Nevada Supreme Court orders Las Vegas Police to release mass shooting records - Baltimore Post-ExaminerBaltimore Post-Examiner

Nevada Supreme Court orders Las Vegas Police to release mass shooting records

LAS VEGAS – Clark County Sheriff Joe Lombardo who runs the Las Vegas Metropolitan Police Department lost another court battle on Friday in his latest attempt to keep the October 1 mass shooting investigation records from the public.

On Friday the Nevada Supreme Court denied the LVMPD’s emergency Motion for Stay pending appeal that was requested by the LVMPD and ruled that the department must begin releasing the records including body camera footage and 911 Communications Center calls from the night of October 1, 2017.

Attorneys hired by the LVMPD have been unsuccessful in recent months with their attempts to have the Clark County District Court to agree with them and halt the release of documents to the media.  As a last-ditch effort, the LVMPD appealed to the Nevada Supreme Court and filed an emergency order for stay which they lost on Friday.

The evidence in the possession of the LVMPD was used as a basis for conclusions in the LVMPD Preliminary Investigative Report that was released on January 19.

In November 2017 pursuant to the Nevada Public Records Act attorneys representing CNN, ABC, the Associated Press, Washington Post, Los Angeles Times, New York Times, Las Vegas Review-Journal, Las Vegas stations KSNV-TV and KTNV-TV filed motions in Clark County District Court for the release of the records.

In months since it was one legal stall tactic after another by the attorneys representing the LVMPD in their attempts to keep the records from the media.

When the District Court ruled against the LVMPD, Sheriff Joe Lombardo could have just followed the orders of the District Court and release the records saving tax-payer dollars however he chose not to do so.

Clark County District Court Rules Against the LVMPD

In ruling against the LVMPD the District Court stated In February that the Nevada Public Records Act provides that public records must be made available to the public for inspection or copying.  The purpose of the Act, said the Court, is to foster democratic principles by providing members of the public with access to inspect and copy public records to the extent permitted under Nevada law. The Act, as well as the First Amendment to the Constitution, provides the press with the ability to obtain and publish information about issues that affect the public interest and information about the conduct of government officials.  They further provide the press with the tools to ensure that the government is responsible and efficient.  Furthermore, they provide the press with the tools that assist the public in holding its government accountable.  Government records are presumed to be public records. Any restriction to the public’s right of access to public records must be narrowly applied.

The Court stated that Metro bears a heavy burden in preventing disclosure of public records pursuant to the Act.  Metro must satisfy a two-pronged test to justify non-disclosure.  Metro must first establish, by a preponderance of the evidence, that the public records sought are confidential.  Metro must then prove, by a preponderance of the evidence, that its interest in non-disclosure outweighs the public’s interest in access.  The Act establishes a presumption in favor of public access.

The Court recognizes that governmental entities are generally required to provide citations to legal authority supporting non-disclosure within five business days.  However, as to the Petitioners [the Media] argument that Metro waived the right to withhold public records in this case by failing to timely respond, the Court rejects this argument.  The Court finds that there was no implied, express, or statutory waiver due to Metro’s pre-petition conduct, particularly with respect to the extraordinary circumstances surrounding the October 1 Massacre.

The Court finds that Metro had a duty to redact confidential information and produce the non-confidential portions of the public records if it contended that the requested public records were confidential or otherwise protected from disclosure.  Wholesale withholding of public records with the general claim of confidentiality suggests to this Court that the records have not been sufficiently scrutinized.  The Court finds that asserting a blanket protection over all categories of public records is improper.  Metro had a duty to prove, by a preponderance of the evidence, that each public record or part thereof is confidential.  The Court finds that Metro failed to meet this burden.

The Court finds that there exists no rule that records can be withheld merely because they relate to an ongoing investigation. Metro still has the duty to show that the public records of the ongoing investigation are confidential.  In light of Metro’s preliminary report concerning the October 1 Massacre, the entire universe of investigative records cannot be so sensitive as to warrant wholesale withholding. Additionally, Sheriff Lombardo publicly stated that it is Metro’s responsibility to ensure timely disclosure of public records in this case.  Metro, however, failed to specifically explain how the public record production would impede the investigation.  To the extent that the disclosure might have some detrimental impact on the investigation, that impact is outweighed by the public interest.  The public has the right to know the manner in which its government officials are carrying out their safety responsibilities.

The Court finds that any personal privacy concerns implicated by the public records disclosure can be remedied by redactions, including individual names (other than government officials), addresses, phone numbers, social security numbers, descriptions of individuals, and social media data for all individuals.

The Court rejects Metro’s contention – that the horrifying 911 calls may be traumatic to close family members who hear the voices of their loved ones – as too speculative to weigh against disclosure. In the rare and limited circumstances that any such concern may arise, Metro may prepare a privilege log for future review and consideration by this Court.

