A federal appeals court considered Monday whether to automatically halt lower court orders publicly releasing video of fatal shootings by police to prevent potential violence.
Judges on the 9th U.S. Circuit Court of Appeals panel acknowledged that the case involving a 2013 shooting of an unarmed man by police in the Los Angeles suburb of Gardena was largely moot because the video was released and widely published, the Associated Press reports.
But in considering whether U.S. District Judge Stephen V. Wilson abused his discretion by denying Gardena a stay of execution and releasing videos sought by The Associated Press and other news organizations, the court questioned if future video releases should be put on hold to offer a chance of appeal.
One judge on the three-judge panel sounded open to the idea of slowing the release of police shooting videos to avoid riots, KPCC reports.
“Some people died and a lot of people were injured and a lot of people had property destroyed in riots resulting from videos over the last two or three years,” said Judge Andrew Kleinfeld, who was first nominated to the federal bench by President Reagan in 1986. “We can’t pretend we don’t know that.”
Rarely do police shooting videos cause riots, argued Kelli Sager, who represents the Los Angeles Times. She noted when the district judge released the video of the Gardena shooting, the streets remained quiet.
“So the idea that you should never release a police video because people might be upset by it ... or therefore commit violence is not supported by the record,” Sager told the court.
She also argued the court case brought by Gardena was moot – the video had already been released.
But Gardena lawyer Scott Davenport argued the case wasn’t just about the city he was representing – that inevitably there would be more videos of police shootings in the future that would end up as evidence in lawsuits brought by families.
“I think we are going to be seeing more of these types of cases – not less,” he said. Again and again, Davenport invoked the specter of riots. At one point, he suggested police officers would become targets, as they were in the wake of the 2014 killing of Michael Brown in Ferguson, Missouri.
“We did have officers minding their own business and assassinated while walking down the street,” he said.
Sager said the law favored public disclosure of the video that was evidence in a lawsuit Gardena settled for nearly $5 million. Sager said the city failed to properly seek a stay of execution in 2015 and had presented a weak case for permanently sealing the video, the Associated Press reports.
"They simply said it's a police video and it might lead to riots even though the shooting was two years earlier," Sager said. "In fact, the record shows that didn't happen."
The videos were sought by AP, the Los Angeles Times and Bloomberg at a time when intense public scrutiny was starting to focus on police shootings nationwide. The news media argued the videos should be unsealed under a First Amendment right to access court documents.
Wilson ordered the footage released after saying it was important for the public to see whether the shooting was justified and so taxpayers could understand why Gardena paid $4.7 million to settle the case with the family of Ricardo Diaz-Zeferino, who was killed, and a friend who was wounded.
Wilson rejected a stay of execution and the videos were public before the city could get a temporary stay from a 9th Circuit judge.
Davenport said the city of Gardena realized it had lost, but said the issue was "bigger than this case" and was pursuing the appeal for other law enforcement agencies to avoid a repeat occurrence.
The three judges, however, cast doubts on parts of the appeal, saying the city had not met criteria for a stay from the trial court. They questioned the assertion that the same situation would play itself out again, which they said was an overly broad interpretation of the law.
Diaz-Zeferino was killed June 2, 2013, by police searching for a bike thief. In a tragic twist, Diaz-Zeferino was searching for the same bike — stolen from his brother — when he and two friends were stopped by police.
The theft had erroneously been relayed by dispatchers as a robbery, raising the possibility suspects could be armed.
Footage showed Diaz-Zeferino, who was drunk and had methamphetamine in his system, failing to follow police orders to keep his hands up. The video shot from two cruisers showed him lower his hands three times despite an officer yelling, "Get your hands up."
One camera showed he had his palms open and facing upward in front of him as he removed his ball cap and lowered his hands a final time. Footage shot from the side showed his right hand briefly disappear from view at his waist as shots were fired and he crumpled to the pavement.
The officers said they feared he was reaching for a weapon, though they later found he was not armed. Prosecutors said the shooting was justified and declined to bring charges.