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Exempt from Disclosure 

Transparency, confidentiality and the police video Eureka doesn't want you to see

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The clip opens with the bright blue sky reflecting off the black hood of a Eureka Police Department patrol car as it pulls to a stop sign at G and Ninth streets. The vehicle idles a moment, its in-car dash camera rolling, catching a dispatch radio call telling all units to be on the lookout for a white male adult in a blue shirt who was last seen jumping a fence. The patrol car turns left on Ninth and rolls down the block toward the Downtowner Motel when a young man on a bike comes into the frame in the distance, jetting across Ninth and turning left onto E Street. The chase begins.

You can hear the engine rev as the patrol car speeds down Ninth Street, breezes through a stop sign, and makes the left on E Street in pursuit. As the biker zigzags through Eureka, the officer repeatedly pulls even to him, yelling out the window and imploring him to stop, speaking in a distinct European accent and warning the fleeing biker that he has a police dog in the back. "Stop the bike," the officer says. "We have a canine out here. Stop the bike. It's not worth it, bro. Don't do it." The biker, later identified as Anthony Manuel Burgess, ignores the officer's request and peddles frantically through the Eureka streets — disregarding several more of the officer's "it's-not-worth-it-bro" pleas until, about a minute later, he's clipped by a green sedan travelling north on Seventh Street and taken into custody, apparently having escaped serious injury.

This is the video the Eureka Police Department wanted you to see. After all, it was posted to the department's YouTube account on Jan. 27, just two days after Burgess' arrest and while his case was still pending. A couple days after the department posted the video — titled "It's not worth it bro" — Eureka City Attorney Cyndy Day Wilson appeared in Humboldt County Superior Court to protest the release of another dash camera video from a Eureka patrol car that prosecutors once alleged shows an EPD sergeant assaulting a 14-year-old boy.

That's the video Eureka doesn't want you to see. It's the video that Humboldt County Superior Court Judge Christopher Wilson ordered released on May 21 at the Journal's request. And it's the video that's now the subject of an appeal by the city, challenging Wilson's ruling and indefinitely delaying its release.

Shortly before midnight on Dec. 6, 2012, the Eureka Police Department received a report of a gang fight near Twenty-Thirty Park on Summer Street. The first responding officer found no gang fight but reported seeing a male and a female walking and noted the male — a 5-foot-6-inch, 130-pound 14-year-old — was carrying a golf club.

The juvenile — who later told police he was intoxicated at the time, having drank two caffeinated malt liquor beverages — fled when the officer tried to contact him, taking off running north and cutting through several backyards. EPD Sgt. Adam Laird arrived on scene as backup and joined the foot pursuit, following the running boy onto California Street. There, the juvenile stops abruptly when cornered by another officer but refuses orders to get on ground until he's pushed down by Laird, according to court documents.

Once on the ground, an officer went to the boy's head area and began working to handcuff him, reportedly telling him repeatedly to "stop resisting," according to court records. As this was happening, Laird ran up and, depending on which version of events you're inclined to believe, twice kicked, stomped or used his foot to shove the boy down toward the ground. The other officer then finished handcuffing the kid and put him into the back of a patrol car.

Months later, on April 17, 2013, the EPD and the Humboldt County District Attorney's Office held a joint press conference to announce that Laird had been arrested and charged with committing assault under the color of authority and filing a false report that failed to disclose that he'd used force during the teen's arrest. A video taken from the dash camera of Sgt. Rodrigo Reyna-Sanchez's responding patrol car captured the entire incident and quickly became the central piece of evidence in the case.

Ultimately, the video was enhanced and dissected, edited into a frame-by-frame sequence that could be analyzed. A total of five independent use-of-force experts looked at the video, and all concluded that Laird's use of force was "reasonable and justified" when faced with a noncompliant suspect.

For Eureka, the case got ugly in a hurry. Laird's defense argued in a series of court motions that his client was being unfairly singled out and targeted for prosecution due to his political views and his staunch support of a controversial former police chief, Garr Nielsen, under whom Laird was promoted quickly up the ranks of EPD. Patrik Griego, Laird's attorney, claimed that he couldn't find any record of EPD having previously pursued criminal charges stemming from a use of force complaint, and that such cases were handled internally by the department. Laird, Griego argued, was clearly being handled differently.

Additionally, Griego alleged that EPD withheld potentially exculpatory evidence from prosecutors when they were deciding whether to charge Laird criminally; things like witness statements, an expert's report and records that showed the juvenile was a member of a violent local gang that had recently threatened to ambush a Eureka cop.

Griego asked the court to order Eureka to compile and turn over a host of materials, including records of citizen complaints, internal affairs investigations and correspondence between EPD commanders and city officials. To buttress the request, Griego got the sworn declarations of then EPD Sgt. Mike Quigley and Nielsen. Quigley said he believed Laird was "being targeted" by his fellow officers and Nielsen said he was troubled to hear of Laird's arrest but not surprised given his belief that some officers "wouldn't hesitate to frame Laird for a crime in order to force him out of EPD." Humboldt County Superior Court Judge Marilyn Miles found the declarations and Griego's arguments compelling and ordered that the sought records be released to Laird's defense.

