Presiding Circuit Judge Scott Taylor has dismissed a lawsuit Lagniappe filed against the Baldwin County Sheriff’s Office (BCSO) earlier this year seeking records from a 2017 officer-involved shooting that proved fatal.
The lawsuit was filed in Baldwin County Circuit Court in February after BCSO denied an Open Records request related to the death of Jonathan Victor. A Louisiana resident, Victor was fatally shot by BCSO Deputy Sgt. Matt Hunady on May 12, 2017, following a single-vehicle accident along Interstate 10.
Among other things, the records request sought “dash cam, body cam and third-party video; the audio from any 911 calls or radio communications; photographs from the scene; autopsy records; and communications” pertaining to the shooting.
As is the case with all officer-involved shootings, Victor’s death was investigated by the Baldwin County Major Crimes Unit — a separate entity made up of representatives from several agencies in the area, including the BCSO. The distinction between the two agencies appears to have been a big factor the lawsuit’s dismissal.
In July, BCSO’s attorney, Fred L. Clements Jr., filed a motion for summary judgement based on where Lagniappe submitted its request for the records. He argued that, because the investigation was conducted by the Major Crimes Unit, no investigative files existed at the Baldwin County Sheriff’s Office.
“This fact should come as no surprise to Lagniappe because Chief [Anthony] Lowery and Lt. [Michael] Gaull, in two separate emails, informed Jason Johnson, a reporter for Lagniappe, that the investigation was conducted by the Major Crimes Unit and not by the Baldwin County Sheriff’s Office,” Clements wrote. “Had Johnson or the Lagniappe actually conducted any research into the matter, or perhaps made an effort beyond sending three short emails to Chief Lowery and Lt. Gaull before summarily concluding that the Baldwin County Sheriff’s Office had violated the Open Records Act, Plaintiff would have directed its requests to the appropriate investigating agency and this lawsuit would have never been filed.”
While it’s true that Gaull and Lowery both stated the investigation was being handled by the Major Crimes Unit, in the same email exchange, Johnson wrote: “If there’s someone else I need to make my request to, I’m happy to do that.” Gaull then proceeded to explain why the request could not be granted.
“Our agency is unable to process your request at this time,” he wrote. “Under the Code of Alabama, Section 12-21-3.1, law enforcement investigative files are not public records (see attached). In addition, if a court order is granted by a judge to released [sic] the information, please direct the order to the Baldwin County Major Crimes Unit, who is the investigating agency regarding this incident.”
No part of Lagniappe’s request asked for “investigative files” specifically, and at the time the records request was filed, the inquiry into Victor’s death had been closed for more than a year. Hunady was cleared of any wrongdoing in late 2017 after a grand jury determined his use of lethal force was justified.
This publication’s lawyers, which include attorney David McDonald as well as Matt Topic and Merrick Wayne of the Chicago-based firm of Lovey and Lovey, argued that, no matter which agency investigated Victor’s death, Lagniappe asked BCSO for public records that should be in its possession.
It’s worth noting that BCSO screened some of the body camera footage captured during Victor’s shooting with the local media on Oct. 16, 2017, during a press conference after Hunady was cleared by the grand jury that included members of the Major Crimes Unit as well as BCSO. Full unedited footage captured by body cameras, dash cameras and bystanders on the scene has not yet been released, though.
Audio from the incident captured officers giving Victor multiple verbal commands including “do not advance,” “stay right there” and “put it down.” In the video, Victor is seen holding something covered in some type of clothing while advancing toward officers. It was later determined to be a fanny pack. No weapon was found on Victor or in his vehicle.
Last month, Taylor set a date for a bench trial in the case for early 2020 while motion for summary judgement filed by BCSO, Gaull, Lowery and Sheriff Huey “Hoss” Mack was still pending. In an order entered Oct. 15, Taylor granted the motion for summary judgement, effectively dismissing the case.
The paper plans to appeal the decision, though a notice of intent has yet to be formally filed.
“While it is disappointing our request to gain access to the camera footage of the shooting of Jonathan Victor was tossed by Judge Taylor without a jury having an opportunity to consider this important records request, it isn’t at all surprising,” Lagniappe Co-publisher Rob Holbert said. “Appealing this decision to the Alabama Supreme Court is hopefully the right step in gaining access to what is supposed to be a public record and, most importantly, shedding light upon the events that led up to an unarmed Jonathan Victor being shot by a deputy after he’d had a wreck on the side of the road.”
Victor’s mother, Donna Chisesi, filed a federal lawsuit against Hunady, Mack and BCSO earlier this year over her son’s death. Lagniappe nor its attorneys are involved in that pending civil litigation.
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