City denies request for 2018 shooting records

CNPA: Records should be public

Morgan Hill officials and free press advocates are at odds over whether video recordings and other records related to a 2018 officer-involved shooting should be made public.

In March, the Morgan Hill Times filed a California Public Records Act request with the city, seeking to review body camera footage of the April 29, 2018 incident involving MHPD Sgt. Bill Norman, who accidentally discharged his service weapon, striking a teen girl during a felony arrest. The newspaper also requested personnel, administrative and other internal records related to Norman and his involvement in the 2018 shooting.

Morgan Hill Police Chief David Swing and City Attorney Don Larkin replied that the city is not going to release the requested records, claiming they are exempt under the Public Records Act.

Larkin said the city has “always taken the position” that police body camera and dash camera videos are not subject to public release under the PRA—“unless there is a public benefit to releasing them.”

“(We) generally keep those confidential,” Larkin said. He added that in the April 2018 incident, further complicating any potential release of videos is the fact that the subjects involved in the police call were juveniles. State laws prohibit law enforcement and other public agencies from identifying juveniles.

The city also denied the Times’ request for personnel, administrative and other internal records under Senate Bill 1421, a new provision to the PRA that just went into effect Jan. 1. The law opens internal police records related to investigations “involving the discharge of a firearm at a person by a peace officer” and “relating to an incident in which the use of force by a peace officer or custodial officer…resulted in death, or in great bodily injury.”

Larkin said in the April 2018 incident, Norman did not shoot his firearm “at a person,” as the bullet hit the ground near him before a piece of it bounced up and hit the 14-year-old girl. The city attorney added that the shooting did not result in death or great bodily injury, further exempting the records from release. An investigation report of the incident by the Santa Clara County District Attorney’s Office, which cleared Norman of any crime, said the girl was treated at a nearby hospital and released the next day.

According to Larkin, the incident in question “does not meet that definition (of great bodily injury) because she was treated and released.”

Attorneys for the injured teen, however, said in a claim filed against the city that the child suffered a “severe injury” due to the accidental shooting.

Larkin added in justifying his denial of the Times’ SB 1421 request, “You don’t have an officer making a choice to use deadly force (in this case), and (he) didn’t intend to use any force at all.”

But an attorney for the California News Publishers Association said the city’s justification for denying the records requests is “inconsistent with the intent” of SB 1421 and the PRA.

“When you have a situation where the officer discharged their firearm and it injured someone, I think it’s hard to say that because their intent was not to shoot at the person, the records should not be disclosed,” said CNPA staff attorney Whitney Prout. She says the records of all officer-involved shootings, even accidental ones, and their related investigations should be open to the public.

“In a situation like this, when you have an officer who discharged a firearm, and injured someone, the public should know what happened,” Prout added. “The records should be open even if the officer did not act incorrectly.”

The April 2018 accidental shooting followed a high-speed pursuit to which several Morgan Hill police officers responded. The officers were trying to stop a stolen van that was driven by a 15-year-old boy. Two teen girls were passengers in the vehicle while it fled from police through town. The pursuit ultimately ended when an officer used his patrol car to cause the van to crash in the area of Llagas and Del Monte avenues.

Norman and other officers began to surround the van, which had destroyed a fire hydrant and streetlight pole, according to the DA’s investigation report. As the two girls walked slowly toward Norman with their hands up, Norman accidentally fired a round into the ground as he was holstering the weapon with his left hand. A fragment of the bullet bounced up and hit one of the teen girls in the eye.

Another new state law that amends the PRA—AB 748—will apply more clarity to the openness of police body cameras when it goes into effect July 1. This law will require police agencies to make officer body cameras available to the public after 45 days.

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