Who Watches the Watchers?

The pain 18-year-old Brittnie Andrews suffered on October 13 is beyond understanding. In the space of a few seconds, she saw her mother shoot her sister, then—a heartbeat later—watched Sparks Police Department officers mortally wound her mother, Monica Ritchey.

“I heard a gunshot, and I saw my sister [Darcie Latham] fall, and I thought, ’Oh my god, she just killed her,’” the young but decidedly forthright woman said. “And then the cops started to walk forward, and I heard shots. They were shooting my mom. Then I heard, ’Keep your guns on her,’ and I realized there was a second set of cops on the other side of my mom. … After they had shot my mom, I heard them saying, ’Keep the guns on her, her hand’s moving.’”

Sparks Police officer Kim Hodge and other officers loaded Latham and Andrews into Hodge’s cruiser. “And that was it,” said Andrews. “We went around the corner and waited for an ambulance.”

It was a crime scene of the sort that makes news producers and editors drool—police and perps with guns blazing, a family in distress, blood in the street and sudden death in quiet suburbia. The only problem was that the local news media was asleep at the press, and apparently nobody—not the newspapers, not the television news stations, not the radio stations, not the all-seeing internet—got this story right. They didn’t even bother to find out or to report the victim’s names. Here’s KOLO TV’s story. It’s only remarkable by the volume of inaccurate information reported that was never corrected. [Editor’s note: This story is developing, and Darcie Latham’s attorney, Richard A. Salvatore, alleges that police—not Ritchey—shot Latham. See Who shot Darcie Latham?]

Ritchey suffered from severe mental illness. In fact, the police were called to help because she was suicidal. How law enforcement responds to mentally ill people with guns is one facet of the complex issue regarding police use of deadly force in the United States that will be covered in stories produced throughout the coming year. But because any scrutiny of public policy must begin with the relationship between government and its watchdogs, this first article examines the breakdown in the communications between public officials and the media that causes this community to remain ignorant when a peace officer does the most consequential thing one can do: Kill a person in the line of duty.

The findings of this investigation can be stated succinctly: In Washoe County, no local agency tracks who was killed by law enforcement, why they were killed, or whether the killing was legally justified. While agencies do internally investigate each other’s incidents of officer-related shootings, in Nevada, there is no government board to review police-related homicides, and the findings produced by an ad-hoc tribunal called the Officer-Involved Shooting Board and its investigative arm are not public. The district attorney’s office has determined that all incidents since 2006 when the Board was formed—at least those that were produced—were legally justified. There is no state review of police-related homicides, and there’s no citizens’ review of the investigations to say any different.

Again, the proof of an information breakdown is beyond anecdotal. The Monica Ritchey incident was not the first time police killed someone in this community without media reporting the dead person’s name. Another example took place on Sept. 5, 2011, when Greg Larson was shot by Reno Police. The media salivated over the killing and the events surrounding it with almost all the local news outlets reporting the gun battle on the night of the shooting, but when it came down to a crucial fact, the “who” of the five W’s and an H, they just … forgot. No thoughtful follow-up to the rush to report the breaking news. It’s not like the RN&R reported it, either. And to make the omission all the more inevitable, the police agencies themselves don’t release this information in a meaningful way through publicly available or archived announcements.

It’s not censorship. It’s not a “news blackout.” It’s just an antiquated method for the dissemination of important information by government to the people.

If the news media truly has a role in this country—to keep citizens informed of government actions in order that they can participate more knowledgeably in the democracy—then one of its most basic responsibilities must be to tell people when the government kills somebody. However, changes in government transparency policies that have developed since the terrorist attacks of Sept. 11, 2001, have undermined the media’s ability to gather and disseminate the news. Sure, there was also the economic collapse and the internet effect that decimated newsroom staffs, but the internet also made news gathering and information publication much easier.

No, the real change is that government got more secretive, and for many bureaucrats, those reporters who would inform the public of government’s day-to-day business are considered a threat.

In Nevada, public records are ruled by Nevada Revised Statute 239. That statute essentially says that all records created by government are to be open and available to the public, unless exceptions are specifically written into the law. There are reportedly around 50 legal exceptions, everything from reports of senior citizen abuse to reports of child abuse to insurance commissioner investigations. Many of those exceptions seem designed to protect the guilty from prying eyes.

In practice, public records access is dominated by a Nevada Supreme Court decision, Donrey v. Bradshaw. According to the Nevada Press Association, “That case was brought by KOLO-TV in an attempt to open records of a closed criminal investigation of brothel owner Joe Conforte; they succeeded, but they also succeeded in opening a Pandora’s Box which has been interpreted by government bureaucrats as giving them essentially unfettered discretion to deny access to records at whim.”

In Donrey, the Supreme Court created the so-called “balancing test.” The court said that although criminal investigative records were excepted by law, the need for public access could be balanced against the reasons for secrecy. For a good many years, agencies used this court case in the way justices intended, as a way sometimes to open records that were closed by statute.

