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| Still frame from video of shooting of Brian Riling |
A state agency has ordered the New Hope Police Department to provide the Bucks County Courier Times with documents related to Taser use as well as the Bucks County District Attorney’s report detailing a police-involved shooting stemming from a Taser confusion incident earlier this year.
Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association in Harrisburg, called the dual victories significant for the media and also the public who rely on the law.
“It’s encouraging to see the Office of Open Records put some limits on the breadth of the criminal investigation and noncriminal investigation exemptions,” Melewsky said. “Those are the two most commonly cited exemptions under the law and if not interpreted and applied narrowly they cause significant barriers to access.”
In an April 12 news release, Bucks County District Attorney Matt Weintraub found former Capt. Matt Zimmerman, 65, was not justified, but “excused” when he shot Riling. The DA found Zimmerman’s conduct was not criminal because of his “honest but mistaken” belief that he drew his stun gun during the evolving altercation involving a second police officer and Riling, who was arrested earlier that evening for allegedly assaulting an estranged girlfriend.
Riling survived a single gunshot to his abdomen but he has experienced ongoing medical complications, according to his attorney. He is awaiting formal arraignment in Bucks County court on charges including witness intimidation, harassment, strangulation and simple assault, which were filed before the shooting.
Zimmerman, who was on the police force for 33 years, retired two days before the DA determination was released. Weintraub did not release a copy of his shooting review report.
Subsequently, this news organization confirmed that at least 10 of the 11 officers employed at the time of the March shooting had outdated Taser certification; Zimmerman and four other officers were last certified to use a Taser in 2008, according to department records obtained through a Right to Know request.
Annual Taser training and recertification is a requirement under the borough’s police 2007 Taser use directive as well as Taser manufacturer Axon.
It is unknown if other officers with outdated training were carrying Tasers on duty. In the 12-minute surveillance video of the shooting, a Taser could be seen on the gun belt worn by a second unidentified officer involved in the holding cell altercation when the shooting occurred. All officers were certified in Taser use on March 29, according to department records.
Mayor Larry Keller, who oversees the police department, and police Chief Michael Cummings have referred questions to Christopher Boyle, a Montgomery County civil attorney the borough has retained. Boyle has refused to provide answers citing pending litigation.
This news organization filed separate Right to Know requests in April seeking copies of the Bucks County District Attorney’s Office’s letter to Cummings and its accompanying five-page DA review of the March 3 shooting and copies of all Taser Usage Report forms filed with the New Hope police chief and/or department Taser training for the calendar years of January 1, 2007 through year to date. The Taser Use Report request acknowledged the department may require some redaction of sensitive information.
Under the department’s Taser directive, New Hope officers must fill out and file a form whenever they draw or discharge a Taser explaining the circumstances. The reports are then reviewed by the chief or the trainer.
In its denial of the documents to this news organization, the borough contended the records were related to criminal and non-criminal investigations and contained medical information, and therefore are exempt as public records under the state’s Criminal History Records Information Act, known as CHRIA. The borough also argued that the appeal should be heard by the Bucks County District Attorney’s appeals officer, not the state appeals board.
The state Office of Open Records, however, found that the investigative exemptions the borough cited have only been extended to protect records of the agency carrying out an investigation.
“The OOR has generally held that an agency may not withhold records of another agency’s investigation,” according to the determination involving the DA shooting report. “Because the District Attorney’s Office conducted the investigation, rather than the borough, the criminal and noncriminal investigative exemptions under the RTKL do not apply and the OOR retains jurisdiction of this matter.”
The agency also found CHRIA did not apply because the borough failed to provide any evidence that the district attorney report was “disseminated” to the borough pursuant to CHRIA requirements.
In the Taser Usage Report appeal, the OOR found that information, while “tangentially related to a criminal investigation, is not investigative in of itself,” and the form’s purpose appears to be “outside of the criminal investigation itself.” The appeal officer also found the borough didn’t prove the forms are protected as noncriminal investigative records.
The state agency did transfer part of the request involving a comments section in the Taser Usage Form to the District Attorney’s Office to determine if that information contains any protected criminal investigative information.
The borough was directed to provide copies of the requested documents within 30 days, and the alleged assault victim’s name will be redacted. The borough also has 30 days to decide if it will file an appeal of the determinations in the Bucks County Court of Common Pleas.
The borough has not yet decided if it will appeal, according to Boyle.
Bucks County Courier Times and Doylestown Intelligencer Executive Editor Shane Fitzgerald said he hopes the borough will see that the information sought is of “great public interest” and release the documents immediately.
“From the day of the original incident, a dark cloud has hung over transparency in this case. What happened in the cell that night should not have happened, as the released video plainly shows,” Fitzgerald said. “Thankfully, the OOR saw what the public plainly sees, that the public deserves a full accounting of what happened, with the appropriate redaction of information that are sidelights to the actual shooting. If the borough appeals further, one has to wonder what more is being hidden.”
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