The Buffalo News has filed a lawsuit to let the public see security-camera video of the violent beating of a handcuffed defendant in the Buffalo Police Department lock-up.
The video, according to the FBI, shows a docile victim — who had just asked for a lawyer — being shoved through a door, tossed to the floor and dragged to an open cell with a trail of blood in his wake.
Buffalo's police commissioner and the city's top lawyer have rejected The News' requests for the video through New York's Freedom of Information Law. The newspaper then instructed its lawyers to take the matter to court. The first arguments are to be heard Jan. 25 by State Supreme Court Justice Tracey A. Bannister.
“There is a compelling public interest to know what happened in the cell block that night," said Michael K. Connelly, News editor and vice president. "We believe this video, which is certainly a public record, will provide answers.”
Police Commissioner Daniel Derenda told The News in writing that he would need approval from the U.S. Attorney's Office before releasing the video to public view. He apparently feared that the video's release would interfere with the federal prosecution of the cell-block attendant charged in the attack, 26-year-old Matthew Jaskula, but Derenda did not elaborate.
Corporation Counsel Timothy A. Ball, the city's appeals officer for public-records requests, acknowledged that Derenda's response was "direct and curt." But he backed up the commissioner by telling The News in a denial letter that "the video in question is currently being used for the purposes of prosecuting a crime."
Ball then went further by citing security concerns as well as a New York civil rights statute that blocks public access to the personnel records of most uniformed employees, including corrections officers. Ball reasoned that the video could be considered a personnel record because it might someday be used to evaluate the employee's job performance. And while the video might also be shown at a public trial, Ball argued it should remain private, at least until then.
One of the state's foremost experts on New York's sunshine laws, Robert J. Freeman of the state Committee on Open Government, has long criticized the liberal use of the civil rights statute to deny records requests. His assistant director, Kristin O'Neill, did so as well when The News asked the committee for an advisory opinion about the sunshine law dispute with the Buffalo Police Department.
"Not every record that includes reference to a correction officer can be characterized as a 'personnel record,' " O'Neill wrote in her opinion, "and not every personnel record is used to evaluate performance." She went on to write, in an opinion cited heavily in The News lawsuit, that the images caught by a camera set up primarily to record inmates do not become a personnel record because an employee can be seen.
The newspaper's lawyers further argue that the Buffalo Police Department's own "manual of procedures" limits the use of surveillance recordings to criminal investigations, not personnel evaluations.
But at the core of the newspaper's Article 78 proceeding are arguments meant to counter the city's contention that the Freedom of Information Law lets it withhold the video because it's a law enforcement record that would "deprive a person of a right to a fair trial" if made public.
Ball pointed out that the U.S. Attorney's Office, when William J. Hochul served as U.S. attorney earlier this year, said the video "would jeopardize the defendant's right to a fair trial as it could bias and prejudice potential jurors."
The Committee on Open Government and the newspaper's lawyers, who are with the Damon Barclay law firm, push back with three main points:
- The U.S. attorney has no authority to say what a state or local government agency can or cannot do with a request for public records.
- In the past, courts have said that agencies must do more than simply say a law enforcement record would jeopardize the right to a fair trial. They must prove how that would happen if records are released. The city has not done so in this case.
- While city officials argue the video could prejudice a jury, an affidavit by FBI Agent Jennifer J. Amo details the action seen in the video, and her statement is in the public record. Further, Amo's description of what happened to Shaun P. Porter on May 19 has been widely reported.
Porter, 37 at the time, had just been arrested in a domestic violence matter when he stood for processing at the cell block at around 10 p.m. that day. With his hands cuffed behind him, he showed no aggression toward Jaskula or the two arresting officers, according to Amo's affidavit. But when Porter said something to Jaskula over his shoulder — that he wanted a lawyer — Jaskula shoved him through a doorway, and he hit his face on a shelf as he tumbled to the floor, Agent Amo wrote.
She went on to say that as Jaskula drags the victim by the arms to a cell, the victim "does not, and appears incapable of, offering any physical resistance."
Says the affidavit: After Porter was placed in the cell, and his blood pooled underneath him, Jaskula went to an office to tell the two lieutenants in charge that patrol officers had brought in a defendant with a bloody nose. When told the officers should bring the man to a hospital, Jaskula responded that the bleeding had stopped and the defendant was refusing treatment.
Some 90 minutes later, another attendant told a lieutenant that Porter was complaining of chest pain. He was soon treated at Erie County Medical Center for a broken nose, and sutures were used to close a cut near his right eye, the affidavit says.
In the aftermath, the police department began an internal investigation of the two arresting officers, who reportedly had done nothing to stop Jaskula. And lawyers for Porter began a civil lawsuit against the city.
In bringing its case to State Supreme Court, The News asks that the city pay its attorneys' fees should a judge agree with the newspaper's arguments.
"In an Article 78 proceeding, we are entitled to ask for attorney fees in our endeavor to gather information we believe we are entitled to," said Joseph T. Giglia II, the newspaper's general counsel. "Judges can, in their discretion, award those fees if they find we are right in our request."
He said the newspaper wants to put the video before the public because the incident is a matter of public concern. There's a federal case, and the victim has a lawsuit against the city.
"The public has a right to know what is at the crux of these two issues ... and as a matter of public policy, do things need to change as a result of what happened?" Giglia said.
“Access to government records is essential to ensuring the public’s right to know and allowing the press to serve its watchdog role," Connelly said. "The News will continue to aggressively fight for transparency at every level of government in Western New York.”