Knoxville Media Coalition files lawsuit for release of KPD body cam footage of officer involved death of A-E student

KNOXVILLE, TN (April 20, 2021) – The East Tennessee Enlightener has joined a local media coalition in a motion for the release of the KPD bodycam footage of the officer-involved shooting death of a student at Austin-East High School.

District attorney general Charme Allen has optioned to not release bodycam videos at this time and has not determined when or if they will be released.

The suit was filed today in Knox County Criminal Court. The following joint statement was issued on behalf of the petitioners:

“The Intervenors are seeking to enter this lawsuit to support the position of the City of Knoxville and its Mayor in the interests of transparency and the accountability of the government to the people that it serves.  Full disclosure has been requested by a broad range of individuals, some of whom were involved in the incidents giving rise to this controversy.  It is the belief of the Knoxville media coalition that truth, accountability and transparency promote understanding and that non-disclosure fosters the potential for misunderstanding and misinterpretation.  The overriding principle in our American form of government is the accountability of the government to the people because the government is created by the people to serve the people.”

The petition is as follows:

IN THE CRIMINAL COURT FOR KNOX COUNTY, TENNESSEE

IN RE: STANDING PROTECTIVE
ORDER CONCERNING LAW
ENFORCEMENT VIDEOS                   No. 118828

MOTION FOR LEAVE TO INTERVENE AND TO SEEK INTERPRETATION AND CLARIFICATION OF STANDING PROTECTIVE ORDER

IN THE CRIMINAL COURT FOR KNOX COUNTY, TENNESSEE

 

IN RE: STANDING PROTECTIVE

ORDER CONCERNING LAW

ENFORCEMENT VIDEOS            No. 118828

 

MOTION FOR LEAVE TO INTERVENE AND TO SEEK INTERPRETATION

AND CLARIFICATION OF STANDING PROTECTIVE ORDER

 

 

Come now the within listed Intervenors and seek permission to

intervene in this cause. In support of this Motion, your Intervenors would

respectfully show the Court the following:

 

1. Joel Christopher, a citizen and resident of Tennessee,

individually and as Executive Editor of the Knoxville News Sentinel, seeks leave to

intervene in this cause. The Knoxville News Sentinel is a newspaper of general

daily circulation, in print and electronically, throughout Knox County, the State of

Tennessee and contiguous states. The Knoxville News Sentinel is a part of the USA

Today Network – Tennessee which is composed of the following newspapers:

 

Memphis Commercial Appeal – Memphis

The Jackson Sun – Jackson

The Clarksville Leaf-Chronicle – Clarksville

Nashville Tennessean – Nashville

The Daily News Journal – Murfreesboro

Knoxville News Sentinel – Knoxville

 

The USA Today Network is the largest news network in the State of Tennessee. It

has an average of over 8,000,000 visitors per month and over 44,000,000 page

views per month.

 

2. In addition to being the Executive Editor of the Knoxville News

Sentinel, Joel Christopher is an advocate for public disclosure and public access

to all records of every kind and nature including, but not limited to, law

enforcement records and records of criminal proceedings as well as court records.

He is also a member of the Board of Directors of the Tennessee Coalition for Open

Government which is the only non-partisan and non-profit organization in the

State of Tennessee whose sole mission is to protect and promote citizen access to

government information and public meetings through education, tracking and

identification of developing issues aimed at preserving and improving government

transparency.

 

3. The Intervenor, Patricia Williams, is a citizen and resident of

Tennessee, acting individually and as Publisher of The East Tennessee

Enlightener.

 

4. The Intervenor, Jesse Mayshark, is a citizen and resident of Tennessee, acting individually and as Co-Publisher of Compass, an internet-based source for news and analysis.

 

5. The Intervenor, J. J. Stambaugh, is a citizen and resident of

Tennessee, acting individually and as Editor and Publisher of Hard Knox Wire, an

internet-based news outlet featuring real news and information.

 

6. The Intervenor, WUOT Radio, is a broadcast service of the

University of Tennessee.

 

7. The Intervenor, WBIR-TV Channel 10, is a Knoxville-based

television station broadcasting news and information.

 

8. The Intervenor, WATE-TV Channel 6, is a Knoxville-based

television station broadcasting news and information.

 

9. The Intervenor, WVLT-TV Channel 8, is a Knoxville-based

television station broadcasting news and information.

