The video shows a routine traffic stop by state police that turned into a frantic gun battle along Route 33. Its publication represents a rare instance in Pennsylvania in which police dash camera video was made public.
Northampton County prosecutors released it to The Morning Call and other media on Thursday, six weeks after they used it to win Daniel K. Clary’s conviction for the attempted murder Nov. 7, 2017, of two law enforcement officers.
The video was recorded from the cruiser of Trooper Ryan Seiple, who pulled Clary over for speeding last year in Plainfield Township.
It captured the entire encounter between Clary and police, including the moments in which he opened fire, grievously wounding Cpl. Seth Kelly, who nearly died from gunshot wounds that included a severed femoral artery.
The video was released after The Morning Call sued to get a copy of it because prosecutors initially declined to make it public, though it was introduced as evidence at Clary’s trial. In a motion July 27, attorneys for the newspaper asked Judge Stephen Baratta to order its release, noting it had been played in open court.
“The Morning Call sought access to the dashcam video because the attempted homicide of two state troopers and Clary’s allegation that the troopers used excessive force are of great concern to the public in the current environment,” said Theresa Rang, the newspaper’s interim editor.
Joshua Bonn, a lawyer for The Morning Call, wrote in the suit that given “the public’s overwhelming right to access judicial records,” there was no compelling reason to withhold the video.
The dispute over the video’s release never saw a courtroom. A day before a hearing was scheduled before Baratta, the district attorney’s office reversed course and agreed to provide the recording to The Morning Call.
First Deputy District Attorney Terence Houck said Thursday he always wanted the video to be released to the public, but needed to make sure Kelly and Seiple agreed.
“Our concerns have always been the victims, the state troopers in this matter, protecting them,” Houck said. “But after speaking with them, they wanted it released, as did I.”
Across the nation, police dash camera and body camera videos have sparked debate over policing practices and the use of force by officers. In Pennsylvania, they rarely enter the public domain, given laws that limit the public’s right to access them.
That was the case in the July 28 fatal shooting of Joseph Santos, an unarmed Latino man, by a South Whitehall Township policeman. In announcing voluntary manslaughter charges against officer Jonathan Roselle on Tuesday, Lehigh County District Attorney Jim Martin said the encounter was captured on dash camera and body camera video that he declined to release.
“Although I would prefer to show the videos to the media and to the public today, they are now evidence in a criminal case; and I am ethically bound not to show them outside of court,” Martin said in prepared statements. “They will be introduced as evidence in the case and you will have the opportunity to see and report on their content as the case progresses.”
Last year, the state Supreme Court opened the door for some police videos to be accessible under the state’s Right-to-Know law, finding that in some circumstances, they were public records. But just eight days later, the Legislature approved a bill that changed those rules.
Under Act 22, police audio and video are no longer subject to the Right-to-Know law and its presumption of access. The act established new restrictions on their release: a request for a recording must be made within 60 days of its production, and police are granted even wider latitude to deny requests for recordings they deem to be part of an investigation.
Under the new language, authorities can keep recordings secret if they contain “potential evidence in a criminal matter” or “information pertaining to an investigation.”
The law was enacted over the objections of the Pennsylvania NewsMedia Association, a newspaper trade group. Melissa Melewsky, an attorney for association, said the broad rules create “numerous avenues” for authorities to deny access.
“It is basically unfettered discretion. It is very difficult to challenge,” Melewsky said. “That’s why you don’t see police audio and video in Pennsylvania, unless it is released voluntarily by law enforcement or the district attorney, or unless it is introduced as evidence.”
Supporters of Act 22 say police recordings are different from other government records, and raise legitimate safety and privacy concerns for the victims of crime and law enforcement.
“It is evidence,” said Aaron Zappia, a spokesman for state Sen. Stewart Greenleaf, R-Montgomery, who sponsored the law. “So when you make evidence totally available under the Right-to-Know law, it can be a little concerning. It can be dangerous.”
The Route 33 roadside shooting video was played repeatedly at Clary’s trial, which stretched four days in June and ended in his conviction. Evidence introduced in court has long been publicly accessible, under common law.
Prosecutors said the video depicted the two troopers acting professionally and with restraint during a speeding stop Nov. 7 that unexpectedly turned violent. Defense attorney Janet Jackson unsuccessfully argued self-defense, describing Clary as a scared young man who was getting his first speeding ticket, then was surprised when police moved to handcuff him.
The video showed Seiple hand Clary a ticket and begin to drive away, before the motorist motioned for him to come back. As he talked more with Clary, Seiple became suspicious of whether he was driving impaired, leading to field sobriety tests and Kelly’s arrival at the scene on the side of the highway.
It was when troopers tried to arrest Clary on suspicion of driving under the influence of marijuana that chaos erupted.
A melee between Clary and the troopers lasted one minute and six seconds. The gun battle that followed, just 41 seconds.
Before he ran to his car, grabbed a gun and opened fire, Clary and the troopers grappled on the ground, Clary trying to grab their service handguns and continuing to struggle even after he was repeatedly shocked with stun guns.
The video showed Clary grabbing the handle of Kelly’s holstered gun early in the struggle, before the troopers used their Tasers or punched him.
Clary tried to grab both troopers’ pistols, and succeeded in dislodging the ammunition magazine of Seiple’s. A spare firearm of Kelly’s fell to the ground at one point, which Seiple later picked up, disarmed and threw to the side.
Seiple used his Taser on Clary twice and punched him five times, according to trial testimony. Kelly tasered Clary five times, threw nine punches and kneed him once.
According to a state police expert who examined the video frame-by-frame, Clary and Seiple shot at each other simultaneously, as Clary pointed a handgun at police.
Clary fired all six of his gun’s bullets, Kelly fired 21 rounds and Seiple fired 20 rounds.
Clary, 22, of Chestnuthill Township, was wounded in the gunfight, driving himself to Easton Hospital with injuries that included a bullet lodged in his head.
Clary could face decades in prison when he is sentenced Aug. 31 by Baratta.