Chico Sol on Rushing Family case on Public Records dispute

https://chicosol.org/

by Leslie Layton posted July 9

This story was updated at 2 p.m. today to add comments from both parties’ attorneys.

Shortly after taking under submission a public records dispute, Butte County Superior Court Judge Stephen Benson ruled July 8 that the City of Chico must release a PowerPoint presentation on the 2017 police killing of Tyler Rushing.

The ruling in favor of Tyler’s father, Scott Rushing of Ventura, requires that the City release requested information “without redactions.” Scott Rushing filed his request under the state’s Public Records Act almost 19 months ago on the premise that the PowerPoint appears to have been created for training purposes.

Judge Benson also ruled that the City must turn over another piece of information it has refused to provide – the names of the officers who were on Chico PD’s hostage or crisis negotiating team at the time.

Under the Public Records Act, the party that prevails — in this case Scott Rushing — can recover attorney fees and other legal costs. Field said he’ll try to resolve “informally” the recovery of his client’s legal fees from the City, but will “seek additional relief from the court” if that becomes necessary.

City Attorney John Lam sent an email statement to ChicoSol today that says: “Although we disagree with the Court’s ruling, the City respects the Court’s decision in matter. The City will evaluate its options moving forward.”

Tyler, who was 34, was first shot by a private security guard on July 23 almost seven years ago during an episode of unusual behavior outside a local title company. Tyler fled into the company bathroom bleeding, and when Chico PD officers arrived, they spent 20 or 30 minutes trying unsuccessfully to coax him out.

Tyler was then attacked by a Butte County Sheriff’s canine, Tig, and surrounded by Chico PD officers. Sgt. Scott Ruppel fired at him as he struggled against the dog and police and after he hit Ruppel with a ballpoint pen.

photo courtesy of Rushing family

Tyler Rushing

The Rushings have a civil case in federal court pending over the fatal shooting of Tyler. The civil rights case will go to trial Oct. 7 in U.S. District Court for the Eastern District in Sacramento.

In his ruling on the PowerPoint issue, Benson says the City failed to meet the “substantial burden” of proof needed to declare the document exempt from the Public Records Act (PRA) and specifically penal code 832.7(b).

“In this Court’s opinion, the City has a substantial burden considering the Legislature’s expressed intent under PC § 832.7(b) to increase public access to all documents concerning officer shootings, as well as published decisions emphasizing the importance of law enforcement transparency,” he writes.

Attorney Sharon Medellín, representing the City on the matter and speaking to the court over a conference call line at the July 8 hearing, argued that the PowerPoint should be exempt because it wasn’t part of the authoring officer’s “job responsibilities,” and was produced after the official investigation headed by District Attorney Mike Ramsey was concluded.

“It was one person’s opinion,” Medellín said, adding that the document’s disclosure would “discourage critical analysis [by law enforcement agencies] in the future.”

Benson wasn’t convinced that the argument had merit or relevance. “Indeed, it is almost impossible to imagine how this was not within the scope of employment,” he says. The judge writes that state law defines public records as “any writing containing information relating to the conduct of the public’s business …

“The City states there are recommendations and conclusions in the power point not adopted by the department,” the ruling states. “The fact that recommendations and conclusions were made evidence the fact that it was within the scope of employment and that it is more than just an incidental reference to agency business.”

In court, Field said that contrary to Medellín’s argument that disclosure would discourage critical analysis by agencies in the future, the opposite could be true. Disclosure would show that an agency took steps to address procedural issues and improve responses. “I believe in transparency personally,” he said, “and I believe transparency encourages agencies to improve themselves.”

Medellín told the judge that the names of Chico PD’s crisis negotiating team were irrelevant because the team “didn’t respond to the incident.” She said the names should be protected as an “issue of safety.”

Outside the courtroom, Field said: “I don’t have personal knowledge if [crisis negotiators] responded or not” when Tyler was shot, tasered and mauled. His client, he said, wants to know “whether they responded or not, and if not, why not?”

Benson wrote: “While Respondent [City of Chico] has expended effort in arguing why an exemption exists concerning the power point, Respondent has failed to separately explain why an exemption applies to the names of the CNT [crisis negotiating team.]”

Scott Rushing commented this morning on the ruling. “I’m just trying to get all the information I can regarding the death of my son,” he said, “and I believe that Chico PD should have released [the PowerPoint] to my legal team when it was created in November 2017.

“I’m concerned still about lack of transparency by City of Chico officials. I’ll be very critical of the City of Chico if they don’t comply with the ruling of court.”

City Attorney Lam’s email said: “Per the Court’s Judgement, the City has 60 days to comply with the public records request.”

Field said, though, that the court expects the documents to be released “forthwith” and the City has 60 days to advise the court of steps taken.

“We are grateful for the Court’s careful consideration of this case … which vindicates Mr. Rushing’s and the public’s rights of access,” Field said in an email statement. “We hope that [the documents] will also help the City and other communities minimize the likelihood of tragedies like Tyler’s death in future interactions between law enforcement officers and members of the public.”

Leslie Layton is editor of ChicoSol.