Wednesday, February 22, 2012

Why I'm Suing Attorney James Egan

Posted by on Wed, Feb 22, 2012 at 8:43 AM

This guest post is by Pete Holmes, the Seattle City Attorney, whose office will argue the case on February 28 before King County Superior Court Judge Dean Lum.

With videos of SPD actions gone viral against the backdrop of a Justice Department investigation, now hardly seems the best time to file a lawsuit in response to a Public Records Act (PRA) request by lawyer James Egan. It’s important to understand, however, that accountability and transparency aren’t the only values at stake in Mr. Egan’s request for 36 dash-cam videos from the patrol cars of four Seattle police officers. Washington’s Privacy Act requires me to safeguard the privacy and other significant rights of the individuals recorded in those videos—and none of them are represented by Mr. Egan. My decision to file a declaratory judgment action on January 3 simply seeks court guidance on how to reconcile these two conflicting state laws.

The City of Seattle is caught between the proverbial rock and a hard place: the PRA (RCW Ch. 42.56), which mandates broad disclosure of public records such as dash-cam videos, and the Privacy Act, (RCW 9.73.080 (2)), which makes it a crime to wrongfully disclose copies of such recordings. And this conundrum isn’t unique to Seattle. Any law enforcement agency in the state could find itself in the same situation. Fortunately, the PRA authorizes any public agency to file a declaratory judgment action to obtain a court’s guidance when faced with this sort of dilemma, and that’s what I’ve done in this case.

I have just two goals: to make sure the city complies with the law, and to minimize potential cost of liability that would ultimately be paid by the City’s taxpayers. While Mr. Egan was named as the defendant in the declaratory judgment action in King County Superior Court, my office is only seeking judicial guidance, not monetary damages or attorney fees. I acted only after Mr. Egan demanded that SPD produce the videos and, brushing aside our valid concerns, threatened to sue us if we didn’t give him exactly what he wanted. Mr. Egan doesn’t have concern himself with the potential impact on the people recorded in these videos, but I do.

The kind of videos Mr. Egan requested are so-called “tagged” videos. These videos are tagged precisely because they are expected to or are likely to lead to litigation. (SPD’s entire patrol car fleet of approximately 275 cars has been equipped with in-car dash cam video and sound recording equipment since 2007.) And while the city willingly distributes copies of these videos to the recorded subjects and their attorneys, Mr. Egan chose to ask for them for his own undisclosed purposes—not for identified subject clients—under the PRA.

That’s where the Privacy Act comes into conflict. RCW 9.73.090(1)(c) says, “No sound or video recording made under this subsection (1)(c) may be duplicated and made available to the public (writer’s emphasis) by a law enforcement agency subject to this section until final disposition of any criminal or civil litigation which arises from the event or events which were recorded.”

The Public Record Act’s emphasis on transparency is an effective tool for police accountability. The Privacy Act, on the other hand, furthers not only the right of privacy expressly stated in Washington’s constitution for people who encounter police in a wide variety of circumstances; it also limits public distribution of the recordings until the subjects have had a chance to fully and fairly resolve criminal and civil litigation. Since video and audio recordings are always available to the people recorded, accountability is thus assured while privacy is protected.

Without the Privacy Act, imagine these scenarios in which videos could be widely disseminated over the internet or other media:

1. A young man suffering a psychotic episode erupts in rage on the street, and a passerby calls 911. Although a danger only to himself, and ultimately he is successfully treated to become a fully functioning human being, the video of the encounter with officers follows him throughout his life as he seeks housing and employment.

2. Someone calls 911 when neighbors hear a man and woman arguing loudly. When officers arrive, their dash cams catch the half-clothed woman as she flees the house.

3. A gay college student is a witness to a minor altercation outside a nightclub popular with gays. He has not come out to his parents who see the video.

The Privacy Act limited public disclosure of videos because of the impact it could have on litigation. Once the public has seen a video, everyone is a “witness” to what was recorded – even if the video hasn’t captured the entire incident or it has been heavily edited.