First Amendment attorneys and reporters, though, tell a different story. In intervening years, that balancing act was interpreted and then reinterpreted as to mean that government lawyers or agencies were allowed to balance whether nosy journalists and citizens benefit by knowing all the facts. While the Nevada Supreme Court and the Legislature have steadily enhanced Nevada’s sunshine laws, at the agency level it hasn’t happened.

“The balancing test is the worst decision that ever came out of an open-records case,” said local investigative reporter Frank X. Mullen.

Currently, when addressing public record requests, government agencies often first exclude any exceptions, then they decide whether the public needs to know the contents of the remaining requested documents. Sometimes, it appears their decisions are arbitrary or designed to protect government from embarrassment or legal consequences. Sometimes it’s just because they find the information “distasteful.” That’s why taxpayer-funded lawyers are needed for the simple task of copying and handing over documents to journalists. After all, even though the 1993 legislature passed a law providing for an award of attorneys’ fees to people who successfully sue the government for records, who can afford the upfront costs of suing City Hall?

Well, the Reno Gazette-Journal can. It’s owned by the nation’s largest newspaper corporation, Gannett. The corporation’s deep pockets has put the Gazette-Journal at the state’s forefront for media lawsuits for public access to public documents.

Scott Glogovac has been the principal attorney for the Gazette-Journal for some 20 years. He disputes claims by local bureaucrats that the state’s courts have increasingly supported government secrecy. In fact, almost every time the newspaper has gone to court for the release of public documents, it’s won—if not at the trial court level, then at the Nevada Supreme Court.

“The law is actually trending toward more openness both in what the statute says and in terms of the jurisprudence of the Nevada Supreme Court,” he said, also mentioning that Donrey v. Bradshaw is an obsolete precedent. “So it’s trending toward more openness, most definitely.”

Glogovac was reticent to claim trophies for the wins he’s had for public openness, but the Public Employee Retirement System (PERS) data case and the Jim Gibbons cases—the emails and the concealed weapons permit data—set key precedents that required agencies to state reasons for withholding in cases beyond just citing the statute. He is not reticent, however, to draw a line in the sand.

“When the government agency is just dead wrong, we fight them.”

With regard to the release of information about people who are killed by police, Reno, Sparks, Washoe County Sheriff’s Office and the Washoe County District Attorney, have inconsistent practices of keeping and releasing records. Around the turn of the year, the Reno News & Review sent the agencies public records requests that said in part:

“[The RN&R is] requesting copies of reports that show details regarding incidents of fatal encounters with law enforcement in the state of Nevada, particularly Washoe County, between Jan. 1, 2000 and today’s date. … The specific information [we’re] looking for includes: decedent’s name; age; gender; race; date of death (month/day/year); location of death (address, city, state, zip code, county); agency(s) responsible for death; cause of death (e.g. gunshot, vehicle, Taser); a brief description of the circumstances surrounding the death; official disposition of death (justified or other); and whether the decedent exhibited symptoms of mental illness.”

Each of the jurisdictions responded to the request differently, but none followed the law as written. To be fair, Sparks Police Department went further than the law requires. All reports in this story can be found in this folder: http://bit.ly/1jRLHGp.

The records request was sent to Washoe County Sheriff Mike Haley on Dec. 12. A representative of a different agency, Deputy District Attorney Mary Kandaras, responded on Jan. 2—Nevada law requires a response in five days—writing, “I expect to have this information (along with in-custody deaths and any other WCSO death encounters) to you next week.” On Jan. 14, she received the public records request to the district attorney and promised the records no later than Jan. 24. On Jan. 30, she promised the records by Feb. 5. On Feb. 6, she turned over a total of 18 sheriff’s office records dating back only to 2007, with eight of them irrelevant to the request because they didn’t relate to fatalities. No records from the sheriff’s forensic lab were produced, except as attached to certain of the investigations, despite the fact they were specifically requested.

For the incident documents between 2000 and 2007, she wrote, “To provide redacted reports dating back to 2000 will require additional use [of] personnel and resources. It will require at least 6 months of response time. [http://bit.ly/1dCd2rV]” No explanation was forthcoming as to why the first seven years would take six weeks, and the second, six months.

Journalists say it’s a common practice among government offices to delay production of documents far beyond any practical deadlines in order to avoid scrutiny. The attention-deficient news media simply moves on to the next hot story.

To add insult to injury, the records produced by the district attorney’s office were improperly redacted (info withheld), with specific information about the individuals killed by police removed, including age, race, sex, with only the vaguest support as to why information was withheld. None of the records contained the crucial information as to whether the homicides were considered “justified.”

On Feb. 7, the district attorney reports were sent by email. Peculiarly, there were files referencing only 14 of the 18 fatal shootings by local law enforcement since 2006, when the OIS shooting “protocol” began. This is because, according to the protocol, bit.ly/1ee5bQC, which is shared among the local agencies, not all officer-involved shootings are investigated. Apparently, no records at all were kept before that.

One of the documents, page 25—dated July 15, 2011, and signed “Dick”—found legal justification for the fatal shooting of Charles Bishop by RPD on Oct. 28, 2009, even stating the manner of his death: “struck in the right side of his chest with a .223 caliber bullet which resulted in his death.” Other documents, though, like the incident report submitted by the sheriff’s office, don’t support the assertion of fatality, page 57. It’s difficult to imagine how District Attorney Richard Gammick could have read the full report and still written a justification for a fatal shooting, since nobody died.

