Editor’s note: This opinion piece is by Douglas Clifton, the former editor of the Cleveland Plain Dealer and executive editor of the Miami Herald. He is an officer of the New England First Amendment Coalition. Clifton is also a member of the VTdigger.org and ACLU boards.
Last May police in Hartford Vermont got a 911 call reporting suspicious activity in a nearby home. When officers arrived at the home they encountered smoke and a naked black man. According to news accounts they thought the man was acting aggressively. They pepper sprayed and handcuffed him and took him outside wrapped in a blanket. Within 15 minutes they removed the cuffs and sent him off in an ambulance for medical attention. No charges were filed.
That bare bones account is pretty much all that is known of the events of May 29. That and one more salient point, Wayne Burwell, the black man who had been pepper sprayed and handcuffed, owned and lived in the Hartford house and was in diabetic shock when the police arrived.
When reporters asked for records of the episode, Hartford police refused to turn them over. They cited a portion of Vermont’s open records law that excludes records dealing with “detection and investigation of a crime.”
Anne Galloway, editor and creator of an on line news site called VT Digger, was one of the reporters stiff armed by the police. The Vermont chapter of the American Civil Liberties Union agreed with her that the records surrounding the event should be made public and shared her interest in determining what, exactly, went on at Wayne Burwell’s home that spring night.
Backed by the ACLU, Galloway filed suit in July. On Nov. 9 Windsor Superior Court Judge Katherine Hayes issued her ruling. To say that it did less than nothing to illuminate the events is to overstate the ruling’s logic. Judge Hayes ordered that all records created after a decision not to arrest Burwell should be turned over “forthwith.” But any record created prior to that decision would be subject to the “investigative” exemption. In other words records generated during the time the police were trying to determine whether a crime had been committed could remain secret.
Those records, of course, are the very ones that would help the public understand whether the police were acting appropriately. The records include the 911 tapes and – because the police were “miked” during the initial phases of their investigation – tapes and transcripts of their conversations with Burwell.
What did witnesses report? What did Burwell tell them? What led them to the decision to pepper spray him and put him in handcuffs? What made them decide he wasn’t a criminal after all? Did they have any evidence he was the home’s owner before they cuffed him? Was there any evidence that they or others were in danger? On what did they base that conclusion? The questions abound. The judge’s ruling almost guarantees that they will not be answered.
It may well be that the Hartford police were models of restraint and did everything by the book. In that case their reputations will remain under a cloud, thanks to their department’s refusal to release records and the judge’s support of their recalcitrance. But it may also be that the police behaved badly. Either way, the citizens of Hartford deserve to know the answer. Thanks to Judge Hayes, they may never.
