Topeka police refuse to release body camera footage of June fatal officer-involved shooting

Topeka police last week denied a request by The Capital-Journal seeking body camera video of the fatal shooting by three Topeka police officers June 24 of Christopher Kelley, 38, whom officers said charged at them with a knife.

Police legal adviser David Huckabee said the Kansas Open Records Act shields the videos involved from public release because they are personnel records and investigative records, and because their release would constitute an unwarranted invasion of personal privacy.

Those arguments lack merit, replied Max Kautsch, a Lawrence attorney and president of the Kansas Coalition for Open Government.

Topeka police have an obligation to make the video public to answer questions surrounding Kelly's death, Kautsch said.

"The credibility of the entire local law enforcement apparatus is at stake until it releases the video," he said.

More:Topeka police acted justifiably June 24 in fatally shooting man who had knife, D.A. says

Kelley was a husband, father, cook and friend, and had been a lance corporal in the arine Corps, said Danielle Twemlow, who helped organize a gathering held July 14 to memorialize him on the south steps of the Kansas Statehouse.

The event focused on "the wonderful man he was before his life was tragically taken from us by police," according to its Facebook site.

Here's what happened

Police were called about 9 a.m. June 24 to the area of S.E. 4th and Holliday, where Kelley — a Black man with mental health issues — had reportedly trespassed on BNSF Railroad property, threatened a BNSF employee with a knife, then began cutting himself with the knife before police arrived, said Shawnee County District Attorney Mike Kagay.

He said officers set up a perimeter and tried to negotiate for roughly an hour, shooting Kelley with "bean bag" rounds and foam/rubber projectiles, though he disobeyed their commands and continued to occasionally cut himself with the knife.

About 10 a.m., Kelley screamed and charged with the knife extended over his head at the officers, who fatally shot him, Kagay said.

An autopsy showed Kelley had methamphetamine and marijuana in his system, he said.

The Kansas Bureau of Investigation investigated circumstances of Kelley's death, then forwarded a report to Kagay's office.

Kagay announced Sept. 23 that he had concluded that the officers acted justifiably and would not be subject to criminal prosecution. Their names have not been made public.

More:A year after Cedric Lofton death, possible change to ‘stand your ground’ law uncertain in Kansas

Police say video constitutes personnel records

The Capital-Journal on Sept. 23 submitted a request to Topeka's city government seeking police body camera video of the incident in which Kelley died.

In his response Wednesday to The Capital-Journal's request, Huckabee said it was being refused under a section of the Kansas Open Records Act that enables agencies to "deny the release of any materials considered as personnel records, performance ratings or individually identifiable records pertaining to employees or applicants for employment."

Kautsch said the police department would have a hard time proving the video of Kelley's shooting is a personnel record.

He said the Kansas Atttorney General's Office in 1999 ruled "the personnel exception is designed to protect information that is normally kept in personnel records files, such as documentation of discipline, references and resumes, ADA and FMLA issues, as well as specific personal information such as home address and social security number."

The body camera video of Kelley's shooting doesn't fit that definition, Kautsch said.

"Presumably, body cam footage is ordinarily uploaded to a department server, not inserted into individual officers' personnel files," he said. "The (district attorney) has already determined the officers acted reasonably, so there's no reason to believe the video would have been placed in their files for any disciplinary reason.  Moreover, the video does not constitute any of the other personally identifiable information ordinarily kept in personnel files."

Police say video constitutes criminal investigation records

Huckabee said another reason for the denial of The Capital-Journal's request was because the records being sought were criminal investigation records, which Kansas law says agencies may keep confidential.

Kautsch replied that though Kansas law defines the video as being a criminal investigation record, the Kansas Open Records Act allows such records to be disclosed when they are in the public interest.

Last year, district courts in both Sedgwick and Johnson counties heard cases in which police conduct was questioned that were resolved by the law enforcement agency defendants turning over requested investigative records, Kautsch said.

"In ordering disclosure, the Sedgwick County judge found that 'when there is misconduct or even alleged misconduct, it is in the public interest to know exactly what happened and what remedial steps have been taken to address such misconduct, if any,'" he said.

Police say video's release isn't in the public interest

Huckabee said one reason the police department denied The Capital-Journal's request is because disclosure "is not in the public’s interest."

Kautsch disagreed, saying the public so far has had no choice but to take Kagay's word for the reasonableness of the conduct of the officers who fatally shot Kelley.

"Concluding that the officers acted reasonably hinges almost entirely on accepting that the suspect was killed only after he 'raised the knife and charged at law enforcement officers,'" Kautsch said. "The video is the only way for the public to challenge or verify that conclusion. "

Police say release could interfere with prospective law enforcement action

Another reason the police department denied the release of the video was because its disclosure "has the potential to interfere with prospective law enforcement action," Huckabee said.

That argument lacks merit, Kautsch replied.

"The officers won't be charged. The suspect is dead," he said. "It would be the department's burden to prove that it is more likely than not that this exception is truly applicable.  I rather doubt a reasonable person would find it possible to meet that threshold."

More:A Kansas deputy tased a 12-year-old autistic boy who was handcuffed, shackled and hogtied

Police say release of video could endanger someone's safety or life

Police also denied the video's release under a section of Kansas law that allows for that to be done regarding any record that "has the potential to endanger the life or physical safety of any person," Huckabee said.

Kautch said he was presuming the department was contending the video's release would threaten the safety of the officers involved.

"That's a stretch, particularly if the video were redacted to obscure the officers' identities," he said. "State law makes clear that even if a portion of the record may be withheld, the agency must 'separate or delete such material' and disclose the rest."

Police say video's release would be unwarranted personal privacy violation

In denying The Capital-Journal's request, Huckabee added that Kansas law enables public agencies facing KORA requests to consider "the potential release of records where those public records contain information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy."

Kautch replied that under a balancing test the attorney general described in a 2006 ruling, any privacy concerns regarding the Kelley case are far outweighed by the public interest in this case, so long as the officers' faces and any other identifying characteristics are obscured.

"Here, even if the officers, as public employees, have a privacy interest in their images on the body camera footage, the video would clearly 'shed any light on the conduct of any government agency or official' because it would give the public an opportunity to judge for itself whether the officers acted reasonably," he said.

Tim Hrenchir can be reached at (785) 213-5934 or threnchir@gannett.com.

This article originally appeared on Topeka Capital-Journal: Topeka police won't release body camera video of fatal shooting