Texas AG to Bell County Attorney: Release Grisham police dashcam video, audio or file suit

With an Oct. 29 Open Records Letter Ruling issued by the Texas Attorney General’s Office ordering the office of Bell County Attorney Jim Nichols to release “the dash cam video and 911 call pertaining to the arrest of a named individual,” a new dilemma and increased taxpayer expense appears at hand in the county’s “right fighting” prosecution of U.S. Army Master Sgt. C.J. Grisham.

The arrest

Grisham was arrested March 16 when a 10-mile hike he and his 15-year-old son were on as part of a Boy Scout badge project was interrupted by Temple Police Officer Steve Ermis responding to a non-emergency report of a couple walking west on Airport Road, an area on the outskirts of Temple. The caller termed an individual carrying some kind of gun as “odd.” The caller further noted the individual was carrying the weapon, but not waving it around.

The encounter quickly escalated and Grisham, a well-known military blogger, captured a large portion of the exchange on cellphone video which quickly went viral. His resisting arrest charge has since been downgraded twice and now stands at a Class B misdemeanor interfering with a peace officer while performing a duty charge. Potential punishment: a fine not to exceed $2,000, confinement in jail for a term not to exceed 180 days or both fine and confinement.

Upon his arrest, Grisham was carrying a pistol for which he had a Texas Concealed Handgun License and a rifle. Texas has no state law against carrying a long gun in public.

The prosecution

A mid-October four-day trial presented an interesting view of Bell County legal gamesmanship and created many new questions regarding judicial conduct as well as the county’s approach to justice and use of taxpayer funds. After ending with a deadlocked jury and mistrial called, a new trial is scheduled Nov. 18.

Since Grisham’s arrest, the police dashcam video has been an issue. While the widely-viewed Grisham video documents much of the encounter, opening seconds of the Temple police dashcam video establish the initial demeanor and actions of both Ermis and Grisham while also providing context for what’s seen in the Grisham video.

As the case gained national attention, the police dashcam video – generally considered public information and routinely released in high-profile, ongoing cases – was requested from the city of Temple by numerous media concerns and interested parties. City officials sought and received from the attorney general’s office a ruling to withhold the video.

The city seemed especially resistant to the idea of citizen and other online journalists’ information requests. City of Temple Deputy City Attorney Nan Rodriguez told one blogger it is “the public which is precisely who is not to have access to that information – precisely.” In further emphasizing the point, she said, ““you are the reason that the thing is not public – you are the reason – you and every one of your ilk.”

During this time, the Bell County Attorney’s Office was also withholding the video from Grisham’s defense team despite the law, specifically Brady v. Maryland, requiring release of such evidence. The county attorney’s refusal prompted a mid-May hearing which generated expense for taxpayers and for GrishamVisiting Harris County retired Judge Neel Richardson ordered the Bell County Attorney’s Office to release two police videos and an audio recording of the call which initially brought Temple police officers in contact with Grisham. However the release, the judge ruled, was only for use by Grisham’s defense team specifically noting it not for dissemination to the press or the public. This ruling is likely to surface in response to attorney general’s decision.

The open records ruling

The Open Records Letter Ruling discusses how the county had previously received a decision in which the attorney general’s office allowed withholding of the information at issue. The ruling says that previous determination can still be relied upon as the office has “no indication there has been any change in the law, facts, or circumstances on which the previous ruling was based.”

It is unknown if the materials having been played in open court both during a late July pre-trial hearing and during the October trial might constitute a “change.” During courtroom exhibitions of the video, county prosecutors were diligent in efforts to restrict court spectators’ (i.e., the public’s) view of the video instead working to ensure visibility as needed only to designated court personnel, witnesses and/or the jury.

The ruling then addresses “the county attorney’s office’s procedural obligations” under the Public Information Act. It details those obligations pursuant to Texas Government Code section 552.301(e) specifically noting the county’s failure to submit a copy of the written request for information.

With that, the ruling says such non-compliance results in, per Texas Government Code section 552.302, “the legal presumption the requested information is public and must be released unless a compelling reason exists to withhold the information from disclosure.”

It further states: “If you believe the information is confidential and may not lawfully be released, you must challenge this ruling in court pursuant to section 552.324 of the Government Code.”

Bell County now appears to have three options, two of which are likely to generate significant additional taxpayer expense in the pursuit of Grisham’s case.

The first no-further-cost-to-taxpayers option is to release the requested materials. The second is to resist this informational release by filing a taxpayer-funded lawsuit in Travis County within 30 calendar days. The attorney general’s website notes, however, that to receive “the full benefit of such a challenge, the governmental body must file suit within 10 calendar days. Id. § 552.353(b)(3).”

A third option is for the county to offer no response. Non-action would then shift any next steps to the attorney general or requestor. Per the website: “If the governmental body does not file suit over a ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce the ruling. Id. § 552.321(a).” In taking this approach, the county would prompt new expenses to both Bell County and state taxpayers should the attorney general’s office file a suit. Should the requestor take action, public funds and resources would be required in the county’s response.

Conclusion

Governments have responsibility for being accountable to taxpayers. Taxpayers have every right to know how their hard-earned dollars are being spent. In this area, Bell County governments seem transparency challenged. The Grisham case appears more a clash of two tempers than any commission of a substantive crime. Actions during its course suggest public officials’ desire to maintain the gap between accountability/transparency and the public’s right to know. The county’s response to this ruling will be telling.

Lou Ann Anderson is an information activist and the editor of Watchdog Wire – Texas. As a Policy Analyst with Americans for Prosperity – Texas, she writes and speaks on a variety of public policy topics. Lou Ann is the Creator and Online Producer at Estate of Denial®, a website that addresses probate abuse via wills, trusts, guardianships and powers of attorney as well as other taxpayer advocacy issues.

Share
Commentary, Featured