Hot Topics in Law Enforcement

Panel Discussion

Eddie Blair, Attorney, Huntsville

Megan Zingarelli, Attorney,

Madison

DeWayne McCarver, Deputyy Chief of Police, Huntsville

David Canupp, Attorney, Greg Burgess, Attorney,

Lanier Ford

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PANELISTS

Eddie Blair, Esq., City of Huntsville

Greg Burgess, Esq., Lanier Ford

David Canupp, Esq., Lanier Ford

Deputy Chief Dewayne McCarver, HPD

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TODAY’S TOPICS

•1. MENTAL HEALTH CRISIS RESPONSE

•2. PROTEST MANAGEMENT & RESPONSE

•3. CITIZEN ADVISORY GROUPS

•4. BODY CAMERA USE & DISCLOSURE

•5. RESPONSE TO POTENTIAL SUICIDES

MENTAL HEALTH CRISIS RESPONSE“The Memphis Model” Community Mental Health Officers & Co-Responder Program

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RELEVANT LAW• Authorization to appoint community mental health officers is in §22-52-91(a) of the Code of Alabama.

• Ordinance to incorporate authority granted in the state code:

• Madison’s City Code gives authority to the Chief of Police to appoint CMHOs (§26-58 Madison City Code).

• Training & experience required in §22-52-90:

• “A community mental health officer shall possess a minimum of a bachelor's degree from an accredited college or

university in social work or a related field or, with the approval pursuant to findings of the judge of probate,

any equivalent combination of education and experience; at least one year of experience in social work;

knowledge of the principles, practices, and techniques of social work as they apply to crisis intervention…” (§22-

52-90(2), Definition of Community Mental Health Officer).

PROTEST MANAGEMENT & RESPONSESCENES FROM HUNTSVILLE & MADISON 2020

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RELEVANT LAW • First Amendment cases:

• Reasonable time, place, and manner regulations are allowed for protecting public streets and sidewalks.

• Shuttlesworth v. Birmingham, 394 U.S. 147, 152 (1969)(“Governmental authorities have a duty and responsibility to keep

their streets open and available for movement.”).

• Frisby v. Schultz, 108 S.Ct. 2495 (1988)(Regarding picketing in residential neighborhoods, “The State's interest in protecting

the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society…”).

• Event permitting:

• What’s in your City Code? Madison requires a parade/race permit (Article V, Madison City Code)

• What’s on the books for when things get bad?

• Disorderly conduct as a criminal offense (§13A-11-7).

• “Disorderly or contemptuous behavior” in a Council meeting (§11-43-163).

• Pending Legislation (HB2/SB3 Pre-filed for 2022—Addresses assault against first responders, riot and inciting to

riot, defunding of law enforcement, etc.)

CITIZEN ADVISORY GROUPS

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RELEVANT LAW • The cities of Madison and Huntsville adopted ordinances via general police powers to establish these committees.

• Unlike other boards authorized in the Code of Alabama, they are NOT incorporated boards with legislative, purchasing,

investigative powers, etc.

• They ARE subject to the Open Meetings Act, Open Records Act, Ethics laws, etc.

• Role defined by ordinance:

• Inform police about problems they see in the community and potential ways to tackle them.

• Recommend programs or policies that can improve and enhance cooperation with the community.

• Keep the Chief of Police, Mayor, and City Council apprised of police department actions that create community concern or

controversy.

• Provide advice to the police department regarding police services, both crime related and quality of life related.

• Provide advice for additional training in areas such as diversity, community policing, procedural justice, and crisis

intervention training.

• Power to compel document & recording disclosure?

• Huntsville Police Advisory Committee review of summer 2020 protests opened up some investigative records to an outside

law firm.

• City of Madison and Madison County asserted the law enforcement investigative privileges.

ROLE OF COMMITTEE

• To contribute the perspective of the citizenry to the police.

• To coordinate for better relations between the public and the police.

• Not to interfere with the administration of proper police activities.

• Not to become entangled with litigation and lawsuits brought by police.

• Not to establish policy for cities, but to advise the city on concepts and ideas.

• Practice Tip: Train your committee members!

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BODY CAMERA USE & DISCLOSURE

RELEVANT LAW • §12-21-3.1(b): “Law enforcement investigative reports and related investigative material are not public records.

