Here’s why Richmond prosecutors didn’t charge the police sergeant who broke state laws on Flock
By SAMUEL B. PARKER Richmond Times-Dispatch
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RICHMOND, Virginia (Richmond Times-Dispatch) — Earlier this year, a Richmond Police Department sergeant broke the law.
In an April 30 news release, police spokesperson James Mercante said the sergeant had been caught sharing images taken from one of the department’s 99 Flock cameras with the Federal Bureau of Investigation to assist in a murder investigation.
That’s despite the fact that state law forbids Virginia law enforcement from sharing automatic license plate reader (ALPR) data with out-of-state agencies.
Under that law, the prohibited disclosure of ALPR images or data is a Class 1 misdemeanor — punishable by up to a year behind bars and a fine of up to $2,500. But Richmond prosecutors, led by Commonwealth’s Attorney Colette McEachin, declined to charge the sergeant in connection with the incident.
Why?
In a statement to The Times-Dispatch, McEachin, who has been Richmond’s top prosecutor since 2019, said the decision not to file criminal charges was due to “a lack of criminal intent.”
“(That’s) the foundation for a criminal charge against an individual,” McEachin said. “Factors that would lead to a different decision would include evidence of criminal intent, or evidence that the dissemination was done for personal or pecuniary interest.”
Criminal intent is a legal doctrine that describes the mental state behind an act that renders the act criminal. In order to show criminal intent under Virginia’s ALPR law, prosecutors would have to show that the data disclosure was done “wilfully and intentionally,” and was not simply an accident or oversight.
Police, on the other hand, characterized the issue as more intentional.
Mercante, in the April news release, explained that the sergeant had been “asked by a special agent with the … FBI for an image of a vehicle believed to be connected to a homicide investigation in Washington D.C.,” and had complied with that request. Police Chief Rick Edwards, meanwhile, noted that he “appreciated the sergeant’s willingness to assist in a homicide investigation,” but stressed the importance of following the law.
Asked to clarify, McEachin explained that “an act can be purposeful without having criminal intent.”
For example, a person might “throw a ball” without meaning to “hit (or) hurt any specific person,” she said.
Criminal intent is distinct from ignorance of the law, which does not eliminate criminal liability. In order to show criminal intent, prosecutors must demonstrate only that the act itself was purposeful, regardless of whether the alleged perpetrator knew it was unlawful.
Across the country, prosecutors have taken different approaches to handling violations of state ALPR laws.
Officers in California, Florida, Georgia, Illinois, Kansas, Kentucky, North Carolina, Ohio, Pennsylvania, Tennessee, Texas and Wisconsin have been charged or indicted for unlawful use of ALPR technology, including in some cases to track or stalk family members, friends or past partners. In other cases, officers have been fired or resigned for misuse.
The Richmond police sergeant still works for the department.
“An internal investigation was conducted by RPD’s Office of Professional Standards,” Edwards said at the time. “The sergeant’s authorization to access ALPR data has been deactivated.”
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