Police fatally shot an unarmed teen. Now a ruling could push more evidence into the open

The city of Fresno’s fight to maintain secrecy of records related to the fatal shooting of Dylan Noble by police officers sustained a blow this week when a federal judge ordered police body camera footage, 911 calls, dispatch audio and more to be turned over to the attorneys of Noble’s parents – without requiring them to keep the evidence out of the public eye.

Noble’s family is suing the city and two of its police officers for alleged civil rights violations connected to the shooting of the unarmed 19-year-old during a traffic stop in June 2016. The police department has said Noble made aggressive moves toward officers.

The judge’s decision diverges from how cases against the city involving police shootings have unfolded. Attorneys for Noble’s family and the American Civil Liberties Union believe the case could be cited as a precedent by those seeking greater transparency in the department.

Attorneys for the city argued that turning over evidence to the attorneys for Noble’s parents, Veronica Nelson and Darren Noble, without a protective order – an agreement between the parties not to disclose evidence to the public – would jeopardize two ongoing investigations into Noble’s death. A spokesman for the Federal Bureau of Investigation confirmed Noble’s death was still under investigation, and court documents show the Fresno Police Department’s internal affairs unit also has an active case.

Mildred K. O’Linn, a partner with Los Angeles-based Manning & Kass, the firm representing the city of Fresno, said during a Nov. 16 hearing that she has represented several cities in police shooting cases, and the two sides have always exchanged evidence under a protective order.

Several attempts to reach O’Linn this week for comment were unsuccessful.

The “ongoing investigation” defense is used frequently by the Fresno department in police shooting cases. The Bee has requested information on the Noble case and other police shootings in the past, and the department has cited that reason in denying requests.

Federal Magistrate Judge Barbara A. McAuliffe rejected this claim, however, saying in Monday’s ruling that the “ongoing investigatory privilege” does not apply to “objective factual information” that Nelson and Darren Noble seek. She noted that internal affairs’ opposition to the public release of information failed to explain exactly how this release would obstruct its investigation.

The internal affairs investigation was thought to have been completed a year ago. Fresno’s Office of Independent Review, which typically can’t look into cases until after internal affairs is finished with them, said in a fourth-quarter 2016 report that the shooting was “not within policy.”

The Noble case resurfaced in the office’s most recent report, but incoming Independent Reviewer John Gliatta said reference to Noble’s case was “an inadvertent oversight.” He said the office’s investigation has not been reopened.

During the Nov. 16 hearing, McAuliffe said those investigating the shooting incident had more than a year to do so, and she expressed interest in moving the case forward.

Stuart Chandler, Nelson’s attorney, said Monday he believes this is the first time the city’s active-investigation defense has been rejected in court, at least in recent memory. The two sides have clashed over the exchange of evidence since April. The lawsuit was filed in July 2016.

However, the ruling was far from a total victory for Chandler’s side. McAuliffe ruled that a majority of the evidence being turned over by the city – such as witness statements, personnel reports, and third-party surveillance footage – cannot be made public. McAuliffe classified this evidence as “subjective,” as opposed to the body camera footage and other “objective” evidence.

The two sides will have to hash out exactly what will be protected and what won’t, McAuliffe said.

On Nov. 16, O’Linn argued the evidence McAuliffe categorized as “objective” contained graphic scenes and might violate officers’ and witnesses’ privacy. She said she would hate for the news media to identify a witness and camp outside that person’s house. Video footage of officers’ attempts to revive Noble using CPR also could have a “chilling effect,” O’Linn said.

Warren Paboojian, Darren Noble’s attorney, rejected O’Linn’s claims, saying her insinuation that he was attempting to sensationalize the case through the media was offensive.

“This case will be tried in a fair way,” Paboojian said, adding he had no interest in showing graphic footage or violating anyone’s privacy.

McAuliffe leaned toward O’Linn’s argument, saying steps would need to be taken to protect witnesses’ and officers’ privacy for evidence handed over without a protective order.

The two sides will meet Dec. 15 with McAuliffe to discuss their progress.

