Wednesday, May 18, 2016

Appellate Court Wants to See EPD Video, Sets Oral Argument Date

Posted By on Wed, May 18, 2016 at 10:34 AM

click to enlarge The dash camera in a Eureka Police Department patrol car. - THADEUS GREENSON
  • Thadeus Greenson
  • The dash camera in a Eureka Police Department patrol car.
Justices in California’s First Appellate District have decided they want to look at the police dash camera video Eureka is trying to keep the public from seeing.

In an unusual order, the justices asked the Humboldt County Superior Court file a copy of the video under seal with the appellate court. But the superior court responded saying it doesn’t have a copy of the video in question and the appellate court is now trying to obtain a copy from the city of Eureka.

The court’s order does not specify why the justices want to see the video, which depicts the Eureka Police Department’s Dec. 6, 2012 arrest of a juvenile suspect, an arrest that ultimately led to assault allegations against one of the officers, former Sgt. Adam Laird. (The charges were later dismissed and a claim Laird brought against the city was settled out of court.)

The city is appealing Humboldt County Superior Court Judge Christopher Wilson’s ruling in May of 2015 that granted a Journal petition seeking to have the video released to the public. While Wilson found the video’s release would be in the public interest, the city is arguing that he erred by not affording the video the legal protections state laws grant to police officer personnel records.

In its appeal, the city argues that the Journal used the processes of petitioning the juvenile court to release the video as a way of circumventing these legal protections for police officer personnel records. Known as the Pitchess statutes, California Penal Code 832.7 and Evidence Code Sections 1043 and 1046 outline a strict procedure for parties seeking to access officers’ personnel records.

“… The city’s argument is that since Pitchess law applies and Pitchess procedures were not complied with, the (video) should never have even been reviewed in chambers by the Trial Court,” the city argues in its brief.

Virtually from the outset of the case, the Journal has argued that the video in question is not a police officer personnel record, as it existed independently and prior to any personnel action against the officer. In his brief to the court, Paul Nicholas Boylan, the Journal’s attorney, also points out that while the city has repeatedly maintained that the video is a confidential police record, it has presented the court with no evidence that is actually a part of any officer’s file.

Further, the Journal has argued, the video was captured on taxpayer-purchased equipment attached to a taxpayer-purchased patrol car and depicts what anyone standing on California Street shortly before midnight that day would have seen: officers carrying out the duties the public has entrusted them with.

The justices’ request to see the video is a bit unexpected, as none of the arguments filed before the court to this point actually address the video’s contents. Boylan did argue in his brief submitted to the court that the city erred by not providing the appellate court with a copy of the video, leaving it with an incomplete record of what led to Wilson’s ruling. But the court is seemingly attempting to do what the city deemed an abuse of discretion by Wilson, which is watch the video without first going through the procedures laid out in Pitchess for accessing a police officer’s personnel file.

The court has set oral arguments in the case for June 23, and justices will have 90 days to decide the case once it is fully submitted to them.

For more on police dash camera videos and the laws governing them, read "Exempt from Disclosure," The Journal's Aug. 6, 2015 cover story. A full report on the city's opening brief can be found here, a report on the Journal's response can be found here and a report on the city's final reply brief can be found here. And those who enjoy poring over court filings can read the briefs themselves in the PDFs below.

City_s_Opening_Brief.pdf
Journal_s_Response_Brief.pdf
City_s_Reply_Brief.pdf

Editor's note: In the interest of full disclosure, it should be noted that this reporter personally filed the petition seeking disclosure of the dash cam video in this case and authored the lower court filings on behalf of the Journal. 
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