9 months after ruling, woman awaits public records

Jan. 22—EDGEWOOD — Nine months after a ruling in her favor by Indiana's public access counselor, Ariel R. Dalton still awaits the documents that were the subject of her complaint against the Edgewood Police Department.

The Anderson resident said she needs a copy of her complaint to bolster her claims in a civil lawsuit against the department for alleged excessive force in a November 2020 incident. She fears time will run out on the tort claim she has filed against the department.

"They're hiding this. They are making it seem like I never reported this," she said. "They're really trying to make me miss my court date."

Edgewood Town Marshal Andrew Ellingwood said he not once but twice gave Dalton video she requested.

Dalton, 28, confirmed she did make a written freedom of information request for the video, the first copy of which was lost by an attorney. However, her separate oral request for all records related to the excessive force complaint and the outcome of any investigation into it has not been fulfilled.

Ellingwood also said he may be willing to turn over photocopies of the notes he took when she made the complaint. No formal report of Dalton's complaint was generated by the department, according to Ellingwood.

"She has been asked to make all of her requests in writing, and we fulfilled all her requests when she documented (them) in writing," he said.

But Dalton said the records should have been released regardless of how the request was made, an assertion that appears to be supported by the public access counselor's opinion.

"To be technical, I shouldn't have to do this," she said.

Dalton is one of five Madison County residents who last year filed open records complaints against local government authorities under the state Access to Public Records Act. All but one was ruled by Indiana Public Access Counselor Luke Britt in favor of the complainant.

One of those favorable advisory opinions was issued on behalf of a complaint made by Traci Miller, a former reporter at The Herald Bulletin, who, to date, has not received the records she requested from the Madison County Sheriff's Department. Miller is considering a lawsuit against the sheriff's department to enforce the order.

Statewide, 75 complaints were filed in 2021.

THE TRAFFIC STOP

According to Dalton, who at the time was a resident of Elwood, she made a short stop Nov. 16, 2020, to pick up dry cleaning from Bestway Cleaners, 2716 Nichol Ave., on her way to drop off her then-5-year-old son at counseling.

"I didn't even know (Edgewood Police Captain Shane E. Briggs) was behind me until I was out of the car and halfway up to the door. I saw the light flickering in the glass," she said.

Briggs followed Dalton into the establishment and ordered her to return to her vehicle, both parties agreed.

According to the probable cause affidavit filed by Briggs, he was issuing a warning for cell phone use to another driver near Indiana 32 and Park Road when he saw Dalton pass by and followed her to the cleaners. The affidavit does not say why she caught his attention.

When Dalton asked Briggs why he detained her, he told her she was not wearing a seat belt, both parties agreed.

"When I asked him why he pulled me over, he started messing with me," she said, explaining that the officer asked to see her license, registration and proof of insurance for the vehicle she was driving.

"Ms. Dalton refused to give me the registration for the vehicle, stating it was a rental, and her car was being repaired," Briggs said in the affidavit. "She continued to be argumentative about the entire stop and showed me an insurance card on her phone, but the card did not list the vehicle she was driving."

Briggs filled out citations for not wearing a seat belt and failure to show financial responsibility.

"When I approached her vehicle to hand her the citation, she rolled the window shut, and held up a finger to tell me to wait," Briggs said, adding that she narrowly missed catching his fingers in the window.

Dalton exited her car and followed Briggs to his patrol vehicle, yelling about having insurance, according to the affidavit. In an attempt to de-escalate the situation, Briggs said, he tried to get into the patrol car. Dalton shoved the driver-side door into him, striking him in the arm and hand as he tried to prevent the door from hitting him in the face, he said.

"He never de-escalated the situation at all," Dalton countered. "He is a captain. There is no excuse for his negligence."

As Dalton walked away, the affidavit said, Briggs ordered her more than once to stop.

"She refused all commands, and was starting to get back into her driver's seat when I deployed my Taser," Briggs said. "I inadvertently fired two cartridges by either pulling the trigger twice, or possibly held the trigger too long, sending the second set of probes."

