CINCINNATI (CN) — The Citizen Complaint Authority of Cincinnati cannot prevent police officers from recording interviews conducted during use-of-force investigations, the leader of the local Fraternal Order of Police chapter argued Tuesday before an appeals court panel.
Dan Hils, president of FOP Lodge 69, claimed in a 2021 lawsuit a CCA employee selectively recorded an interview about a use-of-force incident to omit exculpatory evidence and, in the process, violated an agency bylaw that requires full recordings of all interviews with police, complainants and witnesses.
In the aftermath of the incident, Hils began to record interviews on his own when he acted as a representative for other officers, but the CCA and its employees immediately terminated the interviews when they became aware of his actions.
In response, the CCA implemented a policy banning interviewees from making their own recordings and also created an interview "script" to deal with officers who attempted to do so, which included various threats, according to Hils.
In March, U.S. District Judge Michael Barrett granted the city's motion to dismiss the First Amendment suit filed by Hils and several other officers.
Barrett, an appointee of George W. Bush, determined because the policy does not "selectively delimit the audience" and is reasonably related to the city's interest in conducting effective investigations, it is not unconstitutional.
"The CCA cannot carry out its mission in a fair and effective manner if parts of the investigation are recorded and then released before the investigation is completed," the judge wrote.
On appeal to the Cincinnati-based Sixth Circuit, Hils and the other officers argue Ohio law permits anyone to record a conversation to which they are a party and that various courts have held the use of a cellphone as a recording device is so ubiquitous it must be given First Amendment protections.
"There was no prohibition to the plaintiffs accessing the CCA interview," their brief states, "and so we deal here not with access, but with a one-sided restraint on recording that permits the city and CCA officials to record (albeit sometimes selectively), but prohibits the plaintiffs from recording at all. Tellingly, the defendants have never adequately explained why the plaintiffs cannot record." (Parentheses and emphasis in original.)
In its brief, Cincinnati claimed its policy does not prevent officers from obtaining any of the information discussed in the hearing, given they are allowed to take notes and can request a copy of the interview once it is completed.
The city also pushed back against the officers' claim an individual has a right to record any conversation to which they are a party, noting the interviews do not take place in public spaces.
"Here, as the officers acknowledge, the public is not permitted in the CCA's interview rooms," the brief states. "Indeed, the officers are only permitted to be present because they are either being interviewed or representing the officer being interviewed. Regardless, just because the officers are allowed in CCA's interview rooms, just as the general public is allowed in courtrooms, does not endow them with First Amendment rights to record."
Attorney Chris Wiest argued Tuesday on behalf of the police officers and accused the CCA of omitting information from interviews to "create a false narrative" during use-of-force investigations.
Chief U.S. Circuit Judge Jeffrey Sutton, a George W. Bush appointee, asked Wiest about the city's interest in keeping the contents of the investigation under wraps.
"What I'm struggling with is this is still an investigation," he said. "They've got to keep it quiet until the investigation is done."
"Your honor, they permit note-taking," the attorney answered. "There is no 'grand secret' like in a grand jury."
"If you take them at face [value] ... for their governmental interest," Wiest continued, "then why not institute a gag order [until the investigation is done]?"
U.S. Circuit Judge Bernice Donald, an appointee of Barack Obama, asked Wiest about the similarities between the CCA investigations and voluntary police interviews during criminal cases.
The attorney reiterated his stance that the First Amendment grants a right to record voluntary interviews of all kinds.
"There is no prohibition for a suspect being able to turn on their phone" during a police interview, he said, while going on to quote former Supreme Court Justice Louis Brandeis: "Sunlight is the best disinfectant."
Attorney Scott Heenan of the Cincinnati City Solicitor's Office argued on behalf of the city and pointed out all of the caselaw cited by his opposing counsel involved the recording of "things that happened in public."
Sutton immediately questioned Heenan about the officers' ability to take and disseminate notes from the interviews.
"So what is the point [of the policy], if you can take notes and tell the world about the conversation?" he asked.
The city's attorney compared it to the separation of witnesses in a criminal trial and emphasized the CCA must be able to control the environment in which it conducts its interviews.
"You have to have a government interest," Sutton responded. "The separation of witnesses? I don't know. I'm not sure how your current policy advances that."
"Can we sit here today and come up with a better policy? Probably," Heenan admitted, "but that's not what we're here to do."
He was skeptical of his opposing counsel's claim about a suspect recording a police interview and told the panel he had never heard of any attempts to do so.
"Is there a First Amendment right to record? There isn't," the attorney concluded. "And without the First Amendment right, their case crumbles."
In his rebuttal, Wiest stressed the importance of providing the public with an "unvarnished version" of the interviews with his clients.
"Our goal is to make sure there's a complete recording out there for the public," he told the judges.
U.S. Circuit Judge Eric Murphy, a Donald Trump appointee, rounded out the panel. No timetable has been set for the court's decision.
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