I believe in transparency. I believe in accountability. And I believe in the other rights of every Washingtonian, including privacy and the right to fair trials. My declaratory judgment action properly seeks court guidance on how to balance these considerations so that the city isn’t damned if it does, and damned if it doesn’t.


Comments (36) RSS

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Fnarf 1
Why is this on Slog? Is it a paid political ad?
Posted by Fnarf on February 22, 2012 at 8:53 AM · Report this
fuck you and your pig buddies holmes
Posted by Swearengen on February 22, 2012 at 8:58 AM · Report this
@1, be nice - ever since Holmes' son finished that Stranger internship to return to the Harvard mens' glee club, the paper has had trouble finding the proper avenue for another in-kind contribution.
Posted by gloomy gus on February 22, 2012 at 8:59 AM · Report this
actually, Egan has clients and he wants videos showing the other excessive force incidents involving the same officers that harmed the clinets he has. Stranger should at least get a comment from him before letting holmes use stranger for a forum -- the vast majority of SPD videos Egan is seeking are about on street public encounters in public and they are not private things and they do not involve the kinds of scenarios Holmes mentions as examples of cases where privacy truly is at stake. Rather, the videos sought are on street encounters where the same officer that harmed Egan's client harasses or uses excessiv force in on street encounters with others -- others who were on public streets, interacting in public with officers. The attorney for the city here is slickly twisting the facts and not showing the videos sought either -- so you have to trust him if he says there's a true privacy concern. should you?

well look at it this way. He didn't uncover the long term disaster at spd in simply nothaving an effective review system for use of force, did he? it was DoJ. apparently our own attorney Pete Holmes didn't notice that the spd use of force review system was nonexistent and was a rubber stamp promoting illegal use of force like doj said.

the point of the videos was to let citizens challenge officer misconduct. so when an officer beatsyou up, you should be able to get the video of that officer doing the same thing to others -- how else do you prove their intent? The prosecutors can bring up prior bad acts of criminals that match the circumstances of the alleged bad acts in question in a criminal trial to show intent or modus operandi -- how are you going to prove that if the city doesn't give you the video?

this suit is yet another step by the c ops and Holmes tohide video from the public.
Posted by 1983 policy and custom on February 22, 2012 at 9:03 AM · Report this
When harassed by SPD, do the subjects in these videos have the means (both financial and intellectual) to hire an attorney to file a public records request on their behalf? I imagine many of them don't.

I voted for Pete Holmes because I thought he'd be the city's attorney, not the SPD's.
Posted by DOUG. on February 22, 2012 at 9:09 AM · Report this
hey holmes why are you trying to prevent a case against the spd from being heard by the supreme court?…

oh yeah it's cause you're fucking pathetic and don't give a fuck about any citizen in seattle

your kid was a shitty writer too
Posted by Swearengen on February 22, 2012 at 9:09 AM · Report this
The privacy 'concern' is week. All of the examples mentioned would occur in pubic space. There is no reasonable expectation of privacy when you are in pubic, which is why private citizens can record and photograph you at will. The only restriction on use of those images is when they are used for commercial purposes.

This is an issue between PRA and 9.73.090(1)(c) period. The privacy issue is a concern troll.
Posted by Action Slacks on February 22, 2012 at 9:11 AM · Report this
Instead of suing him, why don't you ask legislators to resolve the conflict in the law? If you need time before KOMO's lawsuit comes before the court, you can ask the judge to put the case on hold.

Or is asking the branches to work together wildly naive? Also, since you knew this was a problem, why didn't you push for a solution before it got to this point?
Posted by sahara29 on February 22, 2012 at 9:12 AM · Report this
Vince 9
Two concerns I have are these are the public's property and, given the force's recent reputation, one can't help the feeling something is being hidden.
Posted by Vince on February 22, 2012 at 9:21 AM · Report this
Good job Pete!!

