An attorney for former Santa Fe police officers who were fired over issues raised by the takedown and arrest of a man on a Walmart parking lot last year wants a TV news reporter to reveal how he obtained police dash-camera video of the arrest.
The officers’ attorney has subpoenaed KOB-TV reporter Gadi Schwartz to give a deposition in ongoing litigation in the Walmart arrest case.
In a recent motion seeking to quash the subpoena, an attorney for KOB says Schwartz obtained the police video “in the course of performing his duties as a reporter from a confidential source.”
The motion to quash says the subpoena fails to meet legal standards for seeking information exempt from disclosure under New Mexico rules of evidence that protect confidential news sources and also violates other constitutional protections.
Many federal and state courts have crafted a “reporter’s privilege” protecting them from testifying about confidential sources or information.
The requesting party must first have “reasonably exhausted alternative means of discovering the confidential information or sources” and the information sought by subpoena must be crucial to the case, argues an attorney for KOB.
Timothy White, an attorney representing officers who were fired or otherwise disciplined in the Walmart arrest, says he believes someone released the video to tarnish the officers while the case was under consideration within the Police Department.
“Somebody tried to release this video in an effort to influence the outcome of that disciplinary process,” White said, “to try to shape the media’s or public opinion, and to back up somebody’s world view on what they saw or didn’t see in that video.”
The video of the arrest is a public record. After KOB’s report in March during which it was first shown, the Journal obtained a copy under a public records request to city government.
In July, Officers Troy Baker and Steve Cosban were fired, and two other officers – Daniel Parsons and Matt Champlin – were suspended over actions connected to the March 2010 arrest of Michael Schaefer at the Walmart lot. The officers have filed a court challenge that has bounced from state District Court to federal court and now back to state court.
The night of the arrest, police responded to a call of an alleged disturbance by Schaefer at a nearby apartment complex. The police report of the incident said that after officers pulled over the car he was riding in, Schaefer became belligerent and instigated a fight with police.
The dash-cam video shows that after Schaefer had been told he could leave the scene, he returned, and an officer tossed his wallet on the car and it fell to the ground. After an officer told Schaefer he didn’t mean for that to happen, the officer – identified in disciplinary proceeding reports as Parsons – appears to think Schaefer is staring him down and says, “Don’t look at me like you want to fight, because you will not win.”
When Schaefer responds, “I do want to fight,” officers quickly surround him and take him down. Officers can be heard saying things like, “Oh, you do?” and “Really?” During the takedown, one officer says, “You’re going to jail.”
Charges were subsequently dropped against Schaefer, who has threatened to sue the city over injuries he says he suffered. The arresting officers’ report of the incident says Schaefer cut his ear during the takedown and, while in police custody, “voluntarily hit his head on the wall.”
White and the Santa Fe Police Officers Association have blasted Police Chief Ray Rael’s determination that the officers acted inappropriately, citing a prior Internal Affairs investigation that, according to the officers, cleared the officers.
Rael said over the summer that his own review of the case “did not support” the conclusion of the original IA investigation, which was conducted under the administration of then-Chief Aric Wheeler, now a police captain.
Rael fired Cosban and Baker for allegedly falsifying reports on the encounter with Schaefer. He agreed with the findings of an investigation by Deputy Chief Gillian Folmar-Alessio that says Cosban and Baker prepared reports that portrayed “a different sequence of events” than what was recorded on the police car camera. She said Schaefer was incorrectly characterized as aggressive or menacing and said similarities among various reports suggested “possible collusion” to support “a bad arrest.”
Cosban’s report says Schaefer “came at” an officer as if he were going to strike the officer, and Baker reported that Schaefer “raised his hands like he was going to strike” the officer.
White questions the timing of the video’s release, saying it occurred within days of Rael becoming interim chief to replace Wheeler in March.
White also maintains that the person who gave the video to the reporter “violated the city’s policy” of not releasing items that are tied to “confidential and personnel matters,” such as Internal Affairs investigations.