in Oregon would say whether they have active roles in the investigation.
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Most mainstream media organizations, including The Oregonian/OregonLive, ordinarily refrain from publishing post-mortem images.
But graphic images can sometimes change minds. President Trump, for example, this week ordered a missile strike on a military post in Syria after seeing images of children poisoned by chemical weapons gasping for breath. He previously opposed U.S. military intervention in Syria.
"It's ugly," Jack Orchard, an attorney who has represented Oregon media organizations, said of the Syria footage. "It's beyond contemplation that you would do that to another human being. But it's news."
Orchard worries the bill could not only block public access to death investigation images, but also amplify pressure not to release or publish images that may be graphic, but newsworthy.
Hanlin and other proponents of the new exemption feel otherwise. They say the publication of gruesome images is almost always inappropriate and offensive.
Oregon district attorneys support the proposed exemption. They say even rural district attorneys regularly get public records requests for images that include dead bodies. Those images sometimes end up on websites that prosecutors see as glorifying violence.
"It's a really big problem," Kevin Neely told lawmakers on behalf of the Oregon District Attorneys Association. "We don't have the tools we need right now to decline these requests on a regular basis."
The Multnomah County district attorney is among those in favor.
"We think it is an appropriate limitation on often-gruesome photos the release of which could create not just an unreasonable, but also an undue invasion of privacy for the families of victims," said prosecutor Jeff Howes, first assistant to District Attorney Rod Underhill. "The Multnomah County District Attorney's Office has shown that we are quite adept at employing that privacy balancing test."
The test would also be applied to police shootings and in-custody deaths, Howes said.
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Oregon's not alone in trying to limit public access to pictures taken by police agencies.
Following the Sandy Hook shooting, Connecticut lawmakers passed a bill limiting access to images of homicide victims, Nieman Lab reported.
In Montana, a 2017 bill intended to promote public information morphed into a bill that would have shielded mugshots from public view without a judge's order, according to the Bismarck Tribune. A slim majority of state House members voted against it.
In North Carolina, a law that went into effect last October declared that police body camera footage isn't a public record. A requester can pay $200 and appeal to a judge to gain access to the recordings. Not even the person filmed has an automatic right to see it.
The former North Carolina governor said at the signing ceremony that the bill "ensures transparency," the News & Observer reported.
-- Carli Brosseau and Rebecca Woolington