Police Shooting Victim’s Family Fights Police Camera Footage Release

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Photo released by the Attorney General's Office of the incident just before the shooting of Hagen Esty-Lennon July 6 in Bath.

The family of Hagen Esty-Lennon today (Sept. 10, 2015) asked the court to bar release of any portion of video or audio captured on police body cameras and a cruiser camera of the incident July 6 when two Haverhill police officers shot Esty-Lennon to death in Bath.

Concord lawyer Diane Puckhaber filed the motion to reconsider Judge Peter Fauver’s recent decision ordering the release of redacted portions of the police video and full release of the audio on Sept. 21.

Puckhaber, representing Esty-Lennon’s former wife, Lisa Esty-Lennon and the couple’s two minor children, said there is no legitimate public interest in releasing any part of the audio and video footage sought by several news outlets, including InDepthNH.org.

“Rather, the media’s insistence on releasing all and/or part of both is an effort to satisfy the public’s interest in ‘sensationalism,’” Puckhaber wrote in the motion for reconsideration.

She also filed a motion to stay the release until further orders by the court or an order from the Supreme Court if an appeal is taken.

Puckhaber said there is proposed legislation pending in the Legislature that would create guidelines regarding the images and audio recordings from police body cameras.

“The Legislature or the Supreme Court needs to give clear guidance on this unique issue of first impression,” Puckhaber wrote.

Fauver’s original ruling ordered release of the videos and audio except for images of the shooting and bloody “up-close images of (Esty-Lennon) lying in his own blood” after being shot by Officers Ryan Jarvis and Greg Collins.

Fauver ordered redaction of the following video: “Up-close and graphic images of the officers shooting the decedent, the decedent bleeding profusely while lying on the ground, the officers turning over the decedent to secure him in handcuffs, the officers removing the decedent’s knife from his reach, and medical responders placing the decedent on a stretcher and into an ambulance.”

Fauver said federal courts have held that the FOIA (Freedom of Information Act) “recognizes family members’ right to personal privacy with respect to their close relative’s death-scene images.”

Whether police body camera footage should be made public “is a unique issue that should not be decided case-by-case, but rather by the Supreme Court,” Puckhaber wrote.

Puckhaber said the family has already suffered damage from the attorney general’s earlier release of still images of the scene just before the fatal shooting.

“The release in whole or in part is an invasion of their privacy and will only serve to cause further damage to the family,” Puckhaber wrote.

On Tuesday, Concord attorney William Chapman filed a motion on behalf of Newspapers of New Hampshire Inc. asking the judge to clarify that the redacted footage scheduled for release Sept. 21 would include “the shooting itself.”

Chapman said it was important for the public to see the video of the shooting to determine whether it was in fact “legally justified” as determined by Attorney General Joseph Foster.

 

UPDATE Sept. 10, 2015

A lawyer has asked the court to clarify its order on the release of footage showing the death of Hagen Esty-Lennon by ruling that all the images of “the shooting itself” captured on the body cameras of the two Haverhill police officers who shot him be released.

Representing Newspapers of New Hampshire Inc., attorney William Chapman filed the motion for clarification Tuesday in Merrimack County Superior Court in Concord.

“Only by release of all the images of the shooting itself captured by the officers’ body cameras can the public assess their decision to use deadly force and, as importantly, the attorney general’s conclusion that their conduct was ‘legally justified,'” Chapman wrote.

Esty-Lennon’s former wife had argued release of the gruesome images would be detrimental to Esty-Lennon’s two minor children. Judge Peter Fauver agreed in his ruling Sept. 4 that the family had a “strong privacy interest in preventing the release of these disturbing death scene images.”

Fauver did order the release of redacted footage from body cameras worn by the two Haverhill police officers who shot Esty-Lennon on July 6 in Bath, along with footage from a third officer’s body camera who arrived after the shooting and footage from a cruiser dashboard camera.

Authorities said that Esty-Lennon had been involved in a car crash and was armed with a knife before he was killed.

Chapman said because of Fauver’s two different descriptions of Esty-Lennon’s family’s privacy interests, Newspapers of New Hampshire was uncertain whether the images of the “shooting itself” are to be released Sept. 21 after redaction under the direction of the Attorney General’s Office.

