City Tries, Fails to Convince Judge to Order Video of Officer’s Embarassing Testimony Removed from the Internet

The City of Collinsville, Illinois really doesn’t want people to see a video of one of its police officers admitting to some questionable training practices.  So much so that it tried (and failed) to convince a judge to issue a protective order requiring that the video be stricken from the internet.

Terrance Huff and Jon Seaton were driving home from a Star Trek convention when they were stopped by Collinsville, Illinois police officer Michael Reichert.  After being issued a written warning, Huff declined to consent to a search of his car and asked to leave. Officer Reichert informed Seaton that he was going to detain the vehicle to run a drug-sniffing dog around the car.  The dog ‘alerted’ to the front of the car and Officer Reichert performed a fruitless search.  [Radley Balko has more on the search and the disconcerting police practices that have made these types of stops routine.]

Huff, in true resourceful-nerd fashion, used public records requests to get the dashcam video of the stop, posted it to YouTube, and then sued Collinsville and Officer Reichert for violating his Fourth Amendment rights.

The lawsuit has borne more fruit than Officer Reichert’s search.  In excerpts from a videotaped deposition, Reichert discusses his practice of training the dog by visiting Collinsville hotels and rubbing the scent of contraband on guests’ cars — without their knowledge or consent.  This practice raises the obvious concern that any of those drivers could later be stopped, subjected to a drug dog’s sniff, and forced to sit on the side of a highway while an officer rifles through their possessions.  (Not a fun experience — trust me.)

This is that video:

Even though the plaintiffs had prefaced their case by posting embarrassing video of Officer Reichert, Collinsville apparently did not object to the videotaping of the deposition.  Nor does the available record disclose that Collinsville objected to these questions on the basis that they were unduly embarrassing to be relevant to the case.  (There is, after all, no suggestion that Officer Reichert’s stop of the plaintiffs was the result of this type of intrusive training.)  Nor does their appear to have been any objection when the plaintiffs filed the whole tape of the deposition with the court in conjunction with a motion for summary judgment.

There apparently was no objection for weeks after the deposition because Officer Reichert’s concessions were not embarrassing until they were broadcast on the local news and posted on YouTube.  It wasn’t that Collinsville felt some shame of the revealed practice — it was embarrassed that it was revealed.

The reassuring solution proffered by Collinsville was not to promise a change of policy or assure travelers that they’d get permission before rubbing contraband on their cars.  Rather, Collinsville sought a protective order (PDF) that would require that the video be removed from the internet. [The opposition to the motion is here (PDF)].

Collinsville argued that the video wasn’t really a public record because of quirky local rules governing the submission of videotaped depositions.  Collinsville also argued that the tape “distorts” Officer Reichert’s testimony, but leaves it up to the court to guess how.  Plus, Collinsville argued, if the public found out about this practice, Collinsville and Reichert would be so reviled that the jury pool would be poisoned.

The City then went on to cite a string of cases in which courts prospectively limited videotaped depositions or the disclosure of discovery responses when they involved private parties.  This, of course, is a case of seeking retroactive removal of public disclosures involving a public servant.  Many of the cases cited by Collinsville quite clearly warn that the rationale justifying restrictions on public disclosures by litigants would not extend to cases involving public servants.  Collinsville read these cases and then cited them.

In order to get a protective order, a party has to show (among other things) that the public interests (such as access to court records) is outweighed by private interests (such as encouraging forthcoming responses to sensitive but necessary questions, or avoiding improper abuses of the discovery process).  In a public record broadcast on local television, a public servant answered questions about his activities as a public servant.  How  Collinsville envisioned that retroactive censorship served the public interest (or that its invitation of the Streisand Effect was a wise use of its resources) is baffling.

The court rejected the request (PDF), suggesting that if Collinsville were really embarrassed by the content of Officer Reichert’s answers (rather than their being aired), it would have objected at any of its earlier opportunities.

Having failed to sweep Reichert’s testimony under the rug, the video remains public, along with Collinsville’s tacit admission that its contents are embarrassing — at least if they’re seen by the public, anyway.

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