ACLU of Arizona sues Phoenix police for use-of-force records from Trump rally in August

Megan Cassidy
The Republic | azcentral.com
Protesters were hit by gas from Phoenix police outside Phoenix Convention Center against President Donald Trump visit in Phoenix on Aug. 22, 2017.

The American Civil Liberties Union of Arizona is suing the Phoenix Police Department in a bid to collect public records regarding the agency's use of force on protesters during a President Trump rally in August. 

The suit filed Tuesday claims ACLU of Arizona submitted a public-records request to the agency following the incident, but has yet to receive these documents. 

“The Police Department’s story about how and why they used excessive force against the protesters has changed over and over again,” ACLU of Arizona staff attorney Darrell Hill said in a statement. “Under the law, the public needs to be able to promptly see the Police Department’s own records so that we can judge for ourselves whether officers acted appropriately. We have a public records law so that we can all monitor the performance of government officials.”

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Phoenix police Sgt. Jonathan Howard said city officials couldn't specifically comment on pending litigation, but said the department's professional standards bureau was continuing to review and process an "immense amount of records." 

"It has always been our intention to release the review and associated records as quickly as possible," he said. "We anticipate the review will be completed within the coming weeks."

A largely peaceful protest outside a Trump rally Aug. 22 in downtown Phoenix ended in chaos, as police deployed pepper spray balls and flash bangs against the crowd of thousands.

Phoenix police Chief Jeri Williams said officers were forced to respond after a rowdy pocket of protesters began throwing objects and spraying gas at police. But many of the protesters believed the police reaction was excessive, and said they were given no warning to disperse. 

In a statement, ACLU of Arizona Legal Director Kathy Brody said the organization received "many, many complaints" after the protest. 

"The department failed to protect the First Amendment rights of demonstrators that night," Brody said. "Now, the public deserves to see the critical records documenting the Phoenix Police Department's actions."

The suit asserts that Phoenix police officials have acknowledged they have gathered records that would satisfy the ACLU's requests, and have used this information to push back against criticism. 

Days after the incident, Phoenix police played for reporters a video that appeared to show a group of black-clad demonstrators lobbing objects at police. On Aug. 28, the ACLU requested "all video recordings" police had obtained of the rally.

But police officials have refused to provide these records until they complete an "after action report," according to an email included in the lawsuit. This report is scheduled to be completed by the end of the year. 

ACLU attorneys say this stance runs afoul to the state's public records laws, which demand government agencies produce records in a timely manner. 

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"The Department may not under the Public Records Law refuse to promptly release public records in its possession so that the public may monitor its actions, while at the same time using those same records to rebut public criticism of the Department's actions," the suit states. 

Though Arizona statute requires agencies furnish public records "promptly," it does not lay out a specific deadline. 

This omission was intentional, said Dan Barr, a Phoenix attorney who specializes in constitutional and media law. 

"It was done that way purposely to be a case-by-case determination, depending on the complexity and confidentiality of the records requested," he said. 

The fact that police are still compiling the "after-action report," however, does not provide a legal basis to delay the records' release, according to Barr.

"The documents and video exist now, and nothing the city of Phoenix does in investigating them will change the character of those documents," he said. "So they should be produced in short order."

Among the requests in the suit filed in Maricopa County Superior Court, the ACLU asked a judge to order police to release the records and to declare that the agency has "failed to perform its duty" as required by public records law. 

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UPDATE: How many people were in downtown Phoenix for Trump rally, protests?