The Salt Lake Tribune and the City of West Jordan are asking a judge to decide whether interviews conducted after a police shooting are public records.
The Tribune argued in court documents filed Monday the records should be released because they would serve the public’s interest, a decision that would affirm a ruling by the State Records Committee earlier this year and that would be consistent with the release of dozens of other Utah police shooting records.
West Jordan attorneys say the internal records should not be released because they are compelled statements, “involving highly personal, emotionally-sensitive matters,” that officers gave with the understanding that they wouldn’t be shared publicly.
West Jordan’s police department has already turned over other documents, like video footage and incident reports.
The Tribune has requested internal records, called Garrity statements, which officers made after the shooting.
Garrity v. New Jersey (1967) is a Supreme Court decision that works to safeguard the Fifth Amendment rights of government employees who are ordered to give statements as part of internal investigation.
The decision means statements officers give during an internal investigation can’t be used against employees in criminal court. Under Garrity, police departments can also legally compel officers to make a statement and cooperate with an internal investigation. The Garrity interview may, for example, help a department evaluate whether an officer acted within the use-of-force policies of the department.
Mike Judd, lawyer for The Tribune, wrote the records are public because GRAMA doesn’t explicitly say they are private and releasing them wouldn’t impact any pending investigations, since prosecutors have already cleared the officers of any criminal wrongdoing and the department found the officers acted within policy.
“The interests favoring public access to Garrity statements related to a police shooting are self-evident. No act more directly implicates a potential violation of public trust than a police shooting,” Judd wrote. “...Given the clarity of that principle, and given an officer’s oath to uphold the Constitution, there could be no such thing as an internal affairs investigation into a police shooting that does not constitute an investigation of an alleged violation of public trust.”
West Jordan maintained in its filing that officer privacy outweighs public interest because police department employees may be less forthright in internal interviews if they know the statement could be public. Keeping the statements private encourages “open and frank statements by West Jordan employees” and allows “for fact-driven enforcement and disciplinary actions,” West Jordan lawyers wrote.
Attorneys for West Jordan didn’t respond to a request for comment on Tuesday.
Both West Jordan police officers, Sergeant Tyrell Shepherd and Officer Joshua Whitehead, said they revealed sensitive information about how they were feeling — details they wouldn’t have shared had they known their statements would become public.
West Jordan attorney Heather S. White wrote Shepherd said if the records were released, “he no longer has the ability to determine what information ‘of that event that [he] had to go through’ that his family ‘should have or shouldn’t have.’ His ‘children [could] now can get on the internet and read [his] entire Garrity interview. All [his] family and friends can.’”
In an emailed statement, Judd said it is important for the news organization to fight for internal affairs records.
“The legislature’s intent in enacting GRAMA was to protect the public’s constitutional right to access information concerning the public’s business,” Judd said. “And police shootings aren’t private matters — they’re public business.”
Tribune reporter Sam Stecklow first filed requests to the West Jordan Police Department for police shooting documents in January, as part of a collaboration between The Tribune and the PBS series FRONTLINE to document police shootings in the Utah.
The Tribune filed similar requests to law enforcement across the state and approximately 30 departments shared records, including West Valley City, South Jordan, Spanish Fork, Payson, North and South Ogden police departments, as well as the sheriff’s office in Utah and Tooele counties and the Utah State Park Rangers.
West Bountiful and Granite School District police, Box Elder Sheriff’s Office, and Utah’s Peace Officers Standards and Training organization also shared Garrity statements.
“Put bluntly, those entities’ willingness to release those records...reflects the illegitimacy of West Jordan’s arguments against access,” Stecklow wrote in a court filing. “Releasing records to the public does not significantly compromise policing, it does not unduly invade officers’ privacy, and it does not ‘chill’ internal investigations — the dozens of agencies identified above have continued to function following their release of records.”
West Jordan denied Stecklow’s January request, arguing Garrity interviews are private because they’re used solely for internal administrative purposes. The Tribune appealed to the State Records Committee, which ordered that records should be released.
The Tribune asked Cottonwood Heights police for the same records, which also declined to release. The State Records Committee again ruled in The Tribune’s favor, that Cottonwood Heights should release the Garrity reports.
“Simply because officers are required to participate in Garrity interviews, their privacy interests do not rise to the level of a ‘clearly unwarranted invasion’ of personal privacy because,” records committee chairman Kenneth Williams wrote in the West Jordan decision, “they are public officials with public responsibilities subject to public oversight.”
After the ruling neither West Jordan nor Cottonwood Heights, both represented by White and attorney Dani Cepernich, released the records. Both disputed the committee’s decision in June, filing petitions in Utah state court.
The Tribune and Cottonwood Heights agreed to dismiss the case after the news organization received the requested Garrity document outside of the GRAMA process, according to court filings. That document showed a discrepancy between information Cottonwood Heights police had released about the fatal shooting of 19-year-old Zane James and what the shooting officer, Casey Davies, said happened.
Prosecutors found the shooting legally justified and James’ parents have filed a lawsuit alleging Davies shouldn’t have fired.
If an officer lies during a Garrity-protected interview, or doesn’t submit to one, they can be fired.
“With the knowledge that potentially self-incriminating statements will be made public and publicized, officers and other public employees may reasonably be expected to more frequently view discipline and possible termination for refusing to provide a statement as the lesser of two evils,” White wrote. “This would interfere with the ability to effectively investigate officer-involved shootings, as critical information would be unavailable to WJPD.”
City attorneys also cite officers’ Fifth Amendment right against self-incrimination in a criminal trial as a reason for keeping the documents private.
Tribune attorney Judd called West Jordan’s arguments “unsupported, illogical, or both.”
“WJPD officers may well feel misled if a supervisor did, in fact, tell them that GRAMA contains express protection for Garrity statements — because it does not,” Judd wrote. “But that’s a dispute between WJPD and its officers, not between WJPD and the public.”
Stecklow said in court documents that available data shows officers were found to have violated department policy in fewer than 3% of more than 330 cases in The Tribune’s police shooting database.
Are Utah officers are “extraordinarily good” at determining when to use force within their agency’s guidelines or are internal reviews or policies deficient, Stecklow asks.
“Without access to an agency’s internal review of police shootings, we, the public — the true employers of these officers — can know none of these things,” Stecklow said.
For the records to be private, West Jordan must prove that GRAMA clearly says Garrity statements are private and that “the interests favoring secrecy outweigh those favoring access,” Judd wrote, adding “West Jordan cannot win on either.”