published on February 7, 2017 - 3:08 AM
Written by The Business Journal Staff

(AP) — A federal appeals court considered Monday whether to automatically halt lower court orders publicly releasing video of fatal shootings by police to prevent potential violence.

Judges on the 9th U.S. Circuit Court of Appeals panel acknowledged that the case involving a 2013 shooting of an unarmed man by police in the Los Angeles suburb of Gardena was largely moot because the video was released and widely published.

But in considering whether U.S. District Judge Stephen V. Wilson abused his discretion by denying Gardena a stay of execution and releasing videos sought by The Associated Press and other news organizations, the court questioned if future video releases should be put on hold to offer a chance of appeal.

Judge Andrew Kleinfeld said stays are automatically granted in other types of cases. He repeatedly questioned a news media lawyer about why it was in the public interest to release videos that might incite violence and rioting.

Attorney Kelli Sager said the law favored public disclosure of the video that was evidence in a lawsuit Gardena settled for nearly $5 million. Sager said the city failed to properly seek a stay of execution in 2015 and had presented a weak case for permanently sealing the video.

“They simply said it’s a police video and it might lead to riots even though the shooting was two years earlier,” Sager said. “In fact, the record shows that didn’t happen.”

The videos were sought by AP, the Los Angeles Times and Bloomberg at a time when intense public scrutiny was starting to focus on police shootings nationwide. The news media argued the videos should be unsealed under a First Amendment right to access court documents.

Wilson ordered the footage released after saying it was important for the public to see whether the shooting was justified and so taxpayers could understand why Gardena paid $4.7 million to settle the case with the family of Ricardo Diaz-Zeferino, who was killed, and a friend who was wounded.

Wilson rejected a stay of execution and the videos were public before the city could get a temporary stay from a 9th Circuit judge.

Attorney Scott Davenport said the city of Gardena realized it had lost, but said the issue was “bigger than this case” and was pursuing the appeal for other law enforcement agencies to avoid a repeat occurrence.

The three judges, however, cast doubts on parts of the appeal, saying the city had not met criteria for a stay from the trial court. They questioned the assertion that the same situation would play itself out again, which they said was an overly broad interpretation of the law.

Diaz-Zeferino was killed June 2, 2013, by police searching for a bike thief. In a tragic twist, Diaz-Zeferino was searching for the same bike — stolen from his brother — when he and two friends were stopped by police.

The theft had erroneously been relayed by dispatchers as a robbery, raising the possibility suspects could be armed.

Footage showed Diaz-Zeferino, who was drunk and had methamphetamine in his system, failing to follow police orders to keep his hands up. The video shot from two cruisers showed him lower his hands three times despite an officer yelling, “Get your hands up.”

One camera showed he had his palms open and facing upward in front of him as he removed his ball cap and lowered his hands a final time. Footage shot from the side showed his right hand briefly disappear from view at his waist as shots were fired and he crumpled to the pavement.

The officers said they feared he was reaching for a weapon, though they later found he was not armed. Prosecutors said the shooting was justified and declined to bring charges.

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