Atlanta Eagle attorneys allege city withholding, destroying key evidence in federal lawsuit

The attorneys for the plaintiffs are asking the court to order the city’s legal department to follow the court’s order to turn over all evidence or face severe sanctions.

“Given Defendants’ refusal to obey the clear orders issued by this Court, Plaintiffs ask the Court to hold Defendants and their counsel in civil contempt and order them imprisoned, but give them the opportunity to purge the contempt and avoid ever being jailed simply by complying with the Court’s orders within a reasonable period of time,” according to the 55-page motion.

“Plaintiffs wish to make it clear that they do not seek the actual incarceration of Defendants or their counsel; Plaintiffs merely suggest that the Court use its civil contempt authority as a mechanism to assure compliance with the Court’s orders, which have already been blatantly and deliberately violated by these Defendants.”

Grossman declined comment on the motion.

“The motion is in the hands of the Court and we will wait for the judge’s decision,” he said.

Reese McCranie, deputy director of communications for the mayor’s office, also declined to comment.

“Due to pending litigation we will not be able to comment on this,” he said.

Grossman and the other plaintiffs’ attorneys, including Beth Littrell and Greg Nevins of Lambda Legal and Gerald Weber and Lisa Kung of the Southern Center for Human Rights, also allege in their motion with U.S. District Court Judge Timothy C. Batten Sr. that the city deliberately destroyed evidence, including cell phone records of officers involved in the Sept. 10, 2009, raid.

“After being ordered to produce their mobile phones for inspection, some of the Defendants destroyed the evidence on their phones instead. Plaintiffs’ forensic expert examined the APD mobile phone reports for a sample group comprised of six Defendants. The officers selected for this sample were the four most senior officers involved in the Raid (Red Dog commander Lt. Scott Pautsch, Raid commanders Sgt. John Brock and Sgt. Kelly Collier, and lead investigator Bennie Bridges); an officer whose phone was used to take a photograph during the Raid (Officer Jeremy Edwards); and one ‘rank-and-file’ officer (Officer Brandon Jackson),” state the court documents.

“Some of the missing messages specifically concern the Raid, and some were even sent during the Raid itself,” according to the motion.

“The reports indicate that mobile phone photographs are missing as well, including photographs taken during the period of the Raid. Defendant Jeremy Edwards’ phone, for example, contained a photograph taken during the Raid, but the two previous photographs are missing.”

The plaintiffs’ attorneys also allege the possibility of “mobile phone hacking” — or corrupting data on the cell phones of some of the officers involved in the raid — specifically to keep it from being extracted as evidence, including cell phone photos and text messages taken and sent during last year’s controversial raid.

One text message retrieved was sent between two officers named as defendants, Dimitri Jacques and Brandon Jackson, according to the motion.

“On Sept. 15, 2009, four days after the Raid, when alleged use of anti- gay slurs by officers was being widely discussed in the Atlanta press, Defendant Jacques and Defendant Brandon Jackson had the following communication by text message:

“Jacques to Jackson 22:18:33 (GMT): Bro no more fuckin gay jokes. For rear for real (sic).”

Attorneys for the Atlanta Eagle plaintiffs also state, “As a result of Defendants’ pervasive failure to search, and perhaps a willful attempt to conceal evidence, Defendants withheld a massive quantity of discoverable and in some cases highly relevant and even dispositive items.”

Grossman states in the motion he made site visits to the APD and found thousands of pages of documents relevant to the Atlanta Eagle case that were not turned over by the city.

“The site visits to APD revealed the existence of 12,046 pages of responsive documents, many of which had previously been withheld. The visit to the Red Dog unit alone, for example, uncovered thousands of previously unproduced documents including personnel files, Use of Force Reports, tactical plans of other police raids, Red Dog training materials, and Command Memoranda concerning arrest, search and seizure, and other responsive topics,” according to the motion.

Judge Batten, in an Aug. 27 phone transcript with the city’s attorneys and Grossman, is obviously upset with the how the city was handling the issue of mobile phone records being turned over as part of the discovery process in the lawsuit.

“It sounds like you’ve been jerked around and the city is in a little bit of a hole right now in the way the court is looking at this because I just am not satisfied that the city’s done what it’s supposed to have done,” Batten said to Grossman in the phone conference.

In an Aug. 20 phone conference, Judge Batten also expresses dismay with how the city is handling the case.

“Well, I must say that based on what I’ve read, the Court finds that the defendants have been woefully deficient in their responses to the plaintiffs’ discovery requests,” he said.

Batten then added, “But there’s no question in my mind that the City has not done enough to try to comply with the plaintiffs’ discovery requests.”

And at the end of the Aug. 27 phone conference with Grossman and city attorneys, Judge Batten again expresses frustration with the city’s handling of the case and its slowness in fulfilling court orders.

“But I intend to be sure that the case is moving. There is a bit of a sword of Damocles hanging over the head of the city right now … and we can remove that if he [city attorney Robert Godfrey] will make sure that the city fully complies with the court’s orders and with the discovery requirements under law that we’ve discussed already,” Batten said.

The Atlanta Eagle attorneys are asking the judge to hand down specific sanctions in the Oct. 6 motion:

• Order Defendants or their counsel to pay for the forensic examination of electronically stored information, including the restoration of deleted data.

• Order Defendants or their counsel to pay for the collection of electronically stored information and the creation of an e-discovery search facility available to all Parties and the Court.

• Order Defendants to provide their online user-ids and passwords, and their consent to third party internet providers to release online content. This includes instant messaging as well as for social networking sites, such as Facebook and Myspace.

• Award the reasonable attorneys’ fees and costs incurred by Plaintiffs as a result of Defendants’ continued and repeated failure to comply with discovery.

During the raid, some 60 patrons of the bar were forced to the floor by members of the APD and its paramilitary Red Dog Unit as part of an undercover investigation alleging illegal sexual activity was taking place in the bar. However, no arrests were made in the raid for such alleged activity, no drugs were found and no outstanding warrants against anyone in the bar were found.

Instead, eight employees were arrested and charged with violating city ordinances, including operating an adult club without proper licenses. A trial held in March cleared the employees or the charges were dismissed.

In September, a year after the raid, the Atlanta Citizens Review Board, a citizens advisory board that receives and hears complaints against the APD, ruled the police department did falsely imprison the patrons in the bar the night of the raid.

In August, the CRB also ruled the police used abusive language, including anti-gay and racist comments, during the raid.

Tonight, the newly-formed GLBT Police Advisory Board meets.

The Atlanta Eagle case is not on the agenda, but members discussed at the first meeting their desire to see transparency in the lawsuit.

Grossman and Mayor Kasim Reed shared a testy exchange at a July 22 town hall meeting about the Atlanta Eagle lawsuit and the city’s refusal to apologize. Watch the video below.


Top photo: Attorney Dan Grossman speaks during a community meeting hosted by the Atlanta Police Department (by Dyana Bagby)