Law enforcement investigative reports, records, field notes, witness statements, and other investigative writings or

recordings are privileged communications protected from disclosure.”

• Stone v. Consolidated Publishing Co., 404 So.2d 678 (1981) (“Recorded information received by a public officer in

confidence, sensitive personnel records, pending criminal investigations, and records the disclosure of which would be

detrimental to the best interests of the public are some of the areas which may not be subject to public disclosure.”)

• Courts must balance interest of citizens and government efficiency.

• AG Opinion No. 97-00043 lists three reasons for keeping police reports confidential: To protect investigations, to protect

and encourage witnesses, and to protect the constitutional rights of those ultimately charged.

• Closed files stay closed! “Even ‘closed’ cases could be re-opened at any time, and, in any event, the investigations of earlier

cases often throw light on new cases. Similarly, 'minor' cases often throw light on major crimes. See, for example, Stone v.

Powell, 44 L.W. 5313, 5314 (1976), wherein vagrancy arrest under a Nevada Town ordinance solves an earlier murder in

California. Thus, in order to protect ongoing or future investigations, a police department is well justified in keeping its

investigative reports confidential.”

• Also see §32-10-7 and U.S.C.A. §2721 regarding releases of accident reports and personal identifying information.

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INTERACTION WITH OPEN RECORDS ACT• Hot off the presses! Lagniappe Weekly v. Mack (September 24, 2021): Alabama Supreme Court holds that §12-21-

3.1(b) is a statutory exception to the Open Records Act.

• The Request: “All of the records related to the shooting of Jonathan Victor on May 12, 2017, including but not limited to dash

cam, body cam, and third party video; the audio from any 911 calls or radio communications; photographs from the scene;

autopsy records; and communications such as emails, text messages, and other forms of messaging.”

• Majority opinion: Even if not officer work product, it’s “related investigative material” (911 call, cell phone video, etc.). The

court declined to decide whether it mattered if the investigation was pending.

• Concurrence: Investigative material not within statutory definition of “public writings.”

• Dissenting opinion: Chief Justice Parker favored narrowly construing any ORA exceptions. “Related investigative material

includes only records, created by law enforcement officers, that reflect their efforts in an investigation. It does not include

records that merely document an incident or records that are merely part of a process of observation and information

collection.”

• Does the person or firm making the request live in the State of Alabama?

• See McBurney v. Young, 133 S.Ct. 1709 (2013).

• But see AGO 2001-107.

WHAT’S NEXT?• Action in Montgomery?

• Open Records Act amendments, which would have the effect of opening up law enforcement files that are not

“open and active,” have been proposed in prior legislative sessions (SB57 in 2020).

• HB 5 (pre-filed for 2022) addresses, in part, a procedure to determine whether, to whom, and what portions of

law enforcement recordings may be disclosed.

• Looking at other states:

• Some classify as an investigatory record, and will prevent disclosure of footage if disclosure would interfere

with an investigation; or if disclosure would reveal sources/techniques, identities if accused but not charged,

identities of assault victims, juveniles, etc. (New Mexico, Louisiana, Idaho, New York, etc.)

• Georgia discloses to next of kin, criminally accused, or attorney with sworn affidavit that a civil case is

forthcoming.

• California disclosure identity of crime suspects and biological characteristics. Withhold only if harm

outweighs public interest, and harm cannot be mitigated by redaction.

• Some states do not have any law on point (Hawaii, Montana, Iowa, South Dakota).

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RESPONSE TO POTENTIAL SUICIDES

• DARBY CASE:

• DISTRICT ATTORNEY VS. CITY OF HUNTSVILLE

• TRAINING PROGRAMS VS. CRIMINAL LIABILITY

• CRISIS INTERVENTION TRAINING

• BODY CAM DISCLOSURE

RELEVANT LAW

• Training implications:

• ALEA and AG on training officers to respond to suicide calls.

• New SCOTUS Case:

• Caniglia v. Strom, 141 S. Ct. 1596 (2021) (Community caretaker function was not a license to enter

suicidal man’s home and take his weapons without a warrant, even though wife asked police to conduct

a welfare check.)

• State Code:

• Uses of force are justified to prevent a suicide (§13A-3-24(4)).

• It is a Class C felony to assist someone with a suicide (§22-8B-4).

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QUESTIONS?

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