Despite a court ruling suggesting that Montgomery police used excessive force, and despite the family’s call for the body camera footage to be made public, the four-year-old video of a police dog biting and killing a Black man remains private.

A federal judge last week denied immunity for Montgomery K-9 handler Nicholas Barber, ruling that a reasonable officer would know that sending the dog off-leash into a surrounded home before giving a suspect a chance to speak or surrender “constitutes excessive force.”

And though more than four years have passed since the fatal bite, the public still can’t see the bodycam video and judge what happened for themselves because the city wouldn’t release it and now it’s under a confidentiality seal in a federal lawsuit against the officer. Echoing the debate in Memphis last month, Montgomery has even argued in court filings that this bodycam video could cause riots.

That’s not an unusual result in Alabama, as the public seldom gets to see bodycam footage when the police injure or kill someone. Unlike in Memphis, where city officials recently released video showing officers beating, punching and kicking Tyre Nichols, in Alabama police do not have to share bodycam footage and rarely do. One department in north Alabama even withheld footage while asking the public to pay blindly for an officer’s legal bills as he stood trial for murder in an on-duty shooting.

“Body cameras were sold to the public as a transparency tool,” said Chad Chavez, of Citizens for Criminal Justice Reform, a group that advocates for greater accountability and transparency in policing in Alabama. “The pitch was that it would give more clarity to citizens about what the police are doing.”

Yet cities and police departments in Alabama often fight for years to keep the videos hidden from public view.

That’s what happened in Montgomery, where police ignored or denied media requests and where the family of Joseph Pettaway has fought in civil court for more than two years to make the footage of his death public. The city has fiercely fought the release.

In court records in 2020, Montgomery’s lawyers said that releasing the footage has “the potential of creating and/or facilitating civil unrest” and would expose the city and its officers to “annoyance, embarrassment, oppression, and undue burden.”

In an order late last year denying the family’s latest request to make the footage public, U.S. Magistrate Judge Jerusha Adams cited the upcoming civil trial and the “graphic nature and emotional impact” of the footage.

Judge Adams wrote of the Montgomery video: “Due to its graphic nature and emotional impact, the footage from the police body cameras cannot be unseen, ignored, or easily set aside.”

Secret video

Pettaway died on July 8, 2018 after the dog bit his femoral artery.

Police got a call that night about a possible burglary inside a small home that did not have electricity or water service. The dog found 51-year-old Pettaway under a bed and grabbed him with his teeth. Pettaway’s family said he was staying in a house he had been helping to repair earlier that day.

The dog, Niko, bit him for about two minutes until Barber handcuffed Pettaway and choked the dog to get him to release the bite. Emily C. Marks, the chief judge in federal court in Montgomery, in her order this week, described a bloody scene from the bodycam video as police dragged Pettaway outside to lie on the sidewalk and wait for an ambulance.

Judge Marks wrote that Pettaway was not resisting or making threatening movements when Barber released the dog to bite him.

“Here, Barber did not give an adequate warning with sufficient time for Pettaway to respond, and perhaps, surrender,” she wrote in the order.

[Read our series Mauled: When police dogs are weapons]

The Pettaway family’s lawyers first saw the sealed copies of the bodycam video two years after the fatal bite. While barred from sharing it, they described the footage in a court filing.

About five minutes after the bite ended, the filing says, another officer outside asked Barber, “Did ya’ get a bite?” Barber responded, “Sure did, heh, heh (chuckling).” The officer asked: “Are you serious?” Barber replied. “F**k yeah.”

Barber testified in a deposition that he had to choke the dog until it could not breathe and was nearly unconscious in order to get Niko to let go of Pettaway’s groin.

While the judge kept the lawsuit moving forward on an excessive force claim against Barber, she dismissed claims against the city, its former police chief and other officers. Barber no longer works for the Montgomery Police Department.

Winston Sheehan, an attorney for the police and Montgomery, declined to comment for this article.

Chip Nix, an attorney for the Pettaway family, also declined to elaborate on the case, citing the upcoming civil trial slated to begin in March.

“We have an obligation to the court, to the bar and to our clients to try this case in the courtroom,” Nix told AL.com. “We are diligently preparing and intently looking forward to doing just that.”

‘Closed records act’

In Alabama, police are not required by law to release bodycams or dashboard camera videos to the public.

Just two years ago, the state Supreme Court settled the debate on whether the videos are public records. In an 8-1 decision in 2021, the court ruled that videos, recordings of 911 calls, photos, autopsy records, emails and texts are considered investigative materials and therefore exempt from disclosure under the Open Records Act.

Tom Parker, the chief justice of the Alabama Supreme Court, was the lone dissent. He wrote that the ruling “shrinks the right of the people of Alabama to the vanishing point.

“After today, as to law-enforcement agencies at least, the statute might as well be titled the Closed Records Act,” Parker wrote.

[Read more: Alabama police already shielded bodycams. Now they know they don’t have to show the public.]

That decision came after Lagniappe, a weekly newspaper based in Mobile, sued the sheriff of Baldwin County for videos and other records of a deputy shooting and killing a man in 2017.

But even before that ruling, police rarely, and almost never quickly nor completely, released bodycam videos, not even in the most controversial cases.

‘It’s like they don’t exist’

In the rare instance that police release bodycam footage in Alabama, the video is often edited or shows only snippets of what happened and tends to involve cases in which the video might help clear officers in the public view.

“It brings a distrust in the police department by the citizens because they are releasing only the portion they want you to see,” said Bernard Simelton, the president of the Alabama NAACP. “If they release the entire video, we’re smart enough that we can look at the video and tell if the person is resisting, if the person went for the police officer’s gun, if he had his hands behind his back.”

