The executive vice president of the Oklahoma Press Association said a judge did not follow the open records law in granting a motion to quash a request for police video of the fatal shooting of a fleeing motorist by state troopers.
“The law clearly says that if a person wants to keep things confidential because they think it will jeopardize a right to a fair trial, that the court has to have a hearing,” Oklahoma Press Association Executive Vice President Mark Thomas said. “The law was not followed in this case.”
Oklahoma Highway Patrol troopers fatally shot 35-year-old Mark Anson Schoggins on July 17 following a pursuit.
McAlester police accused Schoggins of stealing two bottles of vodka from a local liquor store and fleeing after officers initially stopped him. MPD pursued Schoggins south of McAlester and OHP took the lead as the chase returned to city limits. The pursuit ended at South Third Street and South Avenue in McAlester with OHP troopers fatally shooting Schoggins.
The McAlester News-Capital and local attorney Brecken Wagner made separate open records requests for law enforcement video from that day.
District 18 District Attorney Chuck Sullivan filed a motion to quash open records requests 13 days after the shooting.
Pittsburg County District Judge Mike Hogan granted Sullivan’s motion 52 days later “after no response” was filed against the motion, according to the judge’s order.
Wagner on Wednesday filed a motion asking the court set aside the order granting the state’s motion to quash due to lack of service to either of the requesting parties. The motion also requested a leave of 20 days to file an objection to Sullivan’s motion and any other relief entitled as matter of law.
Thomas said that the News-Capital and Wagner should have been served and that a hearing should have been held before Hogan’s decision.
“I think the court would be proper if they go back and do that part properly and give service to the affected parties and let them have their opportunity to say why at least some of these tapes should be open,” Thomas said. “That’s what should have happened.”
“We look forward to having our opportunity to explain why we believe the public has a right to see this video,” McAlester News-Capital Publisher Ed Choate said.
“We are not asking to view this video just for ourselves at the News-Capital, but we are doing this for the residents of McAlester and Oklahoma,” Choate said. “It’s our responsibility to ensure that government is responsive and open to its citizens.”
Sullivan’s motion claimed the entirety of the videos requested were redactable under state law and asked for the court to issue an order prohibiting the release of any video footage recorded by any officers who responded to the scene while the ongoing investigation and possible prosecution of the case are active.
Thomas said Sullivan can redact portions of the video containing critical evidence — but videos should not be entirely redacted.
“What was envisioned in the law was if there are pieces of those tapes that show critical evidence, that they ought be able to withhold that until they finish their investigation,” Thomas said.
Thomas called Sullivan’s decision to ask for the entirety of the video to be withheld “an overreach application” of the Oklahoma Open Records Act. He said even though the act states that a record can be redacted if it depicts the death of a person or a dead body — but it also states “unless the death was effected by a law enforcement officer.”
He said that there was “a broader more difficult burden for the DA to have to prove” when it came to a fatal law enforcement shooting “to protect the public.”
Thomas said this is the first time he has seen a district attorney not only deny the request, but also file a motion to make the request invalid.
Court documents show Sullivan made a similar motion in 2017 following an officer-involved shooting in Kiowa where 50-year-old Marvin Washington was shot and killed by a Kiowa Police Officer. The video was released by Sullivan after the shooting was found to be justified. No known challenge was made into the 2017 motion.
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