 

10. Your Intervenors seek leave to intervene pursuant to the

following:

 

1. the common law of the State of Tennessee;
2. the Constitution of the State of Tennessee, Art. I, § 17;
3. the Constitution of the State of Tennessee, Art. I, § 19;
4. Rule 47 of the Tennessee Rules of Criminal Procedure;
5. Rule 1(a) of the Tennessee Rules of Criminal Procedure;
6. Rule 2(a) of the Tennessee Rules of Criminal Procedure –

Simplicity in procedure;

1. Rule 2(b) of the Tennessee Rules of Criminal Procedure –

Fairness in administration; and

1. Rule 2(c)(1) of the Tennessee Rules of Criminal Procedure –

Elimination of unjustifiable expense and delay.

 

11. The purpose of the intervention in this cause is to support and

enlarge upon the Petition for Clarification and Interpretation of Standing Protective

Order previously filed by the City of Knoxville.

 

12. Based upon information and belief, the Intervenors submit the

following Statement of Facts as applicable to the issues raised in this Motion and

intervention. For the purposes of this Statement of Facts, the following

identification will be utilized:

 

1. The members of the Knoxville Police Department involved in the

incident will be referred to as “policeman” or “policemen” based upon whether the

reference is singular or plural.

 

1. The individual with whom the police interacted will be identified

as “the individual complained of”.

 

1. The party who filed a complaint with the police about the

conduct of the individual complained of will be identified as “the mother of the

victim”.

 

1. The female juvenile who reputedly was romantically involved

with the individual complained of will be referred to as the “victim”.

 

 

STATEMENT OF FACTS

 

13. Prior to the 12th of April, 2021, the individual complained of and

the victim had entered into a romantic relationship. Both the individual

complained of and the victim were students at Austin East High School in

Knoxville, Knox County, Tennessee.

 

14. The relationship between the individual complained of and the

victim was marked by conflict.

 

15. On the 12th of April, 2021, the mother of the victim received a

telephone communication from the victim requesting permission to come home

early from school, which permission was granted.

 

16. Upon arriving at home, the mother of the victim noted that the

victim had markings on her face indicative of a physical altercation and was

missing part of her hair.

 

17. After questioning, the victim admitted to the mother of the

victim that she had had a physical altercation of the individual complained of

which resulted in her injuries.

 

18. In the early afternoon of the 12th of April, 2021, the mother of

the victim contacted the Knoxville Police Department which dispatched a

policeman to her residence where she made a formal complaint against the

individual complained of.

 

19. The policeman, together with other policemen, went to Austin

East High School for the purpose of apprehending the individual complained of.

 

20. The individual complained of and the policemen interacted in a

room in Austin East High School.

 

21. As a result of the interaction between the policemen and the

individual complained of, a firearm in the possession of the individual complained

of was discharged, however, the projectile struck no one.

 

22. One or more policemen discharged their firearms with the

projectile or projectiles striking the individual complained of and inflicting fatal

injuries.

 

23. One policeman suffered a serious, but not life threatening,

gunshot injury to a portion of his lower body as the result of a projectile which it

was subsequently determined was not from the firearm in the possession of the

individual complained of.

 

24. One or more of the policemen were equipped with body-worn

cameras which captured images of the interaction between policemen and the

individual complained of prior to his fatal wounding.

 

25. Numerous requests have been made to the Attorney General for

Knox County seeking the release of redacted copies of the images captured by the

body-worn cameras of the policemen at the time before and during the interaction

between the policemen and the individual complained of which resulted in his fatal

injuries. The Mayor of the City of Knoxville has requested release of the redacted

images. The Chief of Police of the City of Knoxville has requested release of the

redacted images. Three policemen who were involved in the interaction have

requested release of the redacted videos. Members of the community have

requested redacted videos. In response to these requests, the Knox County

Attorney General has asserted that the provisions of a Standing Order of this Court

prohibit the release of the requested videos and form a basis for criminal contempt

punishment against any individual or entity releasing the redacted videos. To date,

no person has been charged with any crime or offense arising out of these facts.

There is no pending criminal proceeding and none is presently rumored to be

contemplated.

 

26. Pursuant to standard procedure, the T.B.I. has instituted an

investigation into the interaction of the policemen and the individual complained

of at Austin East High School on the 12th of April, 2021. No formal report has been

issued to date by the T.B.I. although T.B.I. Director David Rausch has issued

multiple statements concerning the investigation.

