The state Supreme Court ruled Thursday that the Little Rock Police Department has to release the reports a police officer wrote about incidents when he used force.
The department arguedthat the use-of-force reports are exempt from the state’s Freedom of Information Act, and it would not release them to an attorney representing a man who was involved in a violent confrontation with an off-duty officer.
Chris Erwin was arrestedin October on misdemeanor charges after an altercation with Lt. David Hudson outside Ferneau Restaurant in Little Rock.
Hudson was working security at the restaurant and was not on duty at the time. When Erwin refused to leavea private party there, a struggle ensued, according to the police report from the incident.
A video that shows Hudson striking Erwin in the face circulated in various media in November.
Keith Hall, Erwin’s attorney, asked for complaints and departmental records relating to Hudson, but excluded from the documents he received were use-of-force reports, or narratives written by officers who are involved in incidents or arrests in which they had to use physical force.
Pulaski County Circuit Judge Wendell Griffen ordered the reports to be released in November, but the Supreme Court granted Police Chief Stuart Thomas’ request for an emergency stay and kept the reports underseal.
They were released Thursday to comply with the court’s ruling.
The department had argued that the reports did not have to be released because they were created so that supervisors could evaluate whether the police officer performed his duties in accordance with department policy. As such, the department argued, the reports are employee-evaluation or job performance records that are exempt from the Freedom of Information Act.
Justice Robert Brown wrote in the court’s unanimous opinion that the court “liberally” interprets the act “to accomplish its broad and laudable purpose that public business be performed in an open and public manner,” and generally reads it to favor disclosure.
Arkansas’ Freedom of Information Act provides for disclosure of public records but allows “employee evaluation and job performance records” to be held back in some circumstances.
But the law does not define employee evaluation or job performance records.
Brown wrote that the Legislature created the exemption to protect employee privacy and the employee evaluation process.
These reports are prepared routinely every time force is used and do not always become part of an investigation. They also don’t contain any comments about the officer from supervisors, he noted.
“These reports are created by the police officer, not by a supervisor, and are a routine narrative account of the officer’s actions during a specific incident,” he wrote.
“The fact that these reports are sometimes used by supervisors later on to evaluate a police officer’s performance and in preparing their own incident reports does not transform the initial reports into evaluations or job performance records,” Brown wrote.
Chief Justice Jim Hannah wrote in a concurring opinion that he did not think the department met the burden of proof to show that the reports should be exempt.
“Nothing presented indicates that the creation of the Use-of Force file or its review constitutes an employee evaluation or generates job-performance records,” he wrote.
Thomas Carpenter, the Little Rock city attorney, said he wanted to look into how broad the ruling was before deciding whether to ask the justices to look at the case again.
“The evaluation processis still protected. So I’m not sure it’s that far-reaching an opinion, and the fact that they finally gave some definition as to what constitutes an employee evaluation record was helpful.”
Police spokesman Lt. Terry Hastings said the department complied with the order and would re-evaluate its policies going forward.
The department released four reports Hudson had prepared about incidents in which he used force, dating back to 2006. Two of them described altercations outside Ferneau, one of which was the run-in with Erwin.
In his account of the October incident with Erwin, Hudson wrote that when Erwin continued to refuse to leave the bar, Hudson grabbed him and advised him that he was under arrest.
“Mr. Erwin did not attempt to strike me but continued to struggle to get out of my grasp as I gave him orders to get on the ground,” Hudson wrote. “The struggle went into a corner behind a chalk board and continued out to the sidewalk where at that time I realized he was not going to comply and I struck him several times in the facial area.”
Hudson has been the subject of two complaints over excessive force. One was ruled justified by department officials, and the other was dropped by the complainant, according to department records.
Hall said the use-of-force reports provided information beyond what was already available in other documentation.
“Now, if the cop’s got a history, we can get to it and make you answer for it in court,” he said.
“It helps us tremendously because it shows a pattern.”
Erwin’s criminal trial on charges of criminal trespass, resisting arrest and disorderly conduct is next week.
At the Supreme Court, the case is 11-1199, Stuart Thomas v. Keith Hall.