A couple of weeks later, on Jan. 3, 2014, prosecutors dropped the case, with Deputy District Attorney Roger Rees saying only: "Based on new evidence the people have discovered, we don't believe we can prove this case beyond a reasonable doubt."

At that point, the city had already been in the process of trying to fire Laird for months, having served him with a letter of intent to terminate his employment in October and given him a hearing before the police chief to respond to the allegations against him the following month. But the firing never came.

Ultimately, Laird retired from the Eureka Police Department on July 31, 2014. The retirement appears to have come as a part of the settlement of a claim Laird brought against the city alleging it had improperly turned his confidential personnel file over to prosecutors. While the particulars remain somewhat cloudy, the city gave Laird a lump-sum settlement of $40,000 and he receives about $39,000 annually in CalPERS payments. He worked as a police officer for 10 years.

The resolution of Laird's criminal case left no real clarity, just a host of allegations flying in all directions. The underlying facts were never vetted in front of a jury or a judge, and video footage of the incident was never introduced as evidence in the case nor made public.

In August of 2014, the Journal filed California Public Records Act requests with both the city of Eureka and the Humboldt County District Attorney's Office asking for documents from the case, including the video. Both requests were denied, with the city arguing that the video was exempt from disclosure because it's part of a police investigative file and because it was a piece of confidential personnel information.

The California Public Records Act — which was recently incorporated as a part of the state's constitution — essentially operates under the premise that all documents held by public agencies are inherently open to public disclosure, meaning they can be reviewed or copied by anyone who asks. "Access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in the state," the CPRA reads.

But the act contains a number of wide-reaching exemptions that give agencies the choice to withhold certain things from the public eye. Law enforcement agencies in the state are given enormous discretion in how they respond to records requests, as state law dictates they release the essentials — the who, what, when and where — of calls for service and arrests but little more. Just about everything else can be said to fall into the police investigative file exemption, which basically holds that police can refuse to make public anything that is or has been part of an investigation, whether it's one that's ongoing or one that closed 50 years ago. (It's interesting to note that Serial, the nation's most popular podcast, would never have been possible in California without the cooperation of a police agency, as it relied heavily on police notes and files released under Maryland public records law.)

When it comes to police video records, it appears no one has mounted a successful challenge to a California police agency's refusing to make them public under the CPRA. Consequently, the premise that footage taken from a patrol car or a body camera can be considered either a confidential personnel record or a document of an investigation stands. Peter Scheer, executive director of the First Amendment Coalition, said he's not aware of any judicial decisions weighing in on the fundamental question of whether video footage taken in the regular course of police duties can be considered to exist independently of a criminal or internal affairs investigation.

But Scheer said police agencies throughout the state regularly use the exemptions to deny requests for video footage. That certainly holds true locally.

Last year, after learning California State University system had settled the brutality claim a Fieldbrook man brought against a Humboldt State University police officer for $135,000, the Journal attempted to get video of what was described in court documents as a "brutal" assault. After all, Casey Arndt's Jan. 7, 2012 arrest had been caught on the dash camera of an Arcata Police Department patrol car that responded to provide backup. The city of Arcata denied the Journal's records request, citing the investigative file exemption, though it's unclear what, if any, investigation APD did into the incident, which was handled by UPD. (Arndt was booked into jail on suspicion of resisting arrest after the incident, but was never charged with a crime.)

Scheer said the current state of the law leaves agencies throughout California treating video footage in different ways, with some categorically denying requests and refusing to release anything, some releasing almost any footage requested and others simply releasing footage they find favorable and keeping anything that might look bad for the department under wraps. "You just see different outcomes in different places," Scheer said. "Unfortunately, it seems to me the police have the better argument under the CPRA. That's not the end of the matter, however, because the Legislature can and probably should change that. ... Everybody would be much better off if there were clear standards and everybody would have to abide by those standards. Then, when there was a deviation, the police would have to explain why. Right now, it's a totally discretionary matter without any standards at all for 100 different police departments. That's chaos."

Ironically, in looking for another way to get the video in Laird's case, the Journal turned to an area of legal record that's even more tightly guarded than that of police files: the juvenile court. Because the overriding presumption in all juvenile proceedings is that case files in their entirety are strictly confidential, the Legislature carved out a process in which judges can grant exceptions to that rule. Under California Welfare and Institutions Code, Section 827 provides that anyone can petition a juvenile court to release records in a case and that, in considering such a request, a judge must balance the interests of the juvenile, of the person petitioning release and of the general public.

Because the juvenile in Laird's case was arrested and a delinquency petition was initiated against him, the Journal believed the arrest video might be a part of his juvenile case file. After learning through his attorney that the juvenile and his father wouldn't oppose release of the video, the Journal filed a petitioned with the court, arguing that release of the video was warranted because the public has a "right to evaluate the conduct of its officers and prosecutors, with whom it has placed its trust and power."

