Utah AG joins West Jordan and media sign on with Tribune in open records fight

Two entities are in court over whether Garrity statements from officer-involved shootings should be public

(Trent Nelson | The Salt Lake Tribune) Michael Glad appears on a series of murals depicting people killed by police, near 800 South and 300 West in Salt Lake City in July 2020.

The Utah Attorney General’s Office and multiple Utah media organizations have stepped into an ongoing court battle between West Jordan police and The Salt Lake Tribune, filing opposing briefs.

The entities are engaged in the dispute over whether internal documents related to a 2018 West Jordan police shooting should be made public.

Attorney General Sean Reyes’ office sided with West Jordan police, arguing in a recent court filing that the records should be kept secret. The media organizations — including the local Society of Professional Journalists, the Deseret News, KSL, FOX13 and The Utah Investigative Journalism Project — advocate the records should be released.

The Tribune is seeking interviews with two officers that West Jordan police said shot 23-year-old Michael Glad in May 2018, after police said Glad robbed a store, pointed a gun at officers and stole a patrol vehicle. Salt Lake County District Attorney Sim Gill ruled that the shooting was justified in October 2018, but noted the two officers who opened fire, Sgt. Tyrell Shepherd and officer Joshua Whitehead, cited their Fifth Amendment rights against self-incrimination and did not speak with prosecutors.

The officers did speak with their department’s internal investigators, however, because of a 1967 Supreme Court ruling in the case of Garrity v. New Jersey. Whatever an officer says in such “Garrity statements” can’t be used against officers in criminal court, but an officer who lies in such internal interviews, or refuses to give one, can be fired, according to the ruling.

The Tribune requested the officers’ Garrity statements in January 2021. The request was part of the news organization’s year-long investigation into police shootings in Utah.

The Tribune has received dozens of similar documents from other police departments throughout the state, and the State Records Committee in May 2021 ruled West Jordan should release the records. The West Jordan Police Department refused to release them.

‘Chilling effect’

Instead, the department took the case to 3rd District Court, arguing in a filing that the records were private and that releasing them would constitute an unwarranted invasion of privacy for both shooting officers, since they were told their Garrity statements would remain private. Attorneys for the police department have also argued that releasing the records could mean officers will be less likely to speak candidly about police shootings in the future, and will put them in danger of losing their jobs.

The attorney general’s office in its filing echoed these concerns.

“As the Tribune sees it, every officer-involved shooting is a potential violation of the public trust and, therefore, the public is entitled to all information relating to it, including Garrity statements,” attorney Sarah Goldberg wrote.

Goldberg said West Jordan police and other law enforcement entities have already released “sufficient information” related to the case, such as video footage and other reports, that explain why Shepherd and Whitehead opened fire on Glad. She said releasing Garrity statements would constitute an undue invasion of the officers’ privacy and have a “chilling effect” on officers in the future.

That could mean, Goldberg continued, that chiefs will have to make difficult decisions about “whether they should terminate a much-needed officer” who doesn’t provide a Garrity statement because the officer may fear that the statement will eventually be released.

“It is thus not just law enforcement officers or agencies that have an interest in maintaining the confidentiality of these Garrity statements,” Goldberg wrote. “The public has an interest in ensuring that nothing jeopardizes law enforcement agencies’ ability to effectively manage and govern their departments.”

‘Not a private matter’

Jeffrey J. Hunt, an attorney representing the coalition of media organizations, said West Jordan’s arguments to keep the statements private “actually favor access.” He wrote Garrity interviews may differ from what is released publicly and that officers’ jobs are in jeopardy if they lie or don’t participate in such interviews.

“Given that officers could face serious consequences from what happens in the interview, it is all the more important that there be public accountability for what transpires in the interview — to both protect the officers from unfairly punitive treatment in the investigation, and to protect the public from unfairly lenient treatment,” Hunt wrote.

Hunt added Utah law does not specifically classify Garriy documents as private and that without reviewing these interviews, the public cannot adequately evaluate the shooting.

“Such statements tell what happened from the officer’s perspective,” Hunt said. “And what happened — the use of deadly force by a public officer in the course of his public duties — is not a private matter. Nor is a public agency’s internal review of the incident.”

Tribune attorney Mike Judd said Monday he was “disappointed” that the attorney general’s office took a position that “interferes with public access to these records.”

“They admit in their brief how important transparency is with respect to these issues,” Judd said, “and there’s just no getting around the fact that making Garrity statements inaccessible to the public is going to mean police conduct is less transparent.”

The attorney general’s office launched an effort in 2019 to examine Utah’s rising number of police shootings after The Tribune reported police had shot at 30 people the year before — more than any year in recent memory. By 2021, the office still hadn’t completed its analysis because it struggled to get police reports for its database.

The office’s director of training, Scott Carver, hopes to finish it in the next six months. He recently told The Tribune the office still wasn’t done, but had obtained the documents for all shootings between 2016 and 2020 and was creating a searchable database.

“I used to think, ‘Oh, it’ll take about six months,’” Carver said. “That was about two years ago.”

West Jordan attorneys declined to comment.

The Tribune and West Jordan will respond to the filings before the end of this month. A hearing in the case could be scheduled as early as February.