I agree that the public has no right to know what the police are doing. The police are professionals and I trust them to act appropriately at all times. There is no need for any oversight outside of the police dept and the police union.

I move that we just get rid of these dash cams and destroy any video we have of officers. In addition, I urge the legislature to make it a crime to record an officer by any means. Any audio, video, written or verbal account of an officers actions beyond that officers own report should be outlawed.
Posted by SeattleSeven on February 22, 2012 at 9:24 AM · Report this
OMG, this comment thread is attracting all of the gems so quickly.

@6--you seem confused about the issue involved in the case you reference. The 9th circuit ruled that the pregnant woman could sue the officers. Ted Buck, who had represented the officers on the City's dime, wanted to appeal that to the US Supreme Court and argue that the officers could NOT be sued. The City opposed this move and asked that the Supreme Court not hear the case. In other words, the City has acquiesced and ruled that the officers could be sued. I don't know how that translates into not caring about average citizens.

@5--you don't need a lawyer to file a public disclosure request. It's actually pretty easy.

@8--asking the legislature to resolve the conflict might help in the future, but it doesn't help to protect the City in this case. If the City were found to have wrongfully withheld the records, they (read: taxpayers) would be subject to significant financial penalties. On othe other hand, if the City were found to violate the privacy act, they could also be subject to significant financial damages. Filing a declaratory judgment is the one way to get a fast (or as fast as possible) resolution and prevent a major financial hit.
Posted by Gidge on February 22, 2012 at 9:40 AM · Report this
internet_jen 12
So I cant make multi-media art with dash cam footage?
Posted by internet_jen on February 22, 2012 at 9:40 AM · Report this
Fnarf 13
@6, you have the sides on that case exactly backwards.
Posted by Fnarf on February 22, 2012 at 9:45 AM · Report this
dirac 14
@11 I'm not exactly sure why we want to "protect the city" in this case. You have two propositions whose antecedents depend on the city failing to comply with the law. Given that the mechanisms for the supposed accountability of the police department are broken, I think any taxpayer expense used to actually remedy that is well-spent.
Posted by dirac on February 22, 2012 at 9:52 AM · Report this
@7 In WA even in public spaces, audio recordings are not permitted without consent like video and photographs. WA is what’s called a two party consent state.
Posted by wl on February 22, 2012 at 9:55 AM · Report this
dirac 16
Also, I want to see Egan's take on this issue. Hopefully, that will be posted in a follow-up as it mentions him directly without any mention of a request for comment on the part of The Stranger?
Posted by dirac on February 22, 2012 at 9:56 AM · Report this
seandr 17
Tough issue. Dash cams are one of the only effective mechanisms we have for holding police accountable (e.g., Ian Birk). At the same time, this issue raises legitimate privacy concerns.

Perhaps the solution is to obtain consent for release of all dash cam video from all officers as a precondition of being hired, and then release videos only after consent has been obtained from the citizen(s) featured on the video, who should be more than willing to give it if they are trying to establish mistreatment by an officer.
Posted by seandr on February 22, 2012 at 10:10 AM · Report this
Westlake, son! 18
Public cameras mounted to public cars driven on public streets by public servants. I don't want to hear about "privacy" being used as a method to hide public records.

If Seattle wants to minimize potential cost of liability of these public records, then hire honest police and train them to not break the law.
Posted by Westlake, son! on February 22, 2012 at 10:17 AM · Report this
@17 I like your idea of citizen's consent, but I thought it was interesting that Eagen is only requesting a specific type of video:
The kind of videos Mr. Egan requested are so-called “tagged” videos. These videos are tagged precisely because they are expected to or are likely to lead to litigation.

So if these videos are already most likely going to court, then it will all be public anyway.
Posted by sisyphusgal on February 22, 2012 at 10:42 AM · Report this
Joe Szilagyi 20
Wait, so SPD specifically tags videos they expect to lead to litigation against them?