Chapman said the motion didn’t forgo his client’s rights to seek other post-decision relief after the redacted videos and audios are released.

 

Sept. 4, 2015

Judge orders redacted release of police body cam footage in fatal Bath shooting

UPDATE  Judge Peter H. Fauver ordered release of redacted footage from body cameras worn by the two Haverhill police officers who shot Hagen Esty-Lennon to death in Bath on July 6.

Fauver ordered release of the videos except for the shooting and bloody “up-close images of (Esty-Lennon) lying in his own blood” after being shot by Officers Ryan Jarvis and Greg Collins.

Fauver ordered footage from the body camera of a third officer who arrived seconds after the shooting and a dashboard camera, along with the audio from all for cameras to be released without redaction. Fauver ordered the Attorney General’s office to oversee the redactions and release them Sept. 21 with the court’s ordered redactions.

Gilles Bissonnette, legal director for the ACLU-NH, praised the ruling, but said it remains to be seen when the videos and audio are released whether lethal force was necessary.

Esty-Lennon’s estate had argued against releasing the videos saying they would harm Esty-Lennon’s minor children.

Judge Fauver ordered redaction of the following footage: “Up-close and graphic images of the officers shooting the decedent, the decedent bleeding profusely while lying on the ground, the officers turning over the decedent to secure him in handcuffs, the officers removing the decedent’s knife from his reach, and medical responders placing the decedent on a stretcher and into an ambulance.”

Fauver explained in his ruling:

“These portions of the body camera videos depicting close-up images of the decedent lying in his own blood do not advance the public interest in assessing police conduct surrounding the decedent’s death.

“However the public’s interest in disclosure of the full audio from all four videos as well as the footage from the dashboard camera and Sergeant Trott’s body camera, both of which show the decedent from a distance, outweighs the privacy interest in nondisclosure,” Fauver wrote in the Merrimack County Superior Court order.

The Valley News and the Concord Monitor sought release of the videos and the ACLU-NH, several other newspapers and InDepthNH.org filed motions to intervene in support of release.

Fauver went on to say: “The full audio from all four videos, the dashboard video, and Sergeant Trott’s body camera video inform the public of the government’s actions throughout the entire incident without publically disclosing the graphic images of the decedent’s death-scene.

“The redaction of the officers’ videos combined with the full disclosure of the audio and the two other videos, substantially satisfies the public’s right to know while protecting the privacy interests of the decedent’s family,” Fauver wrote.

The estate of Hagen Esty-Lennon motion, which was granted in part and denied in part, argued the victim’s family’s right to privacy, especially his two minor children, outweighed the public’s right to know.

“The Esty-Lennon family’s right to privacy and the emotional and psychological harm which release of Hagen Esty-Lennon’s graphic, violent and gruesome death will have on his family outweigh the public’s right to know,” wrote James Laura of the McGrath Law Firm.

“There is no legitimate reason for the release of the videos,” Laura concluded in the memorandum of law filed Sept. 1.

Laura and Peter McGrath were not immediately available for comment.

Gilles Bissonnette, legal director for the ACLU-NH, praised the ruling, but said it remains to be seen when the videos and audio are released whether lethal force was necessary.

Bissonnette said in an email,  “the Court admirably attempted to balance the family’s privacy interests with the strong public interest in disclosure.  It appears from the Court’s decision that the public will not have access to the body camera videos of the two shooting officers depicting the actual moment lethal force was used, though the moment force was used will be released from a dash camera that was further away.”

ACLU-NH’s primary concern is that the public has access to enough of the videos to judge for itself whether lethal force was used appropriately, Bissonnette said.

“Whether that will be the case based on the video and audio that will ultimately be released remains to be seen.

“Because we give few government officials as much authority as the power we give to police to take human life based on split-second judgments, the public has a compelling interest in understanding how the police exercise that authority, particularly when lethal force is used on an individual potentially suffering from a mental health crisis,” Bissonnette said.

Fauver said the U.S. Supreme Court has held that the FOIA (Freedom of Information Act) “recognizes family members’ right to personal privacy with respect to their close relative’s death-scene images.”