Dalton was charged with Level 6 felony battery against a public safety officer. According to Madison County Circuit Court 5 records, the case was resolved through a pre-trial diversion agreement that includes payment of about $490 in fees.

According to an email sent to Dalton last February by her former attorney Bryan Williams, the diversion agreement does not equate to an admission of wrongdoing of any kind.

"It's a contract with the Prosecutor's Office," he said. "If you don't get arrested for anything new, then the charges get dismissed." That year has almost elapsed.

According to court records, Dalton has had previous moving motor vehicle violations, some of which have been dismissed.

EXCESSIVE FORCE COMPLAINT

Though she admits her behavior might have gotten a little out of hand, Dalton insists Briggs exercised excessive force, given the nature of the stop and the fact that by his own admission in the affidavit, she was walking away and not an imminent threat when he deployed the Taser.

"I didn't even understand why this man tased me. As I was being tased, he was talking to me aggressively," she said. "This officer was being intentionally uncooperative just because he wanted to show me who was boss."

Also upsetting to Dalton, she said, is that she needs to maintain her commercial driver's license for work. Tickets citing moving violations can cause the license to be revoked. The November 2020 incident took place within full view of her young child, resulting in ongoing problems, she said.

"I have been upset with this whole situation because of my child witnessing this," Dalton explained. "I always see him re-enacting this with his friends. He always talks about this."

On the advice of a friend who is a police detective, Dalton decided to file an excessive force complaint against Briggs on Dec. 4, 2020. Ellingwood took her complaint in person, making notes in a notebook. That notebook is separate from one he uses to take notes when on patrol, the Edgewood town marshal told The Herald Bulletin.

Dalton, however, said Ellingwood "wasn't paying attention to me."

"I never signed anything," she noted. "This officer (Briggs) is not going to be held accountable."

Briggs is one of five full-time Edgewood Police Department officers. The department also has four part-time and two reserve officers.

Dalton's is the second complaint filed against Briggs since he joined the department in 2009, Ellingwood confirmed. The other complaint did not involve excessive force, the town marshal said.

Eventually, Dalton was notified by Ellingwood that an internal department investigation showed her complaint was unfounded. But when she made an oral request on Jan. 20, 2021, for a copy of a report or other documentation related to the complaint, Ellingwood told Dalton there were no records available for release and she would have to have to contact her attorney.

Dalton filed her formal complaint against the Edgewood Police Department with Indiana Public Access Counselor Luke Britt on March 1.

According to Britt's opinion, Ellingwood's March 26 response to the complaint dismissed Dalton's allegations.

"Ellingwood ... maintains that EPD did not create any formal documentation throughout its review of Dalton's complaint," the opinion said. "Ellingwood asserts that the only physical documentation of Dalton's excessive force complaint is the piece of notepad paper that EPD used at the time it received Dalton's complaint."

Ellingwood, without citing statutory authority to support his claim, argued he did not have to turn over to Dalton what was on the notepad because its handwritten nature constituted work product. In his opinion published in April, the public access counselor agreed police agencies have some legal authority to withhold investigatory records from the public.

"Investigatory record is a term of art, however, and can be easily distinguished from mere 'work product,' which is not a disclosure exception available to police," the opinion said.

Under the Access to Public Records Act, disclosure exceptions are not absolute, the opinion continued. Police agencies are required to maintain daily logs and document all complaints and requests for assistance.

"Notwithstanding the fact that 'work product' of a law enforcement agency is neither an exemption nor an exception to disclosure under APRA, it does not appear that the EPD honored the statutory daily log requirement. EPD would be well-served to implement this practice going forward to ensure compliance with the law," the opinion said.

Ellingwood said his department, on average, receives fewer than one complaint a year. He has not developed a form or otherwise implemented a new complaint procedure since the public access counselor's ruling.

"I'm not sure that I need to," the Edgewood town marshal said.

Follow Rebecca R. Bibbs on Twitter at @RebeccaB_THB, or call 765-640-4883.