Does anyone notify the subjects of the videos to this fact? That's outrageous.
Posted by Joe Szilagyi on February 22, 2012 at 10:45 AM · Report this
Joe Szilagyi 21
So if these videos are already most likely going to court, then it will all be public anyway.

This assumes the subjects/victims even known they are in tagged videos.

That could be a hell of a thing for The Stranger to investigate, and give Sean Whitcomb more heartburn.
Posted by Joe Szilagyi on February 22, 2012 at 10:46 AM · Report this
Geraldo Riviera 22
I believe "I have just two goals: to make sure the city complies with the law, and to minimize potential cost of liability that would ultimately be paid by the City’s taxpayers." is disingenuous.

Per your prayer for relief you state your goals are:

1) Enter a declaratory judgment that the RCW 9.73.090(1)(c) controls the disclosure of incar videos.

- you want RCW 9.73.090(1)(c) to trump the public disclosure act

2) Enter an order enjoining the City from duplicating and making in-car videos available to the public any earlier than three years from the date of the events recorded;

- you don't want to disclose any video to the "public" (a word that RCW 9.73.090(1)(c) doesn't define) for three years minimum.

What are you guys trying to hide?…

Posted by Geraldo Riviera on February 22, 2012 at 10:50 AM · Report this
Joe Szilagyi 23
Enter an order enjoining the City from duplicating and making in-car videos available to the public any earlier than three years from the date of the events recorded;

Coincidentally, the statutes of limitations. Dirty pool, Holmes, and you can be replaced like Carr was.
Posted by Joe Szilagyi on February 22, 2012 at 10:59 AM · Report this
@17 hits the nail on the head. Public disclosure and privacy rights are both hot button issues and the legislature has done a lousy job syncing up the obligations the statutes impose on local governments. If the city fails to disclose, they can be on the hook for thousands in fines and legal fees under the public records act but if they disclose too early or too much then they can be on the hooks for thousands under the Privacy Act. Getting a declaratory judgment protects the City, Mr. Holmes' "client", from an adverse judgment. CYCA (the second C is for client) is the first rule of good lawyering and to sounds like Mr. Holmes is doing a good job of it.
Posted by Dernin29 on February 22, 2012 at 11:43 AM · Report this
Hahahahahaahahah, ROTFLMAO. Oh Mr. Holmes, you're too much. Thank you for the laffs.
Posted by Mugwumpt on February 22, 2012 at 11:51 AM · Report this
@15 You are correct on the audio. I was thinking more along the lines of photos/videos.

However, this is no effective requirement for an an officer to disclose and get consent from someone they are recording. The 'exigent circumstance' exception would cover the vast majority of what is captured on SPD's recording system, so I'm not sure the two party principle would apply. But I'm no lawyer.
Posted by Action Slacks on February 22, 2012 at 12:05 PM · Report this
Will in Seattle 27
But ... where will YouTube get it's vids if they disallow this?

@23 has a very salient point. Seattle gave up on the SPD last year, every month they delay just makes everyone except the tax-avoiding drug-buying suburbanites who don't vote here madder and madder. We want action, not excuses.
Posted by Will in Seattle on February 22, 2012 at 12:08 PM · Report this
I was immediately skeptical of Mr Holmes, and I read the letter three times looking for that "you little prick!" moment, but I never found it. I have to agree with @17 and @24; I think it's a reasonable request to get some guidance here. Although I don't think @17 solution is feasible--there has to be some middle ground between "no expectation of privacy in public" and having everyone caught on video sign a release of some sort.

It is some BAD timing though. Holmes is right about that.
Posted by shaneleopard on February 22, 2012 at 12:10 PM · Report this
@12 -yes, you absolutely can. That is what is termed 'editorial usage.' So long as you don't upload it to a stock video site where it could be used for non-related commercial purposes, you are fine. You can sell the piece of art, images of it could be used in publications about the art, sold as reprints, etc. Editorial use is pretty broad.
Posted by Chris Jury on February 22, 2012 at 1:26 PM · Report this
Eric Arrr 30
Mr. Holmes,

As I'm sure you're aware, the WA Public Records Act provides an exemption to protect the privacy of citizens who are recorded in incidents such as the three hypothetical examples you mention. Records may be withheld "if disclosure of information about the person: (1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public.

