Romando Dixson

rdixson@citizen-times.com

ASHEVILLE – City Council members were divided Wednesday on whether they believe police violated Asheville's own civil liberties protections in recording and keeping video of a Mountain Moral Monday rally attended by up to 5,000 people.

Councilmen Chris Pelly and Cecil Bothwell said police violated the city's civil liberties resolution, which council passed last year. The resolution in part forbids city employees from collecting and keeping information on people and organizations based on political, religious or social views.

Bothwell during a council meeting Tuesday night said he was "appalled" by police recording video of the Mountain Moral Monday rally held downtown in August.

Asheville police for years have recorded video of rallies ranging from tea party protests to gun rights demonstrations. The Police Department has a file cabinet of events dating back 10 years but does not have a retention plan for the records, which is generally required by the state.

City officials have given conflicting explanations for the practice, from saying the videos aid in training to saying they could be part of criminal investigations.

Council members took no action on the issue during their Tuesday night meeting, and in emails Wednesday they expressed differing views.

Council members Gwen Wisler and Jan Davis said police recording video of public rallies was not out of step with the city's civil liberties resolution.

"In that it has been policy for the Asheville Police Department to video record rallies, historically, for future logistic or training purposes and for use should incidents occur, I am supportive of the practice and do not feel it violates the resolution," Davis said.

Wisler said there is no expectation of privacy in public and she believes police did not record the Mountain Moral Monday event for only political reasons. The event targeted policies enacted by the Republican-controlled state General Assembly.

Mayor Esther Manheimer said she thought the civil liberties resolution was intended to make Asheville immigrant friendly and wasn't sure whether it would be relevant to the video recordings for that reason.

Council member Gordon Smith did not say in an emailed response whether he believed the police recording violated the city's civil liberties resolution. Councilman Marc Hunt did not respond to an email and phone message Wednesday.

City Manager Gary Jackson said during the Tuesday meeting that he would work with the city attorney's office to make a recommendation to police.

The city is developing a policy for keeping police video recordings and destroying them when they are no longer useful, city spokeswoman Dawa Hitch said. The policy the city develops for rally videos would set out a retention schedule that would meet state requirements.

The city has denied that police target political events for recordings. The city also would not allow the Citizen-Times to view the Mountain Moral Monday rally video, citing part of open records law that allows police to withhold information considered criminal intelligence or part of a criminal investigation.

Bothwell said he wanted to see the practice stopped.

"And I am certainly, in the interim, going to find a way to have a definite process for destroying tapes if there is no criminal behavior," he said. "I see no excuse whatsoever for saying that there's going to be some kind of training benefit from a peaceful gathering."

Bothwell said, to his knowledge, police do not record events such as Shindig on the Green and Moogfest, or when people play at Splashville. Political gatherings appear to be the focus of the police recordings, he said.

In their words

The Citizen-Times polled Asheville City Council members on their thoughts on the Police Department's recording video of Mountain Moral Monday in August, whether that violated the city's civil liberties resolution and whether police recordings of public events should be available for public inspection.

Chris Pelly: I believe the APD's video recording of the Mountain Moral Monday rally did violate both the letter and spirit of the (city's) civil liberties resolution, under section 4. Unless the APD can produce a compelling reason for taping a legal public rally, which I have yet to hear, I will be urging city staff to end this practice. We are researching requirements under state law for archiving materials such as this rally videotape. Unless state law prevents its release, I would support making it available to the public.

Gwen Wisler: "I am not troubled by recording public meetings. When people are gathering in a public place, they should have an expectation that they can be videotaped/recorded. That being said, I would like to see the APD clarify its policies. Also all city departments should have retention policies. The APD is working on that. The civil liberties resolution says no recording solely for political, etc. reasons. Nothing I've heard says the APD recorded Moral Monday only for political reasons — although I haven't specifically asked, I imagine the APD recorded it due to the size of the gathering. As to public record, this is an area that is highly technical and I am not in a position to second guess the city's legal counsel."

Jan Davis: "In that it has been policy for the Asheville Police Department to video record rallies, historically, for future logistic or training purposes and for use should incidents occur, I am supportive of the practice and do not feel it violates the resolution. Making the videos available for public inspection does make it a violation. I feel there is a need for clear policy on how the videos are stored and length of time they are kept. There has been unanimous council support for equipping our officers with on-body cameras and vehicle cameras which raises the same issues."

Cecil Bothwell: "I am personally appalled that the city police department is not following the resolution we approved."

Esther Manheimer: "I attended Mountain Moral Monday and observed the APD videotaping the event. All citizens deserve to be treated fairly and with respect and it's understandable that some folks feel uncomfortable under these circumstances. As for the civil liberties resolution, it was my understanding that the civil liberties resolution was aimed at positioning Asheville as an immigrant-friendly city. I don't know that it's relevant to this situation, but, even without the resolution, the city's treatment of its citizens must continue to be fair and respectful. The question of whether the tape should be released is a legal one and I defer to the legal department to resolve that issue."

Gordon Smith: "I don't feel that I'm yet up-to-speed on how the APD is aligning policy development with the (civil liberties resolution). I've asked the manager to research and report back to council."

Marc Hunt: "As you can see from the responses from other members, there can be different takes on all this, and there is a need for additional information. You saw in our session that the city manager has committed to bringing more information and his response or plan to us, and I will wait for that before drawing conclusions. I am generally a strong supporter of first amendment and privacy rights. I also want to allow the city manager, who reports directly to council, to craft a thorough response before council would try to micromanage the police chief, who does not report directly to council. I think the city manager understands that council is keenly interested in this. I am not interested in getting ahead of that process, and hope the press and the public will find patience in the meantime."