A Small Win for Transparency 

The Journal got somewhat of a win last week, when an appellate court upheld a Humboldt County judge's order to release a Eureka police video depicting the arrest of a 14-year-old boy in 2012.

To be clear, the court's published opinion is a big deal, as it now creates case law that unambiguously says these types of police videos — this one was captured on a dash-mounted in-car camera, but the opinion extends to body camera footage as well — can't be considered confidential personnel records. The 12-page opinion flatly rejects the city of Eureka's argument that because one of the officers involved in the arrest was accused of excessive force, spawning an internal affairs investigation and disciplinary proceedings, the video itself could be swept into his personnel file and shielded from public view.

Paul Nicholas Boylan, a Davis attorney representing the Journal in the appeal, said this precedent-setting opinion will reverberate throughout the state, noting that more and more city attorneys, police departments and prosecutors have tried to extend the legal protections granted police officer personnel records beyond their intended bounds.

This is all good news, in our view. We're relieved the appellate court saw the issue as we did: A video taken on taxpayer-purchased equipment capturing police officers carrying out their publicly entrusted duties in a public space can't be retroactively deemed confidential because someone accuses one of the involved officers of having done something wrong.

But this victory is in many ways more bitter than sweet. It's now been almost two years since we initially requested the video from the city of Eureka, and 14 months have now passed since Humboldt County Superior Court Judge Christopher Wilson granted our petition and ordered it released. Former EPD Sgt. Adam Laird — the officer charged with assault stemming from the arrest, only to have the case dismissed by prosecutors after a handful of police experts opined that he'd acted appropriately — has long since retired from the department, a separation that came as a part of the settlement of a claim he brought against the city because of its handling of the case. He is now in the midst of a second career as a private defense investigator. The Eureka Police Department is under new leadership, making whatever the video may or may not tell us about Laird's claim that he was somehow set up for prosecution due to his political views somewhat moot.

And, over the last year and a half, we at the Journal have poured lots of time and energy into pursuing this video, time that certainly could have gone toward reporting other stories in Humboldt County that are in desperate need of some public attention. Plainly, it shouldn't be this hard.

So, you'll have to pardon us if this all feels like a bit of a waste. Yes, we are happy and relieved that the court has ordered this video released, but what's wrong with our public agencies and the laws governing them that it took us so long to get to this point?

The answer is complicated. The California Public Records Act was authored decades ago and doesn't directly address video records in the digital age, meaning there isn't a clear roadmap for the public, the press or the government agencies that serve them. But more troubling is the bunker mentality that seems to pervade some governments, including the city of Eureka. It is crucial to note here that there isn't — and has never been — anything legally prohibiting Eureka from releasing this video. When the city denied a Journal records request for the video two years ago, it cited a pair of discretionary exemptions protecting investigative and personnel records, meaning the city was simply choosing not to release the video.

In a press release sent out after last week's ruling, the city said it's "evaluating its options" as to how to proceed. This is troubling, too.

In the press release, the city states that this case was never about transparency but "about ensuring the protection of police officer personnel records," rights guaranteed to officers by the California Constitution. Well, the city now has four judges — Wilson and a trio of appellate justices — saying that those constitutional rights are in no way imperiled by the release of this video.

Still, the city says it needs to weigh options. In reality, it has only two: petition the supreme court to review the case or follow Wilson's order and turn over the video.

The city has already racked up some expenses and dumped an untold number of limited staff hours into fighting release of this video (we've submitted a records request for a full accounting and will report what we find) and the city's fruitless appeal means it is now liable to pay the Journal's legal costs. Petitioning the supreme court opens the door to more expense.

Boylan said taking the case any further would be a foolish move. "The city's procedural errors in the appeal make a reversal of the appellate decision so unlikely as to approach impossible," he said. "It would be the longest of long shots, a rash gamble paid for with public money ... on something that never should have been appealed in the first place."

For the record, the Journal will continue to fight for the public's right to see this video because it's what's right. The public should be able to use the tools it paid for to evaluate the conduct of its officers, prosecutors and officials. And there's never been more wind in the sails of this argument than right now.

The day the appellate court issued its ruling, protests erupted in Baltimore with news that one of the officers accused of killing Freddie Gray had been acquitted of manslaughter charges and Baton Rouge police officials explained how a former U.S. Marine killed three police officers there in a planned attack. There is a crisis playing out in the nation, punctuated alternately by questionable officer involved deaths and horrific attacks on the police. Running underneath it all are a racial divide and current of distrust that — earned or not — have charged the conversation to polar extremes.

We believe transparency is the only answer: Show not only this video, but all use-of-force videos; let the public see how these events unfold in real time; give them an appreciation for what their officers face day in, day out; and allow community members to see use of force incidents so they can have informed conversations about tactics and training. We need to demystify these interactions between police and their communities, neutering the parallel distortions that officers are either infallible or blood-thirsty thugs.

In the press release issued in the wake of the court's ruling, the city of Eureka trumpeted its commitment to transparency, noting its investment in both dash and body worn camera technologies and stating its zero-tolerance approach to reports of police abuse or prejudice.

But transparency is much bigger than that, more a matter of philosophy than technology, more culture than policy. True transparency means trusting community members to hold an adult conversation and giving them the tools to facilitate it. It means swallowing hard and pushing liability concerns aside in order to lift the veil from difficult realities. It means being willing to admit mistakes and make amends.

And, sometimes, it means simply being willing to roll the tape and let the cards fall where they may.

For a full report on the appellate court's ruling, or to read the opinion itself, visit northcoastjournal.com.