A call to the Reno Police Department’s record division to verify that the shooting did not end in death resulted in the information that if it related to an officer-involved shooting, it’s a “locked file.” Gammick was also emailed links to the documents and asked to comment on the discrepancy but did not.

City of Reno Deputy City Attorney Mark Dunagan also had issues with production of the documents. He initially settled on producing a spreadsheet that contained as much information as was easily and “objectively” available. He, too, promised several delivery dates, and he was sardonically concerned that Reno can’t charge for the time spent gathering documents until the Reno City Council comes into line with Nevada law. Still, when it became apparent after more than a month that things like mental state or a brief description of circumstances would require judgment calls on the part of record keepers, he asked that individual cases be requested. It only took two days for the city to supply the additional document requests, but like the sheriff’s office, the city of Reno had no records as to whether the killings were legally justifiable.

And neither did Sparks. City of Sparks Police Chief Brian Allen responded to the Jan. 3 records request on Jan. 5, handing it off to Teresa Wiley, the city’s public records administrator. She responded with 544 pages of redacted police reports on Jan. 30. One item of note: The complete Sparks Police record of the killing of Monica Ritchey—which is currently under investigation by the Washoe County Sheriff’s Office—was made available, although partially redacted as allowed by law. (A nickel a page made a total of $27.20.) It’s a perfect example of how the Donrey “balancing test” was intended to be applied.

Kandaras and Dunagan both pointed out that this was a difficult request to fill. The problem is there is no file folder tucked away in a cabinet somewhere labeled “People killed by police.” Some may be filed under “Officer-Involved Shooting” or “Bicycle-Vehicle Collision” or even “Strangulation causing death,” but there is no single storage place or easy way to access what’s in another department’s files. Each agency has its own case number filing system. For example, in Scott Demars’ case, SPD’s is 09-12557, RPD’s is 09-36851, WCSD’s is 09-11444. The “09” is the year.

Add to that the historic change in the medium of record storage, and it’s no surprise that information is so difficult to find, copy and turn over. Law enforcement has the reputation for being slow to adapt to technological changes, and it has only been in the last 20 years that agencies have more fully embraced digital storage, databases that allow cross referencing, and internet communications.

Despite the fact that agencies never investigate their own uses of deadly force, neither do they keep copies of other agencies’ investigations with their own records—“each governmental agency is responsible only for the maintenance and dissemination of the records it generates,” as Kandaras wrote—and journalists must query every agency in order to get a more complete picture.

Not to put too fine a point on it, but it’s likely an outside review board would have caught the life and death discrepancy in the Bishop matter, and that sometimes, it can be more than two years between the fatality and the district attorney’s determination of legal justification. Sometimes, the investigations take longer; for example, according to Kandaras, one of the documents withheld because the investigation is ongoing was the non-fatal shooting of Chester Ray Hopkins on Sept. 24, 2010—three and a half years ago.

One of the most respected names in local journalism, Frank X. Mullen, has been an investigative reporter in Northern Nevada for decades. Working for the Reno Gazette-Journal, he broke and covered some of the biggest investigative projects the community has seen, including the Sierra Army Depot’s burning of toxic materials, the Fallon leukemia cluster, Nevada’s deadliest doctors, and the animal abuse allegations at the University of Nevada, Reno’s farms. Now he works as a freelancer and an instructor at UNR’s Donald W. Reynolds School of Journalism. He’s seen the changes in how agencies respond to public records requests. Delay tactics, arbitrary redactions, false claims of proprietary information or even “national security” have been used to prevent him getting at documents that, at most, reveal incompetent government practices.

“They follow the letter of the law by acknowledging your request, but then they come up with some lame excuse to delay it, and under NRS 239.010, the lack of staff or people on furlough or whatever—that’s not an excuse to not produce documents,” Mullen said. “What 239 basically says is, the only excuse to not produce a document or to refuse to produce it is if it is already exempted by another statute. That’s all the law says, really. Everything is assumed to be open unless the law specifically says otherwise.

“All these bullshit excuses are not excuses at all because the law does not allow them. It plainly says if it’s open, you can pick it up during business hours, you can request it, they can charge a reasonable fee. The law is very specific on stuff, but nowhere in it does it say, ’Oh, just in case somebody is understaffed, they don’t have to produce these in a timely manner.’ And yet that seems to be occurring. For state agencies, it’s at the bottom of their priority list.”

Some reasons for that are wholly understandable. There is understaffing. There are furlough days. Employees don’t consider public document research a normal part of their routine. But ultimately, the reason is more prosaic.

“It’s not like they’re proud of this stuff,” Mullen said. “If a journalist is asking for records, chances are that these records in some way will not make whatever agency look good. … It’s a circle-the-wagons mentality, and I think that it’s gotten to the point that no matter what you ask for, it immediately rings the circle-the-wagons bell.”

And it’s that circle-the-wagons mentality that results in Northern Nevada sometimes not knowing who fell under law enforcement officers’ gunfire.