 

Sept. 3, 2014

InDepthNH.org Seeks Police Shooting Video Release

The New Hampshire Center for Public Interest Journalism has filed a motion supporting release of footage from body cameras worn by two Haverhill police officers as well as footage from a cruiser camera when the two officers shot a man to death in July in Bath.

In court records obtained today, the victim’s family argues there is “no legitimate reason to release the videos.”

The center and its nonprofit investigative news website, InDepthNH.org, filed a friend of the court brief Tuesday supporting release in this case, which is believed to be the first of its kind in the nation.

InDepthNH.org’s filing in Merrimack County Superior Court in Concord supports motions filed by the ACLU-NH and a number of news organizations seeking release of the fatal shooting of Hagen Esty-Lennon on July 6.

Attorney General Joseph Foster concluded the shooting was legally justified and had planned to release the footage. Authorities said Esty-Lennon had been involved in a car crash when he lunged at police with a knife just before being shot.

A judge delayed the release last month after Esty-Lennon’s former wife, Lisa Esty-Lennon on behalf of her minor children, asked the court to stop the release.

“The Esty-Lennon family’s right to privacy and the emotional and psychological harm which release of Hagen Esty-Lennon’s graphic, violent and gruesome death will have on his family outweigh the public’s right to know,” wrote James Laura of the McGrath Law Firm.

“There is no legitimate reason for the release of the videos,” Laura concluded in the memorandum of law filed Sept. 1. Attorney Rick Gagliuso of Merrimack, representing InDepthNH.org, said the footage will inform the public about the conduct and activities of their government.

As Foster’s report of the incident makes clear, the footage constitutes the best visual evidence of the circumstances of the shooting and the response of the two police officers to such circumstances.

“The video is of critical importance in permitting the public to assess the reasonableness of the their response,” Gagliuso wrote.

The privacy interests of Esty-Lennon’s children must yield to the public interest under these circumstances, Gagliuso wrote. Without the opportunity to view the videotapes, InDepthNH.org is unable to assess their alleged graphic nature or their potential to impact viewers, Gagliuso said.

“Ms. Esty-Lennon has not established, however, to InDepthNH’s knowledge, that her children would likely be exposed to the police video if it were released to the public and the media, or that they could not effectively be shielded from it,” Gagliuso wrote.

InDepthNH.org’s brief supports the ACLU-NH and disclosure to the Valley News, the Union Leader Corporation, and Hearst Properties, Inc. (including WMUR-TV) as well.

Gilles Bissonnette, legal director of the ACLU-NH, said: “This is the first open records case in the country that the ACLU-NH is aware of where a court has been asked to decide whether body camera footage of a fatal police shooting should be disclosed under a state’s open records laws over a family’s privacy objections.”

It is an important issue with the potential to invade privacy, Bissonnette said in a news release.

“While the privacy interests raised by Mr. Esty-Lennon’s family are real and should be carefully balanced by the Court, the public’s competing interest in seeing uniquely reliable evidence of the law enforcement response to a person apparently in severe emotional distress, which resulted in the person’s death, is stronger,” Bissonnette wrote. Society gives few government officials as much authority as the power given to police to take human life based on split-second judgments, Bissonnette said. “Thus, the public has a correspondingly compelling interest in understanding how the police exercise that authority, particularly when lethal force is used on individuals suffering from mental health crises.

“The public’s interest in disclosure is even more acute where there are, as counsel for Mr. Esty-Lennon’s estate has acknowledged, still open questions about the use of force in this case and whether de-escalation techniques could have been utilized that would have lessened the need for lethal force.” Bissonnette said.

“These questions can only be answered through disclosure of the videos in question, especially where the videos appear to be the only neutral evidence available,” Bissonnette said.

— InDepthNH.org will post original documents when possible. The New Hampshire Judicial Branch today released 11 documents, including a petition, a position statement, an order, motions and memorandums of law, in Estate of Hagen Esty-Lennon v. State of New Hampshire (#217-2015-CV-00376) that are now posted on the NH Judicial Branch website in the “Frequently Requested Cases” section. Click below on the link to the 11 documents. http://www.courts.state.nh.us/caseinfo/pdf/esty-lennon/index.htm

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