If the city's privacy concerns were valid, the city could and should have denied Mr. Egan's PRA on those grounds. The fact that the city has not invoked the PRA's privacy provision only goes to show that these videos do not raise a privacy concern, and that the privacy argument is being used disingenuously, apparently to protect officers and the city from liability.
Posted by Eric Arrr on February 22, 2012 at 2:42 PM · Report this
Captain Wiggette 31
@15: That is absolutely 100% NOT TRUE.

It is absolutely legal to record audio openly in a public space if there is no expectation of privacy.

See RCW 9.73.030, to wit:

(1) Except as otherwise provided in this chapter, it shall be unlawful for any individual, partnership, corporation, association, or the state of Washington, its agencies, and political subdivisions to intercept, or record any:

(a) Private communication transmitted by telephone, telegraph, radio, or other device...

(b) Private conversation,...
Posted by Captain Wiggette on February 22, 2012 at 4:36 PM · Report this
Free Lunch 32
Once the public has seen a video, everyone is a “witness” to what was recorded – even if the video hasn’t captured the entire incident or it has been heavily edited.
Wait - these dashcam videos are heavily edited?
Posted by Free Lunch on February 22, 2012 at 7:56 PM · Report this
Complaints or concerns about the performance of Law Department employees may be made by writing the City Attorney's Office at:

600 Fourth Avenue, 4th Floor
PO Box 94769
Seattle WA 98124-4769

Telephone calls to the office's main number, (206) 684-8200, can also be routed to the employee's supervisor for handling. You may also contact the Customer Service Bureau, 684-CITY (2489).
Posted by abomb on February 22, 2012 at 10:36 PM · Report this
watchout5 34
I don't even know where to start with this, Mr. Holmes response makes me believe now more than ever that you're fighting a losing battle. First there's this idea that if you release any and all dash cams that the only next step is that everyone consumes them on the internet forever. What would be the problem with the city reviewing the tapes with the lawyers in private and then letting them keep the one's where the cops broke the law? I get that you want to cover your bases, but the more you play cover for these animals the more I want to see these videos, even if they are some kind of destructive force that will haunt someone for the rest of their life, but that seems like a straw man argument and you should know better.

"now hardly seems the best time to file a lawsuit" - That entire sentence is made of fail. If not now when? 2 years down the road? When these cops have the opportunity to do more damage to the city's name? I hope this was a sad joke, because it's about the most unprofessional phrase to use that shows you're obviously trying to cover something up. "just not right now" is what congress says, now is always a good time for accountability, now is always a good time for justice.

"and to minimize potential cost of liability that would ultimately be paid by the City" - You know what minimizes the potential liability of the city? Punishing officers who willingly step outside the bounds of their uniform in the name of the city and sending a message to other officers to obey their duties. Had these videos been watched, at least by YOU of all people, the answer to clean up the force should be obvious, or to just release the damn videos. It's a liability you're trying to run the clock out on, it's unbecoming of a prosecutor who's supposed to work in the city's best interest overall, not just in our pocketbooks. If it takes a million dollar settlement for the abusers at the SPD to get the message that they should think twice before being racist shitbags than double it and make sure you actually hold to account the officers of the force making everyone else look bad. This city has a deficit and it's way larger than economic, we have a moral obligation to seek justice in the name of liberty and to take it away because "now isn't the time" or "someone not involved might get embarrassed" or "it'll cost us money we don't have" you may as well just say what you mean. Your buddies on the force would hate to account for the actions, and you're more than willing to delay the process any way you can. Oh and the money, you can always claim you did it for the benjamins.
Posted by watchout5 on February 23, 2012 at 11:39 PM · Report this
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