 

27. The Knox County Attorney General has denied a request to

produce any records or video images recorded by the body-worn cameras of the

policemen citing Tenn. Code Ann. § 10-7-504, Tenn. Code Ann. § 38-8-311 and

the provisions of a Standing Order issued by this Court and filed on the 25th of

April, 2019. Upon information and belief, the Knox County Attorney General

instructed the City of Knoxville, through its Mayor, that it was not authorized to

release the video which was generated by cameras which it purchased and

installed for use by its policemen and which recorded the event in question and

that to do so would subject the releasing individual or entity to prosecution for

criminal contempt. The Knox County Attorney General has, pursuant to Rule

42(C)(2) of the Tennessee Rules of Criminal Procedure, the authority to seek

prosecution for criminal contempt against any individual or entity allegedly guilty

of a violation.

 

28. In its Petition, the City of Knoxville asserts in paragraph 6

thereof as follows:

 

On Monday, April 12, 2021, tragic circumstances at

Austin East High School resulted in the death of a

student at the school as a result of wounds from a

gunshot. Multiple KPD officers on the scene at the time

of the death were equipped with and utilizing body-worn

cameras, some of which captured events pertinent to the

student’s death. The facts and circumstances

surrounding this incident currently are under

investigation by the Tennessee Bureau of Investigation,

the results of which will be conveyed to the Knox County

District Attorney General.

 

29. The Petition of the City of Knoxville further states in paragraph

7 as follows:

 

The facts and circumstances surrounding the subject at

issue are a matter of great and serious concern within the

City, resulting in many requests for the City to be

transparent in responding to public concerns, including

multiple requests and demands for the release of the

body-worn camera coverage.

 

30. With regard to the Standing Order referenced herein, the

Petition of the City of Knoxville in paragraph 8 states as follows:

 

. . . Citing this Standing Order, however, the Knox County

District Attorney General has instructed the City of

Knoxville that it is not authorized to release to the public,

a properly redacted video of this event . . .

 

31. In order to provide the Court with a basis for the assertions of

the Intervenors and positions taken by them, this Motion will examine each of the

alleged reasons why the video should not be released.

 

32. First, the Knox County Attorney General relies upon Tenn. Code Ann. § 10-7-504. The prohibitory provisions of Tenn. Code Ann. § 10-7-504 relate

only to the T.B.I. and to records generated by the T.B.I. in its investigative capacity.

Those provisions bar the compelled production of any information generated by

the T.B.I. in its investigation, but do not prohibit the T.B.I. from releasing that

information. The videos from the body-warn cameras of the policemen were and

are the property of the City of Knoxville who is responsible for their creation and

maintenance. Therefore, the City of Knoxville controls the documents that are in

its possession even though copies of those documents may have been furnished to

other individuals or entities. Similarly, any copy furnished to the Knox County

Attorney General becomes the property of that office and not the property of the

T.B.I. The remaining provision of Tenn. Code Ann. § 10-7-504 relates to certain

required redactions which are not at issue here since any video requested by the

Intervenors or the original Petitioner or any other person was requested subject to

the required redactions. Therefore, any reliance upon Tenn. Code Ann. § 10-7-504

is misplaced because the Attorney General is not employed by the T.B.I., but rather

is an independent elected official.

 

33. Tenn. Code Ann. § 38-8-311 relates to investigative records of

officer-involved shooting deaths. However, subsection (a) of that statute provides

as follows:

 

. . . Notwithstanding § 10-7-504, the district attorney

general may disclose all or part of the investigative

record to the public prior to the record becoming a public

record as provided in this section. (emphasis supplied)

 

Since the provisions of Tenn. Code Ann. § 38-8-311(a) do not require a blanket prohibition of release of the information requested prior to it becoming public record at the close of the proceedings or the investigation, it is improper to assert it as a basis for nondisclosure of the videos requested.

 

34. Having disposed of the applicability of Tenn. Code Ann. § 10-7-

504 and Tenn. Code Ann. § 38-8-311, the remaining inquiry centers around the

Standing Order. As previously stated, this Court issued, at the request of the Knox

County Attorney General, a Standing Order which became effective the 1st of May,

2019. It is alleged by the Knox County Attorney General that this Standing Order

prohibits the City of Knoxville from releasing the redacted videos as requested. It

is respectfully contended that it does not.

 

35. Paragraph 1 of the Standing Order provides that videos arising

out of or becoming a part of a criminal investigation “may be furnished to counsel

for a party with respect to criminal prosecution without the redaction required

by Tenn. Code Ann. § 10-7-503 and Tenn. Code Ann. § 10-7-504. It is

respectfully submitted that the language of the Standing Order relates to the

furnishing of the attorney for a party to a criminal prosecution the unredacted body

cam video and nothing more.

 

36. The Standing Order also in paragraph 2 refers to “the

requesting party’s counsel”, again reflecting the intent of the Order to apply only

to the attorney for a party to a pending criminal proceeding in the Criminal Court

for Knox County, Tennessee.

