Evansville police denies access to body cam footage after alleged assault of man

But a public access expert says current Indiana law on releasing the footage provides police departments an opportunity to quietly cover up instances of excessive force or other wrongdoing.

While the videos are public record, if police determine the officer’s body camera captures the police investigating a crime the department may withhold it from public view.

That’s what Evansville police did Friday. The department refused to release body cam footage that captures a June 28 incident where a man claims he was battered by a civilian riding along with police — while the officer stood by.

The Courier & Press asked to view the footage after Michael Flemming shared a two-minute cell phone video that shows the man attempting to break Flemming’s phone.

Police did not cite the man, who was participating in a police ride along, and refuse to identify him.

During the same incident, Flemming was cited for littering.

The incident underlines concerns Stephen Key, the executive director and general counsel for the Hoosier State Press Association, has with Indiana’s current body camera law.

“We’re concerned it could become a situation where the only time they release body cam footage is when it exonerates the officer,” Key said. “They could use ‘investigatory record’ to deny the public from seeing when an officer may have crossed the line.”

Addressing that concern will be no simple task, Key added. The HSPA plans to raise the issue with a legislative committee tasked with reviewing body cam law in Indiana this summer.

In Evansville, that could mean the community could review situations like the one involving Flemming and the person riding with the police that night.

The incident began when police arrested a man with several outstanding warrants at a Southside gas station. Flemming began recording the arrest because he felt the officers were using excessive force.

Flemming’s video shows him almost immediately being confronted by an officer.

“Back up, or I’m going to get you for interfering,” an officer, who later identified himself to Flemming as B. Underwood, is heard on the video saying.

“I’m not doing nothing,” Flemming replies.

“Yes you are,” Underwood says. “Plus, you’re smoking by a gas pump.”

The video shows a cigarette dropping to the ground.

“You’re going to throw that down, really?” Underwood says. “Give me your ID, I’m going to write you for littering.”

As Flemming gets in his car and hands Underwood his ID, the two continue speaking in raised voices. Flemming incorrectly accuses the officers of shooting the man they’d arrested while he was handcuffed in the back of the patrol car. (Police had used a stun gun.)

Underwood shuts Flemming’s car door and walks away. Moments later, a man’s voice from off screen says, “He didn’t get shot, dumb (expletive).”

“He did get shot (expletive),” Flemming replies, as a man in a white T-shirt approaches the car.

“Did you hear a gun shot?” the man says.

Before Flemming can reply, the man reaches into Flemming’s car and grabs his phone.

“I’m going to break you’re phone,” he says, as the video goes black, then cuts out.

After the video ends, Flemming said the officer returned to the car to stop Flemming from getting out and confronting the man.

“I was ready to get out of the car,” Flemming later told the Courier & Press. “I didn’t know who this guy was or why he was there. I didn’t understand why the cops are not concerned about a guy assaulting another guy – but they are concerned about a littering ticket.”

Police did not begin investigating the incident until weeks later, after Flemming filed a misdemeanor battery report against the man.

Police spokesman Sgt. Jason Cullum said he does not know if charges will be filed, and would not specifically discuss the incident involving the ride along.

“There are situations where people on the good side are allowed to put their hands on people on the bad side,” Cullum said. “It could have been a situation where (the man on the ride along) thought they were doing the right thing but weren’t. It was a dynamic situation. I’m not going to sit here three weeks later and rationalize and pass judgement one way or another.”

In any event, Cullum said the footage that captures the full altercation between Flemming, Underwood and the civilian ride along is part of the department’s active investigation against the man they arrested at the gas station – Issac Cosby.

Though they sometimes release videos of arrests, it’s general policy not to, Cullum said. At least until that criminal investigation is concluded.

All the footage will be entered into evidence when Cosby’s case goes to court, he added.

Police arrested Cosby on several felony warrants after a woman told officers she’d seen him with a handgun at Hammerheads Bar, in Downtown Evansville. Cosby had already left the bar when the report was made, but an officer spotted him with a group of people at the gas station on South Kentucky and Washington avenues. The officer called for backup, then moved in to arrest Cosby, according to a police probable cause affidavit.

Police did find an unlicensed handgun in Cosby’s SUV, according to the affidavit.

The video Flemming posted of the incident to his Facebook page was seen around the country. It created an initial public outcry because the post read that police had shot a man handcuffed in the back of a patrol car.

Cullum said the police department felt it addressed that issue without releasing the body cam footage by simply clarifying that no one had been shot.

“If every time somebody came out and made a false claim we released the videos, then we’re not running the agency anymore – the public is,” Cullum said.

Since Evansville police began using body cams, the department released footage taken during active criminal investigations at least three times, Cullum said. Each time, it was to show that rumors about police wrongdoing were false.

“Public order sometimes supersedes” withholding the footage, Cullum said. “We will release videos when the community will suffer more if we withheld it. The concern that if the video shows an officer in the wrong, we won’t release it – when we’ve released videos it’s not been to justify force, but show the claims people are making are false.”

In the case of Flemming’s altercation with the civilian ride along, Cullum said, the public outcry simply is not strong enough.