Sep 2, 2015 9:43 PM
Decision to make police shooting videos public up to judge
CONCORD - The court system has released memorandums of law submitted by multiple news agencies, the ACLU, state, town of Haverhill and estate of Hagen Esty-Lennon.
Esty-Lennon, 41, of Canterbury, was shot six times by police on July 6, after he allegedly tried to kill himself, and then charged at three officers following a crash in Bath on an abandoned bridge. The media requested release of four videos taken at the scene using police equipment under the state's Right to Know Laws, even though the Attorney General's Office determined the use of deadly force was legally justified.
On August 5, an attorney for Esty-Lennon's ex-wife, Lisa, and an attorney on behalf of his estate, spoke during a hearing on the release of the videos at Merrimack County Superior Court. Judge Peter Fauver was initially for distributing of a majority of the videos, but was later convinced to issue a preliminary injunction enjoining their release, after it was argued that would traumatize Esty-Lennon's seven- and nine-year-old children.
Fauver gave all interested parties until Sept. 1 to submit memorandums supporting their positions.
Senior Vice President of NH1 News Network, Robb Atkinson, submitted a memorandum on behalf of the company, arguing that all portions of all four videos should be released, because the videos do not qualify under any privacy interest exception to the Right to Know laws. Atkinson pointed out the differences between case law cited by Fauver and the situation at hand.
Atkinson stated that because the government may have acted improperly, releasing the videos would contribute to the public's understanding of police officers performing their duties. The request for the videos is not a morbid or sensational prying into the petitioner's life, Atkinson added.
"There is reasonable doubt that the police acted properly, and what could potentially happen to his children is not an appropriate test," Atkinson said.
In Prison Legal News v. Exec. Office for U.S. Attorneys, the court found that when determining whether or not disclosure would constitute an "unwarranted" invasion into privacy rights, an objective test must be used, not a petitioner's personal perception of what might happen to them.
Atkinson also addressed the issue of legitimate public interest.
"When determining what is a matter of legitimate public interest, the line is drawn when the publicity becomes a morbid or sensational prying into private lives, which a reasonable person, with decent standards, would say it has no concern," Atkinson argued.
The town of Haverhill also argued all of the video should be fully released to the public.
"At its essence, the New Hampshire Public Right to Know law is designed to inform the public how its government functions," attorney Charles Bauer wrote. "The three body cameras inform the public how the officers properly secured the entire site and preserved and gathered evidence."
The state, through attorney Elizabeth Mulholland, also said a portion of the videos should be released to the public.
"While the video includes events that are disturbing to review, the tapes exhibit the events leading to the taking of a citizen's life by government officials," Mulholland said. "In a society which values the openness of government, that information should be shared unedited. There is a strong public interest in how law enforcement is conducting itself, particularly when there is an officer involved shooting."
Mulholland believes video captured after Esty-Lennon was shot should not be released, saying privacy interests of the family outweigh the interest in public disclosure.
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