Should Garrity statements of officer-involved shootings be protected records? Utah bill advances

SALT LAKE CITY — Despite pushback from family members of a Utahn who was shot and killed by local police and warnings from media that it would further damage public trust, Utah lawmakers are advancing a bill to protect Garrity statements from public records requests.

After less than 45 minutes of discussion on Friday, HB399 won unanimous approval from the House Law Enforcement and Criminal Justice Committee. It now goes to the full Utah House of Representatives for consideration.

If the bill wins full legislative approval and is signed into law by Gov. Spencer Cox, it would create a new exemption to Utah's public records law for compelled government employee statements that are given as part of an investigation into possible wrongdoing.

Such interviews are known as Garrity interviews because of a 1967 court decision that clarified police officers and other public employees have a right under the Fifth Amendment to refuse to testify in a criminal case. The court decision also allowed for police departments to interview officers for internal policy reviews.

Garrity protects law enforcers who are being investigated for incidents like officer-involved shootings from making statements that could be used against them criminally. The expectation is that Peace Officer Standards and Training can interview an officer who will respond truthfully to determine whether any training standards were violated.

The Utah Media Coalition, which includes the Deseret News and KSL along with other major outlets in the state, opposes the bill, arguing it would take away the public's right to know what police officers who have used deadly force say in those interviews. The coalition argues the records should be public to allow citizens to know the officers' version of events in a shooting while also protecting officers' rights to defend themselves if they are accused of a crime.

But the bill's supporters — including law enforcement officials, the Utah League of Cities and Towns, and the bill's sponsor, Rep. Ryan Wilcox, R-Ogden — argue that allowing the records to be subject to Utah's public records law creates a "chilling effect" for police officers who are forced to choose between getting fired or submitting to a Garrity interview that could later hit headlines.

"At some point in our careers, we've all likely had to have the difficult conversations related to employee behavior when something has gone wrong," Wilcox told the House committee. "In that context, ask yourself how likely is an employee to open up to you about a difficult issue — perhaps one in which they made a significant mistake — if after the interview, the content of that crucial conversation is going to be used to sell newspapers?"

Wilcox said if people feel safe, "they are most likely to cooperate and share their concerns openly." That safety is "paramount" in compelled interviews, and "obviously compromised by the ever-present threat of public shaming for profit that some would have you believe should be the price to be paid by choosing to be a public employee."

Sheryl Worsley, a former news director of KSL who is currently head of podcasting for Bonneville International and Region 3 director of the Radio Television Digital News Association, urged lawmakers not to support the bill.

She said police have "tough, often thankless jobs," and she's "personally grateful for the majority of law enforcement who" serve honorably. But she argued the bill isn't in their — or the public's — best interest.

"What officers do is difficult and heavily scrutinized. This bill will not remove the scrutiny," Worsley said. "This bill will increase public distrust of officers, if passed, because it shrouds the internal investigation under a veil of secrecy."

Worsley argued when an officer is involved in a shooting, internal investigations on whether the officer complied with policies and training are "well within the public's right to know."

"Police departments across the country and here in Utah have seen a rise in mistrust. The answer to a lack of trust is more transparency, not less," she said.

The Zane James case

Tiffany James, the mother of Zane James, who was 19 when he was shot by Cottonwood Heights police in 2018, also spoke against the bill, saying the investigations into her son's shooting were "not thorough," and did not include "all the facts."

Police shot Zane James after he allegedly robbed two stores with what was later determined to be a pellet gun. His family is suing the city over his death, contending officer Casey Davies used his patrol car to hit Zane James, who was traveling on a dirt bike.

Salt Lake County District Attorney Sim Gill confirmed to KSL-TV on Thursday prosecutors are reopening their investigation into the Zane James shooting, saying new information has surfaced as the family has raised concerns and Cottonwood Heights police have details to share. More than three years ago, Gill decided not to file criminal charges against Davies, concluding he was justified in using deadly force on Zane James because Davies feared he was in imminent danger of serious bodily injury or death.

Davies declined to be interviewed as part of the officer-involved investigation, invoking his Fifth Amendment right not to make self-incriminating statements.

"Our case is the reason why this bill should not move forward," she said. "And it's the reason why Garrity statements should not be restricted. ... It is simply unacceptable for government and law enforcement to expect that they can have a crisis that occurs and not be held accountable for it, not have to share all of the information or be selective in their information."

When her time to speak to lawmakers expired, Tiffiany James begged lawmakers, "Please. There is no public benefit to less transparency."

Another high-profile police shooting has led to a lawsuit in Utah courts. The West Jordan Police Department has taken The Salt Lake Tribune to court to block the outlet's pursuit of Garrity records of two officers who fatally shot Michael Glad in 2018.

The Utah Headliners Chapter of the Society of Professional Journalists, and media outlets including the Deseret News, KSL, the Utah Investigative Journalism Project and others have submitted an amicus brief in support of the Tribune's fight for the records.

"Transparency is critical for ensuring that the public has the information necessary to evaluate the conduct of law enforcement officers who are sworn to protect the public, and to ensure that investigations of deadly force incidents are conducted thoroughly and fairly," the media's brief states.

The case for protecting Garrity interviews

On the other side of the debate, West Jordan's police chief urged lawmakers to support the bill with an emotional appeal.

Chief Ken Wallentine, who was also representing the Utah Chief of Police Association and the Utah Law Enforcement Legislative Committee, spoke of an officer who was compelled to give a Garrity statement related to an officer-involved shooting.

Wallentine, who did not name the officer, said the officer listened to his attorney and was unwilling to voluntarily provide a statement, invoking his Fifth Amendment rights. Nonetheless, Wallentine said the department was compelling the statement as a condition of his employment, and "he was also told that the only recording of his Garrity statement would be held by five people."

"Based on what he was told and what he read, he knew that this very limited number of people who have access to his very personal statement. In essence, he knew that Garrity statement would never be circulated because any disclosure of that compelled statement would be tantamount to coercing him to waive Fifth Amendment rights in relation to the statement he gave."

Wallentine said that officer told him directly he "gave a Garrity statement because he thought if he didn't he'd be fired."

"He could not only, in other words, lose his job but his entire career that he's struggled for his entire life," Wallentine said. "He said to me, 'Because I knew that my job ... was on the line I laid every personal emotion, thought, and my deep fears on the table, when I was giving my Garrity statement. The way I talked about the incident while giving the Garrity statement is not how I would explain the incident to the public.' ... And he told me he never wanted his children, he never wanted his spouse, to hear the fear that his job involved."

Wallentine said police officers already have to rehash their jobs "at the dinner table, he doesn't need it on the front page of the newspaper."

"Whether consciously acknowledged or not, cops consume pain on a daily basis. And we're bad, we're bad at sharing pain and dealing with it in a healthy way," Wallentine said. "We bottle it and brew it and distill it until the pain is multiplied exponentially and we let it percolate into depression, anxiety, divorce sometimes, physical ailments and even worse."

During Garrity interviews, the safety of knowing those statements will remain private can help officers "uncover the pain and find a path toward resolution," Wallentine said. That can make a difference in officers' lives and the police department.

"But the threat that these candid and draining interviews will be shared on the pages of a newspaper or website as so-called human interest stories," Wallentine said, "powerfully reinforces the stigma that causes our officers to bottle up raw emotions and let it become a festering wound."

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