In 2020, after surveillance video showing a Decatur officer punch a liquor store owner in the face circulated on social media, police called a press conference and showed news reporters an edited clip of bodycam footage.

Sometimes it takes massive public protest, and even then Alabama is often slow to make public video records.

After clearing an officer of criminal charges in the 2018 fatal shooting of E.J. Bradford at the Riverchase Galleria south of Birmingham in Hoover, a case that led to repeated protests through the mall and throughout the city streets, the Alabama Attorney General’s Office released surveillance footage of the Thanksgiving night scene. It took two and a half months.

And it took pressure from some of the same people who fought for the video to be released in Memphis. Ben Crump, a national civil rights attorney, took the case in Hoover and pressured Alabama to release the mall footage, saying, “If you want us to believe you are handling this case appropriately, then you need to release the video.”

Crump also represents the Nichols family in Memphis, where the city agreed under pressure to release the video.

“What I want to do is leave people to see the video for themselves and they have to determine, if this was them or one of their loved ones, how would they characterize it,” Crump told FOX 13 News in Memphis.

At other times, courts have had to step in for the public to see bodycams in Alabama.

In 2021, a judge, overriding a last-ditch fight from Huntsville city, allowed the public finally to see a shooting of a suicidal man that led to murder charges against the officer and divided local officials for years.

Huntsville initially assured the public the officer acted within policy. The city council voted to spend taxpayer money on the officer’s criminal defense without watching the video. The mayor and police chief even took issue with the district attorney for bringing charges and then the jury for its guilty verdict.

In the end, that officer, William Ben Darby, was sentenced to 25 years in prison for killing Jeff Parker. And only after that conviction, more than three years after the shooting, did the public finally see the footage.

Martin Weinberg, a civil rights attorney, represents the Parker family. He said that even in cases where the police did not violate the law, there are still lessons to be learned from such footage. He said that in cases of alleged use of force, initial reports by police often conflict with what the evidence eventually shows.

“In order to do anything about grave injustices, we have to see it,” said Weinberg. “It’s like they don’t exist if you don’t see it.”

‘A better response’ in Memphis

Nix, who represents the Pettaway family, did comment on the more general difficulties in obtaining bodycam video in Alabama. He said that videos like those showing the beating of Nichols in Memphis, demonstrate that police abuse of power happens “all too frequently.”

Nix said that “the most effective deterrent to police abuse of power is sunshine. In other words, the images of these events should be quickly released to the people who can really make a difference — the public.”

Video released in Memphis showed five officers brutally beat 29-year-old Nichols as he called out for his mother. Like Pettaway in Montgomery, Nichols, a Black man, died at a hospital after suffering severe injuries. In an interview in 2020, Pettaway’s mother told AL.com that police would not tell her what happened to her son and she could not find any information until the next day. The family wouldn’t see the video for two years, and even then, under the condition that they not share it with the public.

In Memphis, the public saw the Nichols video less than a month after Nichols died and just one day after the five officers were charged with murder. Despite concerns from city officials that releasing the video could lead to civil unrest, protests in Memphis did not lead to riots.

A day after releasing the video, the Memphis police chief announced reforms, including disbanding the unit where the officers worked.

Weinberg, the civil rights attorney, said the way Memphis responded to the Nichols case — quickly releasing video, firing the officers and enacting reform — may have tamped down the public response to the horrific video.

“I don’t want to totally say they did everything right, but it’s a better response than we’ve gotten in most of these situations,” he told AL.com.

He said it’s “ludicrous” to argue for hiding evidence of police violence by arguing it could prompt a violent reaction by the public.

“It’s unAmerican to say we have to control for things that might happen,” said Weinberg. “There’s no valid reason to hold something back because of what the public reaction might be.”

Nix said that when the police conduct is in question it’s important to quickly get the video and other information to the public.

“Reform needs to take place, not five years after the event, but quickly,” he said.

Chavez said that delaying the release of videos until years after an instance of police misconduct “undermines accountability.”

“After that long, if there was misconduct, that officer could be long gone in another department,” he said. “And, if there’s policies that need to be changed, you’re potentially talking about working under ineffective or dangerous policies for years before anyone addresses it. It’s bad for citizens, but it’s also bad for police.”

In the Pettaway case in Montgomery, police initially said simply that a burglary suspect died at the hospital after a K-9 “apprehended” him inside the Cresta Circle home. Barber continued to work in the K-9 Unit and did not face discipline over the deadly encounter.

But just last week, more than four years after the fatal bite, the public got its first clear indication that a judge believes something went wrong in that home.

“A reasonable officer would not need prior case law to know that sending an off-leash canine into a surrounded home before adequately communicating with a solitary suspect or providing that suspect an opportunity to respond, in violation of department policy, constitutes excessive force,” Judge Marks wrote last week, while allowing the family’s suit to go forward against the former K9 handler.

Chavez said that police often push back against releasing videos because they argue that the public won’t see the footage with the full context of the situation. Lawyers for Montgomery made that argument in their fight to keep the Pettaway video under seal.

“Viewing Officer Barber’s body camera footage out of context and with no further explanation would lead the jury (and public as a whole) to arrive at a conclusion based solely on emotion,” the lawyers wrote in court records in 2020. “The jury would be influenced by the depiction of events that suits Plaintiff’s narrative. Not to mention the potential of creating and/or facilitating civil unrest based on the graphic images alone.”

Chavez said he welcomes and encourages police to provide any and all context to the public when viewing a case of alleged misconduct.

“There’s nothing that would stop the public from being able to assess the situation with all those additional details,” he told AL.com.

“But I don’t think it’s outside the ability of the public to be able to understand what’s happening in these police incidents. You can see in videos like the one out of Memphis that what’s happened is clearly wrong. I don’t see why other videos would be any more confusing for the public to understand.”