At exactly 9:40:03 on the morning of Dec. 14, 2012, the last shot was fired in Sandy Hook Elementary School.
It ended the life of Adam Lanza, and marked the first shot in the most recent battle over privacy and openness, and the most recent conflict between victims’ rights and the public’s right to know.
So far, this battle’s main casualty has been Connecticut’s Freedom of Information Act.
Because Lanza killed himself, police and prosecutors had no suspect to arrest, question, indict and take to trial. There has been no real target for society’s outrage. Instead, the media and FOI laws became a kind of surrogate target. Just how much each will be affected will become more clear in 2014.
Right after the shooting, news reporters were drawn from far and wide, competing to cover for this momentous story. To the people of Newtown, the crush of attention felt oppressive and invasive. Police, understandably, felt especially protective of the bereft.
Newtown authorities didn’t release the 911 tapes that the Associated Press requested, and Newtown’s town clerk refused to provide death certificates as required by law. When the public and press invoked the FOI act, law enforcement officials had many ways to say no. And they did.
At first, they could claim the ongoing criminal investigation exemption as the basis for withholding records. Newtown police and Danbury Prosecutor Stephen Sedensky III dragged out the process for many months. They opposed release of the 911 tapes on the flimsy grounds that the callers reporting the massacre were making a confidential report of child abuse, or were witnesses who needed protection.
Even as sources of authentic information ran dry, there was a gush of rumor and Internet reporting to fill the vacuum. Within hours of the shooting there were reports that Newtown was a hoax staged by “crisis actors.” Other reports deemed it real — but perpetrated by anti-gun activists.
Speculation wasn’t limited to those who cherish the Second Amendment. On March 13, filmmaker Michael Moore wrote the following in a blog post: “[N]ow, after the children’s massacre in Newtown, the absolute last thing the National Rifle Association wants out there in the public domain is any images of what happened that tragic day.
“But I have a prediction. I believe someone in Newtown, Connecticut – a grieving parent, an upset law enforcement officer, a citizen who has seen enough of this carnage in our country – somebody, someday soon, is going to leak the crime scene photos of the Sandy Hook Elementary School massacre. And when the American people see what bullets from an assault rifle fired at close range do to a little child’s body, that’s the day the jig will be up for the NRA. It will be the day the debate on gun control will come to an end… And every sane American will demand action.”
The prediction triggered a Fox News story implying that Moore intended to do the leaking. He promptly went on record saying he only favored release of photos with the parents’ assent.
New Realm Of Protection
On a different Internet front – a petition site – parents of three Sandy Hook victims urged Connecticut legislators to prohibit the release of massacre photos, videos, or other disturbing raw recordings.
Such a ban is not easy to legislate. The First Amendment doesn’t permit advance censorship of information – it’s known as “prior restraint,” which is not constitutional. But nothing would prevent adding another exception to the Freedom of Information Act. And that is exactly what the state did.
Without the benefit of any public hearings, and with the help of the governor’s office and the chief state’s attorney, a bill was fashioned to create a new exception for photographic or “other visual image depicting the victim of a homicide, to the extent that such record could reasonably be expected to constitute an unwarranted invasion of the personal privacy of the victim or the victim’s surviving family members.”
With that, the General Assembly launched into a brand new realm of privacy protection, far afield from traditional privacy theories known to common law.
To temper the effect of the new exemption, which passed overwhelmingly this past session, the legislature also set up a 17-member task force composed of politicians, journalists and legal scholars. Known as the Task Force on Victim Privacy and The Public’s Right to Know, it has met a dozen times since Aug. 1 and will be making recommendations to the legislature for 2014.
One of the task force co-chairs is state Rep. Angel Arce, D-Hartford, whose uncle, 78-year-old Angel Arce Torres, was struck by a hit and run driver and gravely injured. A grainy black and white security camera video was released by police in an effort to apprehend the driver. A year later, a suspect was arrested and Torres died.
Personally shaken by this experience, Arce was a strong proponent for limiting press and public access to graphic crime scene images. He says he is hurt and outraged that the video of his uncle continues to be played on television.
Arce’s personal situation, however, illustrates what an inexact remedy the new FOI exemption for homicide scene images provides. First of all, the security camera video was not obtained through the FOI. According to research by First Amendment attorney Daniel Klau, who teaches a privacy law course at the University of Connecticut School of Law, the FOI has not been the source of graphic crime scene images, despite thorough photographic documentation by police of the 1998 Connecticut Lottery shootings and the 2007 Cheshire home invasion.
Secondly, although there is an underlying assumption that families of victims overwhelmingly seek privacy and a lack of media coverage, the opposite may be the case. One example is when a wrongdoer has to be apprehended.
While repeated airing of a disturbing video is regrettable, Klau has noted, this is within the First Amendment’s protection. Arce is objecting to rights provided by the U.S. Constitution, not by the Freedom of Information Act.
As its deadlines for making a recommendation to the upcoming legislative session approaches, the task force is grappling with the idea of allowing inspection of homicide photos in a police station. So far, even this compromise has failed to pass.
To date, the legislative and executive branches have been doing most of the talking on these issues. The one non-political branch, the courts, have weighed in only once.
In November, New Britain Superior Court Judge Eliot Prescott, in Sedensky v. FOIC, ruled that the Associated Press and the public have a right to hear the 911 calls made to Newtown police. The tapes identify what happened when, down to the second. They are why we know when the final shot was fired.
They have also shown the dispatchers functioned calmly under pressure, and provide additional insight into the nightmare of Newtown, which to this day is still lacking explanation and defying comprehension.
The immediate future is dark for both Freedom of Information and the First Amendment freedoms it exemplifies. Part of the problem stems from the way the issue has been framed. The legislative task force is charged with finding a point of “balance” between two ends. One is the public’s right to know — an essential constitutional freedom. The other is the “right” of families of victims to keep otherwise public information secret forever — a brand new legal and moral concept born from the horror of Newtown.
For now, it may not be possible for the elected branches of government — the executive and legislative — to focus on the fundamental importance of an informed public in a participatory democracy. Governors and legislators are mindful of public opinion polls, and in the short term are most likely to join in the public revulsion and work to shroud the worst evidence out of consideration for the sensibilities of the grieving.
The greatest hope that remains for open government may lie with the courts, the Constitution, and the understanding enshrined in law that the sovereign, which in this country is the people itself, deserve to be fully informed. •