The Alabama Supreme Court heard oral arguments last week about whether Lagniappe properly sought camera footage and other records from an officer-involved shooting in 2017 and whether the Baldwin County Sheriff’s Office (BCSO) can claim those items are not considered public records.
The lawsuit was filed after BCSO denied an open records request related to the death of Jonathan Victor, who was fatally shot by Sgt. Matt Hunady in May 2017 along Interstate 10. Hunady was cleared of any wrongdoing after the investigation and a grand jury declined to indict him five months later.
Victor’s death, like all officer-involved shootings in Baldwin County, was investigated by the Baldwin County Major Crimes Unit (MCU) — a separate entity made up of representatives of several law enforcement agencies from surrounding municipalities as well as BCSO.
Lagniappe’s request was sent to BCSO, and though a reporter was told MCU might be a better source to query, a representative of the office also denied the request citing Alabama Code Section 12-21-3.1, which holds that law enforcement investigative materials aren’t public records.
In the trial court, though, Baldwin County Presiding Judge Scott Taylor focused on BCSO’s argument that the request wasn’t properly filed because, as the department’s attorneys argued, no investigative files would have existed at BCSO, because it was MCU that investigated Victor’s shooting.
Ultimately, Taylor agreed to dismiss the case on summary judgment last October.
Lagniappe’s local counsel — David A. McDonald and Blakely W. Barnes — appealed Taylor’s decision to the state’s highest court, which agreed to hear oral arguments on the matter July 8 in Montgomery.
Before the court, McDonald argued that regardless of whether MCU had more records related to Victor’s shooting, BCSO had an obligation under state law to identify and provide any records in its possession or prove why they weren’t subject to release due to investigative privilege.
Specifically, the arguments focused on body-camera and dash-camera footage captured by Hunady and other deputies on the scene. While MCU obtained copies of those recordings as part of its now-closed investigation, the footage itself was undoubtedly in BCSO possession at some point.
McDonald noted the trial court never actually conducted an evidentiary hearing on whether BCSO had those recordings or whether Lagniappe could obtain them or any of the other records it sought related to Victor’s shooting from BCSO. Instead, the case was thrown out based on where the reporter sent the initial email inquiry.
“We want to start with getting records the sheriff has that are responsive to the request, and we can deal with the Major Crimes Unit at another time,” McDonald said. “Imagine the issues we’re going to have if a government agency can say, just a dodge, ‘You need to go somewhere else because they may have more records.’ That’s not what the statue says. The sheriff has the obligation to produce whatever records he has irrespective of whether there are other records possessed by another agency.”
On BCSO’s behalf, Fred L. Clements Jr., argued Lagniappe’s request wasn’t properly filed and, even if it was, it was properly denied because investigative files are protected under state law. At Chief Justice Tom Parker’s request, Clements focused much of his argument on whether body-camera and dash-camera footage are considered public records or would be considered protected as an investigative file.
As Lagniappe has noted, Alabama’s Legislature hasn’t exactly ironed out this area of the law yet.
While there have been some attempts at legislation setting comprehensive rules for how to use body cameras and who can request the footage captured by them, the details can currently vary from department to department and, in some cases, from situation to situation within the same department.
Clements argued the existing language exempting field notes and investigative recordings from public records requests would also apply to footage captured by body-cameras — something he described as a “highly detailed field note.”
“Rather than the officer writing notes down with a pen and pencil, he’s able to turn on a recorder that captures everything that’s occurring. Dash cameras and body cameras also often capture witness statements,” Clements said. “It is note-taking that uses the technology that’s available to them.”
Clements put a lot of emphasis on the fact officers have to take deliberate action to engage most of the recording devices they use. For instance, engaging a cruiser’s blue lights will start a recording on its dash camera and most body cameras have to be physically turned on by the officer wearing them.
Justices Sarah H. Stewart and Brady E. Mendheim Jr. seemed to push back a bit on Clement’s reading of the law, arguing investigative notes typically aren’t just the description of a scene or an initial incident involving an officer, but rather the product of a deliberate investigation into a previous incident.
Mendheim drew a comparison to dash-camera footage capturing a DUI suspect swerving on the roadway and body-camera footage capturing an officer interviewing the suspect and conducting a field sobriety test after initiating a traffic stop. Mendheim said he could only see the latter as a form of high-tech “note-taking.”
“In our situation, this is just the raw incident that happened out on the highway,” Mendheim said. “The shooting of a man, as horrible as that is and regardless of what side anyone’s on, an incident like that is not note-taking … I don’t think he’s consciously note-taking with his rifle pulled out on this person.”
Clements ultimately said he would have to disagree.
One of the final issues the court evaluated was whether Sheriff Huey “Hoss” Mack and BCSO properly claimed the investigative privilege enjoyed by law enforcement entities before the trial court. In his arguments, Clements said the defense had not because Judge Taylor — and the motion for summary judgment the department filed — focused on whether the request itself was proper.
Clements told the court BSCO discussed the issue at previous hearings and alluded to it in emails to Lagniappe but did not officially preserve it for the appellate record. Justice Alisa Kelli Wise reminded Clements that the court cannot consider what is not established in the record from the lower court.
It’s unclear how long it could take justices to render a decision in the case.
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