On Monday, The Bee asked city spokesman Mark Standriff and police Chief Jerry Dyer through email for a response to the court’s findings. Standriff said Fresno’s policy is not to discuss pending or ongoing legal matters. Dyer, in response to the email, declined to comment.

But on Tuesday, Dyer said in a rare joint statement with the Fresno County District Attorney’s Office: “We agree with the court’s ruling and believe a protective order is appropriate in this case as it pertains to specific items of evidence, policy, procedures and personnel files.”

“There is no reason to sensationalize this tragic event,” Dyer said in the statement. “It is important that this case not be tried in the media in order to guarantee a fair process for all involved.”

Dyer added the city has been “very transparent throughout this process” by releasing body camera footage of Noble’s death before the various investigations were complete. City policy allows the police chief to do this “when the public interest served by the disclosure of the video outweighs the public interest served by the non-disclosure of the video.”

However, Dyer only released the body camera footage after a cell phone video recorded by a witness and showing a partial account of the shooting was shared through the news media.

Dyer clarified that the internal affairs investigation has been completed, but “a final disposition is pending due to the administrative process that is afforded to the employee as guaranteed by the Peace Officers Bill of Rights.”

Assistant District Attorney Steve Wright, spokesman for the district attorney, said in the statement that his office completed its investigation into Noble’s death on Dec. 16, 2016.

“After this complete and thorough investigation and legal review of this incident, it was, and still is, the opinion of the District Attorney’s Office that the shooting death of Mr. Noble did not involve any criminal conduct by (the) Fresno Police Department,” Wright said.

Wright clarified that the district attorney only investigates and comments on criminal matters, not civil matters such as the Noble lawsuit.

Who makes evidence public

Chandler has maintained throughout the litigation process that it was the Fresno Police Department that made evidence public, specifically the body camera footage. By holding a news conference in July 2016, Chandler said, Dyer made the investigation a matter of public record.

“(Dyer) held a press conference where he slowed and froze and shaped the (video) evidence to tell his side,” Chandler said. “I need to tell my side. To tell Dylan’s side.”

He echoed Paboojian’s statements, saying any documents or videos that could be damaging to the officers’ or anyone else’s safety will not be shared publicly.

Chandler said the city has refused to provide information on Noble’s death despite numerous requests in the 16 months since he filed the lawsuit. The city’s attorneys told him they would release the documents and videos if he agreed not to disclose information publicly, but Chandler was adamant the information be shared without restriction due to the high public interest in the case.

Novella Coleman, a Fresno-based attorney for the American Civil Liberties Union of Northern California, agreed the Noble case is significant for Fresno.

“Documents and records treated in this case do have a larger implication for transparency within the department,” Coleman said.

Coleman recently wrote a report criticizing Fresno police for employing officers who have been involved in multiple police shootings, as well as disproportionately targeting black and Latino people. The report looked at 146 police shootings from 2001 through 2016, including Noble’s, and was sent to California Attorney General Xavier Becerra with the request he open a full investigation of the department.

Dyer disagreed with Coleman’s findings. He said the numbers are “without merit,” noting that “no judge or jury has ever found a pattern or practice of excessive force in the Fresno Police Department.”

Coleman said that during her work she also has had difficulty securing documents from the department that she believed are a matter of public record. She believes the department “stretches the rationale” of the Public Records Act to deny legitimate claims for information.

She said the creation of the city’s Citizens Public Safety Advisory Board, proposed by Mayor Lee Brand and approved by the Fresno City Council, and the expansion of the independent reviewer’s role from a part-time to a full-time position show the community is frustrated with the police department’s secretive ways.

“Given that there are a lot of ways for the Fresno Police Department to withhold information – and the approach in Fresno is to disclose as little as possible – it really highlights the need for the attorney general of California to investigate,” she said.

“He can access what the public can’t.”

This story was originally published November 29, 2017 at 8:15 AM with the headline "Police fatally shot an unarmed teen. Now a ruling could push more evidence into the open."