 

37. The Standing Order in paragraph 3 again refers to the

requesting party’s counsel. Paragraph 4 of the Standing Order provides that it is

the responsibility of requesting party’s counsel to take actions necessary to ensure

the security of the disclosed video.

 

38. Paragraph 5 of the Standing Order states that the requesting

party’s counsel shall not disclose the unredacted video to any person and any

unauthorized disclosure may be treated as contempt of Court. Again, this refers

to the lawyer for a party before the Court in an active ongoing criminal prosecution.

 

39. Paragraph 6 of the Standing Order again refers to requesting

party’s counsel.

 

40. The intent of the Standing Order is described in paragraph 8

thereof which provides:

 

This Order is intended to facilitate the provision of law

enforcement videos in an efficient and timely manner

without violating the privacy concerns recognized in the

Tennessee Public Records Act (TPRA). This Order does

not enlarge or restrict the rights, obligations or authority

afforded parties to a criminal proceeding pursuant to

Tenn. R. Crim. Proc. 16 or other applicable law.

(emphasis supplied)

 

41. Further, paragraph 10 of the Standing Order states in pertinent

part as follows:

 

. . . This Order does not restrict the lawful use, disclosure,

or dissemination of law enforcement videos that have

become public record, either by virtue of being entered as

an exhibit during a court proceeding or pursuant to the

provisions of the TPRA and other applicable law so long

as such use, disclosure or dissemination does not

include any information or material that is confidential

under applicable law. (emphasis supplied)

 

42. It is, therefore, respectfully submitted that any reliance upon

the Standing Order as a bar to disclosure by any individual other than an

attorney for a party to an active ongoing criminal prosecution in the Criminal

Court for Knox County, Tennessee is misplaced and erroneous. It is, therefore,

respectfully urged that this Court recognize that the Standing Order should be

properly interpreted as applying only to a party to a criminal proceeding

presently pending in the Court and further that it is applicable only to the

attorneys for that party because they are to be furnished the unredacted video.

The Standing Order is to protect the privacy interests which may arise from the

publication of the unredacted videos. Therefore, the intent of the City to provide

a redacted copy of the videos in question which it possesses and owns is not

erroneous, is not improper and most certainly is not punishable in this Court by

contempt. It is respectfully submitted that the Court should not seek to extend

its jurisdiction and punish a non-party for criminal contempt as a result of the

good faith release of a redacted copy of images recorded by body-worn cameras

in the interests of transparency and accountability of the government to the

citizens that it serves. The threat of criminal prosecution apparently made

against the City of Knoxville and its police department does not create a basis

for prosecution for criminal contempt.

 

43. There is no pending prosecution. Of that, the Court can take

judicial notice. No charges have been levied. No indictment has been sought or

returned. No one has been placed in custody or arrested. There has been no

indication that anyone is to be arrested or charged in conjunction with the

incident on the 12th of April, 2021 at Austin East High School. It is, therefore,

respectfully submitted that this Court should clarify the provisions of the

Standing Order and their applicability and reaffirm that the Standing Order in

no way operates as a bar to the production of the requested videos by any person

other than an attorney for the parties before the Court in a pending prosecution.

 

PREMISES CONSIDERED, Intervenors request as follows:

2. That they be permitted to intervene in this action.
3. That because of the threat of prosecution for criminal contempt that could result from any release of the requested videos, this is not an academic exercise. This is a serious issue which should be resolved by the Court interpreting the Standing Order as applying only to the parties and their attorneys to an active criminal prosecution pending before the Court.

 

3 That the Court grant the relief sought by the original Petitioner, City of Knoxville.

 

Respectfully submitted, this 20th day of April, 2021.

 

_________________________________________

Richard L. Hollow, BPR No. 0000593

Attorney for Intervenors

HOLLOW & HOLLOW, L.L.C.

1. O. Box 22578

Knoxville, TN 37933

Ph. 865-769-1715

 

 

CERTIFICATE OF SERVICE

 

Comes now Richard L. Hollow, attorney for Intervenors, and certifies

that a true and exact copy of the Motion for Leave to Intervene and to Seek

Interpretation and Clarification of Standing Protective Order has been served by

hand delivery to Charme Allen, District Attorney General, 400 W. Main Avenue,

Suite 168, Knoxville, Tennessee 37902, and Charles W. Swanson, City of Knoxville

Law Director, 400 W. Main Avenue, Suite 699, Knoxville, Tennessee 37902.

 

This 20th day of April, 2021.

 

__________________________________________

Richard L. Hollow