In a decision one justice called “the end of public access to law enforcement records that are connected in any way to an investigation,” the Alabama Supreme Court ruled against Lagniappe’s effort to use the state’s Open Records Act (ORA) to seek records related to the May 12, 2017 shooting of Jonathan Victor by a deputy of the Baldwin County Sheriff’s Office (BCSO).
The newspaper, which has since obtained and published some of those records through other means, filed suit against Sheriff Hoss Mack, Col. Anthony Lowery and Lt. Michael Gaull in 2019, after the BCSO denied the request, citing a state law which exempts certain “law enforcement investigative files.” The BCSO also argued the records were the property of the Baldwin County Major Crimes Unit, an interagency group of county law enforcement organizations that investigates officer-involved shootings.
Judge Scott Taylor ruled in favor of the BCSO and the appeal was heard by the Supreme Court in July 2020. In a decision handed down today, Associate Justice Greg Shaw wrote a majority decision hardening a state law which reads, “law enforcement investigative reports and related investigative material are not public records” and, “law enforcement investigative reports, records, field notes, witness statements, and other investigative writings or recordings are privileged communication protected from disclosure.”
Specifically, the court ruled the phrase “related investigative material” encompasses “any materials related to a particular investigation,” including “items of substantive evidence that existed before the investigation began, such as video recording or documentary evidence relevant to the crime being investigated.”
The incident in question unfolded after Victor, a 35-year-old Louisiana motorist, was involved in a single-vehicle accident on Interstate 10. Passersby and first responders reported that Victor was acting erratically, instructing responders to “go away” and “concealing … something in his hands.”
BCSO Cpl. Matt Hunady took control of the scene upon arrival by arming himself with his service rifle and taking a defensive position behind a fire truck. After shouting instructions at Victor for more than 10 minutes, Victor finally emerged, his hands wrapped in a cloth and clasped out in front of him.
As camera footage from the scene later revealed, Victor slowly approached Hunady but consistently ignored commands — including 33 times to “drop it” — before Hunady shot Victor four times from roughly 7 yards away. It was later determined VIctor was holding a fanny pack and his hands were wrapped in a jacket. He died from his wounds in a hospital.
In its decision, the Supreme Court determined “all materials requested by Lagniappe are related to the incident regarding Cpl. Hunady, which was the subject of a criminal investigation … There is no need for affidavits or other evidence to establish what the Sheriff possessed because all the records that were requested would be covered under [the law].”
Justices Bolin, Bryan, Sellers, Mendheim and Mitchell concurred.
Justice Sarah Stewart concurred in the result, but noted no parties in the case invoked a review of the material purported to be exempt under the ORA, so she is “unable to conclude whether or not the law enforcement investigation exemption to the ORA” applies in the case.
In a dissenting opinion, Chief Justice Tom Parker assailed the decision, calling it a “drastic change in this court’s investigative privilege jurisprudence.” His definition of the phrase “related investigative material” refers to material concerning “the carrying out of a systematic or formal inquiry into some event or situation.”
Narrowly construed, as the spirit of the law was written, Parker argues, it means “only records, created by law enforcement officers, that reflect their efforts in an investigation.” More specifically, “it does not include records that merely document an incident or records that are merely part of a process of observation and information collection.”
Parker goes on to outline how he believes the majority opinion erred, including an alleged attempt “to bring in public policy concerns through the back door” and sweeping “items of substantive evidence that existed before the investigation began” into “related investigative material.”
“Finally and most importantly, the main opinion openly ignores this court’s strong admonition … that the investigative privilege statute must be narrowly construed,” Parker wrote, urging readers to “ponder the scope of today’s decision.”
“The statute will now hide from the public eye ‘any material related to a particular investigation;’ all ‘items of substantive evidence that existed before the investigation began, such as video recordings or documentary evidence relevant to the crime;’ and ‘all materials related to an incident that was subject of a criminal investigation.”
Separately, the Major Crimes Unit determined Hunady’s actions were justified, and a Baldwin County grand jury later cleared him of criminal wrongdoing. But in a federal civil rights lawsuit filed by Victor’s mother, Hunady was stripped of qualified immunity and a judge determined he had ample time to defuse the situation and determine if Victor was actually armed.
Mack, along with representatives of the Major Crimes Unit, held a press conference when Hunady was cleared of wrongdoing and the case was closed. In that press conference, Mack showed assembled members of the media selected video from the shooting. Under the Supreme Court’s ruling, that would amount to Mack revealing certain “investigative materials” to the public, but withholding others that took place moments or minutes before.
“The court massively widens the definition of investigative materials in this case, to include video of the actual occurrence that sparked a subsequent investigation,” Lagniappe co-publisher Rob Holbert said. “We were fortunate in this case to have obtained all of the materials we sought when they became evidence in a federal civil suit filed by Jonathan Victor’s family, and they indeed revealed the troubling set of circumstances that ultimately led to Mr. Victor’s death. The public can’t count on that happening often. On the flipside, law enforcement can pick and choose clips of ‘investigative materials’ to skew public opinion of an incident, then hide behind this wrongheaded opinion to avoid public scrutiny. This ruling leaves it up to the police to police the police. If this is Alabama’s definition of open records, we’re in a world of hurt.”
Parker’s dissent concluded with much the same sentiment.
“The sweep of these pronouncements is breathtaking,” he wrote. “In essence, all evidence in the possession of law enforcement agencies, whether created by the agency or received from others, is now exempt from citizens’ statutory right to access public records … With one sweeping stroke, today’s decision spells the end of public access to law enforcement records that are connected in any way to an investigation. After today, as to law enforcement agencies at least, the statute might as well be titled the Closed Records Act.”
Lagniappe co-publisher Ashley Trice also expressed disappointment in the decision.
“While the statute was poorly written in the first place, the Alabama Supreme Court’s decision today will allow law enforcement in this state to operate in complete and total darkness and will give them the ability to classify any document that should 100 percent be open to the public as ‘investigative materials,’ therefore shielding them from any accountability whatsoever. This is certainly not the intent of the open records law and is a travesty for journalists covering this state, but more so for the citizens of Alabama, as this information belongs to them,” Trice said.
Trice said Lagniappe is considering its legal options in this matter.
Lagniappe vs. BCSO Supreme Court Decision
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