The Court denies Metro’s request for an in camera [private]review.  The Court finds that the time has passed for Metro to assert any valid objection to production.  The Court finds that Metro has engaged in the wholesale withholding of public records with insufficiently specific reason to do so.  The Court concludes that Metro failed to prove by a preponderance of the evidence that any of the requested public records are confidential.  The Court further concludes that the strong public interest in favor of disclosure, together with the strong presumption in favor of production, outweighs any governmental interest in withholding the public records.

The Court finds that the public records sought include: 911 calls, body camera data, as well as dash cams, CCTV videos, evidence logs, dispatch information, interview reports, search warrant returns, affidavits of probable cause, purchase orders and no-bid contracts, and information on any weapons obtained during the investigation into the October 1 Massacre.

The District Court Ordered that:    

The Petitions are granted in their entirety; Metro shall immediately begin producing public records responsive to the public records request at issue in the Petitions; Metro shall produce the public records on a rolling basis, as public records are appropriately redacted and available for disclosure, without unnecessary delay; Metro shall exercise the utmost good faith in producing the public records on a timely basis; If Metro comes across any individual public record that may be highly confidential or where redactions may not be practicable, Metro shall meet and confer with Petitioners in an attempt to resolve the issue.  The Court cautions that this right to potentially seek a protective order is to be used very sparingly; That any protective order Metro may seek is not to be used to withhold entire groups of public records; That any filing of any subsequent motion for a protective order shall not cause any delay in the production of all other requested public records; To the extent that any public record produced might specifically identify the names of the individual or the description of the individuals or any other personal information, that information shall be redacted; Metro shall make any and all public records subject to this proceeding available at Metro’s office for review by Petitioners, particularly where production of those public records is either too burdensome or impossible otherwise; the Court is not waiving the payment obligation and Petitioners shall pay the fees associated with the production of the public records in accordance with NRS Chapter 239.

The District Court rules against the LVMPD again

The LVMPD was asking for a fee of $233,750 to $458,159 from the Media to produce 748 hours of body camera recordings.

On March 9 the District Court ruled against the LVMPD stating that Nevada law does not permit Metro to charge the Media these amounts to compile the body camera data.  Metro is limited to charging the Media only its actual cost to make duplications of the recordings, and the actual cost of the medium to which the recordings are transferred.

The Court ruled that Metro is allowed by law to charge the following fees, but no greater, to properly respond to the Media’s request pursuant to the public records request: Evidence Logs, and Interview Reports: 81 cents per page; Body Cams, and 911 Calls: Copy costs – meaning only the actual costs to reproduce the records onto the medium for transfer, and the cost of such medium (such as DVD, CD, flash drive, hard drive, etc.); Dispatch Logs: Pre-copy preparations, meaning actual cost to gather, discus, supervise and insure quality control, as part of the effort to comply with the Media’s request.

The Court granted Metro the minimum period of six months to produce all of the requested documents.  Metro must begin its production of records to the Media within three days from the date of this Order.  Metro must make a rolling production, meaning groups of documents must be produced as they become available.  Metro must provide the Media with an estimate of the allowable fees that are charged to the Media, consistent with this Order, within three business days from the date of this Order.  The Media may pay this amount in six monthly equal installments. The Media must pay each month at least one-sixth of the anticipated total charge at the beginning of each month production.

Conclusion

The LVMPD did not start producing records as ordered by the District Court on March 9.  Instead, they filed an appeal with the Supreme Court of Nevada and asked for an emergency stay so they would not have to release any records while their appeal is pending in the Supreme Court.  On Friday the Supreme Court denied Metro’s emergency Motion of Stay.  Metro is now compelled to start the rolling production of documents as ordered by the District Court.

That remains to be seen.

 

 

 

 


About the author

Doug Poppa

Doug Poppa is a US Army Military Police Veteran, former law enforcement officer, criminal investigator and private sector security and investigations management professional with 40 years of experience. In 1986 Mr. Poppa was awarded “Criminal Investigator of the Year” by the Loudoun County Sheriff’s Office in Virginia for his undercover work in narcotics enforcement. He was also re-assigned to the Northern Virginia Regional Narcotics Enforcement Task Force for 18 months. In 1991 and again in 1992 Mr. Poppa’s testimony under oath in court led to the discovery that exculpatory evidence was withheld from the defense by the prosecutor and sheriff’s office officials during the 1988 trial of a man accused of attempted murder of his wife that led to his conviction. As a result of his testimony the man was ordered released from prison, given a new trial in 1992 and found not guilty. Mr. Poppa became the subject of local and national news media attention as a result of his testimony which led to the demise of his 12-year police career. After losing his job, at the request of the FBI, Mr. Poppa infiltrated in an undercover capacity a group of men who were plotting the kidnapping of a Dupont Chemical fortune heir and his wife in 1992. His stories have been featured on Inside Edition, A Current Affair, and CBS News’ Street Stories with Ed Bradley. Contact the author.
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