Thursday, October 27, 2016

Supreme Court Denies Eureka's Request in Police Video Case

Posted By on Thu, Oct 27, 2016 at 10:59 AM

click to enlarge Since 2008, the Eureka Police Department has outfitted all of its patrol cars with Watch Guard cameras. Who gets to see the footage they collect remains up for debate. - PHOTO BY THADEUS GREENSON
  • photo by Thadeus Greenson
  • Since 2008, the Eureka Police Department has outfitted all of its patrol cars with Watch Guard cameras. Who gets to see the footage they collect remains up for debate.

The California Supreme Court has decided not to reconsider a recent appellate ruling establishing a statewide precedent that police arrest videos cannot be considered confidential officer personnel records and shielded from public view.

The court’s decision may put an end to a more than two-year battle between the city of Eureka and the North Coast Journal over public access to a video depicting the arrest of a 14-year-old suspect that led to criminal excessive force allegations against one of the involved officers. The decision also leaves the city liable for the Journal's legal costs and fees.

"I've been practicing appellate law for nearly 30 years," said Paul Nicholas Boylan, a Davis attorney representing the Journal in the case. "I've never encountered a case like this. All litigation begins with an attorney evaluating the costs and benefits of pursuing a claim. What are the costs of winning? What are the costs of losing? In this case, the risks and cost to the city of losing were always far, far higher than any benefits the city might achieve if it won. The city must have known that the longer it dragged this out, the more it forced the NCJ to litigate, the more it was going to cost taxpayers."

The city still has the option of asking the Supreme Court of the United States to take up the case. Attempts to reach City Manager Greg Sparks and City Attorney Cyndy Day-Wilson for comment on the state Supreme Court decision have been unsuccessful.

In July, the First District Court of Appeals rebuffed the city of Eureka’s attempts to block release of the video, ruling that the video — and others like it — could not be granted the special protections against disclosure afforded police officer personnel records. The appellate court published the ruling, meaning it would become case law and set a precedent throughout California.

The city wanted to keep that from happening, and asked the Supreme Court to depublish the July decision, which wouldn’t have impacted the court’s order that the specific video in question be released but would have kept the decision from guiding future court rulings. And in a rare move, on its own motion, the Supreme Court gave itself a couple of months to decide whether to take up a full review of the appellate case — a review that would venture beyond the publication question.

But the Supreme Court decided yesterday to deny the city’s request and leave the case as decided by the appellate court, which upheld a May 21, 2015, ruling by Humboldt County Superior Court Judge Christopher Wilson, who granted a petition filed by the North Coast Journal and ordered the arrest video released to the public.

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.
 Wilson’s ruling came some two and a half years after the 14-year-old suspect’s arrest on Dec. 6, 2012. The arrest caused a bit of a firestorm after one of the involved officers, Sgt. Adam Laird, was accused of using excessive force and was criminally charged with assault. In court, Laird argued that he acted reasonably but that his fellow officers essentially set him up and withheld evidence of his innocence from prosecutors because he was unpopular in the department for political reasons. Criminal charges against Laird were dismissed when prosecutors decided they couldn’t prove their case, and he ultimately retired from EPD after settling a claim he brought against the city alleging it had violated his rights through its handling of the case. He now works locally as a private investigator.

The juvenile's arrest, meanwhile, was captured on the dash-mounted video recording system in one of the responding EPD patrol cars. After criminal charges were dismissed, the Journal submitted a California Public Records Act request in August of 2014 asking for a copy of the video — a request the city denied, citing the discretionary exemptions for police investigative files and personnel records. In November of 2014, the Journal filed a petition in juvenile court under Welfare and Institutions Code 827, which carves out a process for members of the public to access juvenile court records, which are generally considered confidential.

In May of the following year, after reviewing the arrest video, Wilson granted the Journal’s request, finding the public interest in seeing the footage outweighed any privacy concerns and ordered the video released. The city then appealed, arguing that Wilson erred in his interpretation of the law and was allowing the Journal to circumvent state laws severely limiting access to confidential police officer personnel records — a series of statutes known collectively as Pitchess.

Boylan countered that the video simply wasn’t the kind of record that would be protected by Pitchess, as it captured public employees carrying out their publicly entrusted duties on a public street and was not something generated by an internal affairs investigation or a disciplinary proceeding.

The appellate court ultimately agreed with the Journal, finding that the video “is simply a visual record of the minor’s arrest” and can’t be considered a confidential police officer personnel record. The city’s argument to the contrary, the court stated in opinion, “would improperly sweep virtually all [police videos] into the protected category of personnel records.”

Day-Wilson.
  • Day-Wilson.
The appellate court opted to publish the opinion, meaning it would guide how other courts view police videos in the future. The city asked the Supreme Court to keep that from happening, arguing the appellate opinion would only muddy the waters, confusing judges and lawyers alike.

“The case may confuse the bench and the bar by creating the appearance the Welfare and Institutions Code section 827 sidesteps the protections of Pitchess,” Day-Wilson wrote in the city’s depublication request.

Four entities — the American Civil Liberties Union’s California affiliates, the California Newspaper Publisher’s Association, Arcata attorney and Humboldt Center for Constitutional Rights Executive Director Jeffrey Schwartz and Californians Aware — joined the Journal in opposing the city’s request and urging the Supreme Court to let the precedent-setting opinion stand.

The letters opposing the city’s request combine to argue that the appellate opinion was accurate and valuable, and that depublication would have broad impacts.

The California Supreme Court has now agreed, putting the ball back in the city’s court to decide if it wants to press the matter any further.

Back in August, we reported that the city had already spent at least $7,683 appealing Wilson’s ruling, in addition to an unknown amount of staff time poured into the matter. The appellate court’s opinion also allows Boylan to recoup his costs and fees from the city.

Days after the appellate ruling, Boylan sent Day-Wilson an email arguing that dropping the matter was in the public’s best interest.

“I am not posturing when I say that, should you appeal this further, you won't win,” Boylan wrote at the time. “Although anything is possible, a reversal of the appellate court’s opinion is extremely unlikely for a bunch of procedural and substantive reasons. Further appeal will do nothing but waste more public employee time and more taxpayer money. Further litigation will only drive up the fees and costs the city will inevitably be ordered to pay.”

Journal attempts to determine exactly who has made the decision to appeal Wilson’s original ruling and to subsequently take the case to the Supreme Court have been unsuccessful. The case has only been agendized once for closed session discussion with the city council, and it reported taking no final action. When contacted by the Journal, councilmembers Linda Atkins, Marian Brady and Kim Bergel declined to comment on the matter, as did Mayor Frank Jager. Councilmembers Natalie Arroyo and Melinda Ciarabellini never responded to Journal calls seeking comment, nor did Day-Wilson. Sparks, for his part, said Day-Wilson had instructed him not to respond to the inquiry because the case “is in pending litigation and could not be commented upon.”

Boylan said the city's handling of the case has been baffling.

"The city financed a long-shot bet with public money," he said. "It is an unfathomable mystery why the city chose to roll the dice on this when the odds were stacked so heavily in favor of losing. ... The city has the right to appeal this to the U.S. Supreme Court. But if this happens, I assure the city the Supreme Court will not accept this case for review and, in the end, it will serve no purpose other than to multiply the eventual costs to the taxpayers."

For more on the appellate case, including links to all legal briefs filed in the case, see past Journal coverage here, here and here.

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 briefings on behalf of the Journal.
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Thadeus Greenson

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Thadeus Greenson is the news editor of the North Coast Journal.

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