May 12, 2013

Getting police reports, criminal records often requires lawsuits in Kansas

Authorities acknowledge that no other state has such restrictive laws as Kansas when it comes to releasing criminal records.

Authorities acknowledge that no other state has such restrictive laws as Kansas when it comes to releasing criminal records.

Soon after Susan Stuckey called Prairie Village police three years ago and said she wanted a cop to kill her, more than 15 officers in riot gear surrounded her apartment building.

When they left the complex several hours later, Stuckey – who had suffered for years from mental illness – was dead, shot three times by one of the officers.

It would take Stuckey’s mother, Beverly Stewart, two years, a lawsuit and thousands of dollars to get police reports that explained how her daughter died that day and why police had to use deadly force on a woman who had no gun.

“You are desperate to find out,” says Stewart, who now has filed a federal lawsuit against Prairie Village saying that her daughter’s civil rights were violated. “It was a horrible, horrible way of dying.”

In a similar police case, a Leawood couple finally discovered this month why authorities raided their home last year, but again, it took a lawsuit.

In most other states, those records would have been easily accessible.

But the Kansas Legislature has closed most criminal records to the public. The law even makes it a misdemeanor crime for a law enforcement agency or prosecutor to release those records without a judge’s order.

“I know of no other states where these records can be closed forever,” said Ken Bunting, executive director of the National Freedom of Information Coalition, a nonprofit that works to protect the public’s right to open government.

Several law enforcement officials in Kansas acknowledge they know of no other states with laws sealing so many police records, but they say the records are closed to protect the rights of the accused and to keep publicity from tainting a jury. In addition, the records may contain the name of a confidential informant or investigation techniques such as wiretapping that police want to keep secret.

“Sometimes as that information comes in, it is not 100 percent accurate,” said Chad Taylor, Shawnee County district attorney. “So it is kind of a delicate balancing act between the public’s right to know and ultimately protecting the rights of the accused.”

In cases where victims want more information, Johnson County District Attorney Stephen Howe said, “I understand their frustration, but I also think they understand we want to do it the right way.”

But most other states and the federal government tip the balance toward making information public – even in the Boston terrorist attack.

Within a couple of hours after suspect Dzhokhar Tsarnaev was charged with using a weapon of mass destruction, federal authorities made public a charging affidavit that included evidence that led officials to believe that Tsarnaev was likely to have committed the crime.

Indeed, the 13-page document was soon on the Internet.

In Kansas, such a document is closed to the public and can be opened only if a judge orders it, which is rare.

At least three state legislators interviewed by the Star did not realize how restrictive Kansas law is regarding criminal records and said the Legislature needs to revamp the law.

Records should be open “unless law enforcement can provide a justifiable reason to keep records closed or sealed to protect an ongoing investigation for prosecution,” said Rep. John Rubin, R-Shawnee and a former federal administrative law judge. “That’s what I’m used to at the federal level. I’m surprised that is not the principle we are operating from in the state of Kansas.”

Mystery raid

The plight of the Hartes, whose upscale Leawood home was raided by police a year ago, is now well-known.

The circumstances of the raid led the couple to suspect it was sparked by their innocent visit to a hydroponics store, which police were staking out to catch people who might be buying equipment to grow marijuana.

After the raid, the Hartes were stunned to learn that the Johnson County Sheriff’s Department could withhold the evidence that led them to believe the Hartes likely had an illegal substance in their home.

“What happened to us is wrong at any level,” Adlynn Harte said. “It was un-American.”

They sued the Johnson County Sheriff’s Department for the records that would explain a predawn raid on their home.

Last week the sheriff’s department released the records without explanation, and the records showed the raid was based on a visit to the hydroponics store and positive field tests on leaves from the Hartes’ trash. A later lab examination showed those test results to be wrong.

Adlynn and her husband, Bob Harte, had spent $7,000 in legal fees seeking the records.

Master Deputy Tom Erickson of the sheriff’s department previously had said the law prevents the department from releasing the records.

“The way that works in Kansas is if someone wants to get a record that an agency has denied, they have the ability to go through the court system,” Erickson said. “That is always the remedy.”

Closing records

There are three sets of criminal records that are closed in Kansas but are generally open in most states without going to court. They are:

• The affidavits for search, arrest and charging warrants. The affidavits are sworn documents that include the evidence and establish the probable cause to believe a crime was committed in order to search a home or business, arrest someone or charge them with a crime. This was the document the Hartes sought.
• The narrative account of an incident report. This details the events leading to and resulting in an incident. For example, if someone burglarizes a house, the patrol officer first on the scene has to file a report. In general, those reports are open to the public within hours in other states. The owners of a Leawood home where teenagers broke in and caused more than $90,000 damage last August have not been able to get this report from police.
• The police investigation. In most states, the police investigation automatically becomes a public record either when the prosecutor gives the file to the defense or when the case is closed. The mother of the woman killed by Prairie Village police had to sue to get this.

Kansas wasn’t always like this.

Going back as far as the 1960s, the law used to be similar to laws in the rest of the country. But in 1979, the Topeka Daily Capital newspaper published a story naming two men who were the subject of a police search using warrants that had not been served.

Acting quickly, the state Legislature amended the open-records law to close criminal records except when a judge orders the records to be opened.

It was an overreaction, said Lyndon Vix, a Wichita media law attorney.

“They went overboard and stuck in language that said you can only get them if the court releases them,” Vix said.

Not all judges agreed with the change.

In Lyon County, where Emporia is located, judges decided to keep affidavits open, and they remain open today.

“We’re an aberration,” County Attorney Marc Goodman said. “We’re like the only county in the state who has them open.”

Deadly force

After Susan Stuckey was shot to death in 2010, Prairie Village police said she had threatened officers with a baseball bat, a broom and a knife.

Beverly Stewart, her mother, didn’t understand why that would have led to a shooting. She asked police for the records and finally filed a lawsuit.

When the case went to court two years later, Prairie Village lawyers argued the records couldn’t be released because:

• They were part of a criminal investigation and as such could release sensitive information such as names of a confidential informant.
• Stewart had failed to show there was legitimate public interest in the case to release the records.
• Stewart had met with the district attorney’s office, police and a city attorney and had been given the facts of the case verbally.

But after reviewing the police file, Johnson County District Judge David Hauber said in a hearing last year that releasing the records would not interfere with any criminal investigation or prosecution because there wasn’t one.

“Releasing these records may result in a lawsuit, it may result in criticism, but that’s not the basis for which the court needs to make a determination that these records should be withheld,” he said.

After reviewing the records, Stewart has filed a lawsuit for violation of her daughter’s civil rights, asking for $4 million in damages. The records seem to have discrepancies from what authorities told her verbally, said Cheryl Pilate, her attorney.

District Attorney Howe, after conducting his own investigation, said the shooting was justified.

And although Howe and police won’t talk specifically about the case, Police Chief Wes Jordan said the department and the city are sensitive to people’s need to know. But the situation can be difficult because of the law, he said.

Stewart said she hopes that law will change – and that no one else will have to go through her ordeal.

“You have to fight, fight, fight,” she said.

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