Both the city of Eureka and the county of Humboldt, appearing on behalf of the probation department, objected to the petition. The county argued that — despite the juvenile and his father not opposing release of the video — making the video public would be contrary to the minor's best interests. Meanwhile, the city argued that the video qualified as a "confidential police officer personnel record" because it was part of an internal affairs investigation and thus warranted special protections and privilege. The Journal had no interest in the juvenile's case, the city argued, and was simply using the juvenile court system to circumvent the CPRA.

In response, the Journal argued that the juvenile and his father can reasonably be expected to know what's in their best interest and that the city's claim of confidentiality was baseless. "The records sought are not the conclusions of an internal affairs investigation, a written reprimand by a supervisor or a history of complaints," the Journal wrote. "Rather, they are video recordings of a publicly employed police officer carrying out the duties entrusted him by the public on a public street captured with tax-payer purchased video equipment attached to a tax-payer purchased patrol car."

Ultimately, in his May 21 ruling, Judge Wilson stated that he'd considered all arguments and felt the balancing test tipped in favor of releasing the video. Subject to a protective order that would black out the juvenile's face and redact any reference to his name, Wilson ordered the video released.

After unsuccessfully petitioning the appellate court for extraordinary emergency relief, arguing Wilson's ruling was "an abuse of discretion and contrary to the law," the city officially appealed Wilson's ruling last month. That appeal is pending, with opening briefs expected to be filed in the coming months.

Southern California
newspapers were dominated last month with headlines that a federal court had ordered the city of Gardena to release a dash camera video of an officer-involved shooting that left a man dead after police opened fire on three unarmed men, one of whom didn't comply with orders to keep his hands up.

The estate of the dead man had sued the city in the wake of the 2013 shooting in federal court, and ultimately settled for $4.7 million. Video of the shooting had been submitted to the court under seal, and the city reached the settlement with the understanding that the video would remain confidential. But media outlets — including the Associated Press and the Los Angeles Times — petitioned the court to release the video, arguing the public had a right to see the video and understand how its tax dollars were being spent.

The city of Gardena opposed the request, arguing, in part, that release of the video would pose a threat to public safety. In a recent panel discussion hosted by the California First Amendment Coalition, the city's attorney, Mildred K. O'Linn, elaborated. "The public's reaction ... which is controlled by mass media, has the potential to set your cities on fire, to destroy your business," O'Linn said, making references to Ferguson and Baltimore. Speaking generally about the widespread release of such videos, O'Linn voiced other concerns.

"My officers do not deserve to be hung and judged in the media without full information," she said, adding that there are privacy concerns for the general public as well. "Technology is way ahead of the law and when you dial 911 and you're having a bad day and you're sitting at home and you expect police officers to come to your home and help you, if things continue in the fashion they are, you are going to be a YouTube video. ... Where do we stop? Police work is 24/7. How many incidents would you like us to explain and post?"

Illustrating how much is at stake in this discussion, the Gardena case saw amicus briefs — those filed by parties not involved in the immediate case but with a stake in its outcome — filed by the California State Sheriff's Association, the California Police Chiefs' Association and the California Police Officers' Association, as well as the ACLU. Groups on all sides of the debate are clearly hyper-aware that a case has the potential to set a precedent dictating how these videos are handled moving forward.

Scheer said he wishes police agencies would take it upon themselves to be more proactive in releasing these types of videos, especially those depicting critical incidents like officer-involved shootings. When the video is kept under shroud, Scheer said the public conversation is often distilled to its most basic level, with police departments insisting their officers acted appropriately and others insisting they were rogue and vicious. The reality of these incidents, Scheer said, is often much more complicated and ambiguous, with imperfect people shouldering the burden of dealing with dynamic, dangerous and complicated situations. Showing that, Scheer said, would foster a healthier and more productive public dialogue.

Greg Woods, who teaches criminal justice studies at San Francisco State University, said the whole conversation surrounding police videos gets really complicated, with a range of concerns and interests to be considered. But he also said society is progressing rapidly, moving in a direction where some of those are quickly becoming irrelevant.

Woods said he was recently riding a crowded commuter train in the bay area when an argument broke out over a vacant seat. Within moments, Woods said about 20 people had looked up from their hand-held electronic devices, trained them on the argument and begun filming. "It's interesting," he said, adding that he's also read about people installing small video recording devices in their cars — like private dash cameras — to make sure if they have an interaction with police, it gets recorded. "It's an effort to kind of level the playing field, kind of like the old west where the sheriff has a gun because the bad guy has a gun because the rancher has a gun. There's an ability to level the playing field, and people are saying, 'Let me immortalize this just to make sure you get it right."

This all leaves us in Humboldt to ask: Did Adam Laird get it right? Did the Eureka Police Department? How about the Humboldt County District Attorney's Office? We don't know because the only entity that was on California Street with a camera shortly before midnight on Dec. 6, 2012 has so far refused to show us what happened.

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About The Author

Thadeus Greenson

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

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