As reported in the New Jersey Law Journal, the Appellate Division has confirmed a ruling made by a Superior Court Judge that orders the Middlesex County Prosecutor’s Office to pay two news outlets more than $100,000 in counsel fees after they successfully sued the office for access to 911 call recordings involving the fatal shooting of an individual.

The three-judge Appellate Division panel, in an unpublished decision on March 2, affirmed the $114,402 fee award to the Home News Tribune, which is owned by the Gannett Co., and NJ Advance Media, which publishes The Star-Ledger of Newark.

The Appellate Division Judges stated that the news outlets met the definition of prevailing parties under the state’s Open Public Records Act, even though the prosecutor’s office argued it complied with the law when it provided an edited version of the radio communications.  In its ruling, the court stated that “There is ample evidence in the record for the judge’s determination.”  The Judge awarded $74,818 to the Home News Tribune and $39,582 to NJ Advance Media after finding that they prevailed, which is a requirement for awarding fees under OPRA.

The incident involved a police response at the home of an Old Bridge family.  The report, by the prosecutor’s office, said the use of force was justifiable because an individual repeatedly ignored commands to drop a knife and threatened the officers on scene with it.  At the time that the officers arrived on scene the individual had already used the knife to slit his wrists and stab himself, according to the court. The police officer, that used the deadly force was forced into a position in which he could not retreat, and thus, his actions were deemed necessary.

According to reports in The Star-Ledger, the call for service began when a 911 call came in at 5:59 p.m. on Jan. 14, 2015, for medical assistance for a man with a knife who had reportedly attempted suicide by cutting his wrists. When the two officers arrived, one entered the house while the other retrieved a first-aid kit, the report said.  The first officer was directed to a downstairs room where he encountered a man who “was seated on the floor several feet away with a knife in his right hand,” according to the Star-Ledger. The report said the officer ordered the man to drop the knife, “to which he replied ‘No,’ and made a motion as if to throw the knife in the officer’s direction.”

The officer, who has not been identified, retreated to the stairwell for cover. The report said the man stood up and “began walking toward the officer, brandishing the knife at head level.”  The second officer went into the home and immediately heard the first officer’s vocal commands to drop the knife, the report said. He moved toward the sounds of the first officer’s voice and saw the first officer at the bottom of the stairs, against the wall with his weapon drawn.  From his vantage point in the foyer, he could not see the decedent the report said. “Before officer #2 could advance further, officer #1 fired one shot. Officer #2 immediately notified police headquarters of the shot fired and requested first aid.”

The report said the investigation into the shooting determined that before the original 911 call, the decedent had drawn a knife and attempted to strike his wife, who suffered lacerations to her hand and face. She was able to flee upstairs and wake her son, who on going downstairs discovered his father on the floor, actively bleeding from lacerations to both his wrists, the report said.  The decedent refused to give the knife to his son and reportedly pointed it in his direction when the son tried to take it from him, the report said.

The prosecutor’s office, which initially denied the news outlets’ requests for the 911 tape, eventually produced a redacted version. The news agencies filed a complaint, which the prosecutor’s office defended by arguing that the redactions were justified to protect the identity of the caller and others.  In his ruling the Superior Court Judge stated that the redactions were acceptable but rejected the office’s apparently unorthodox request for a protective order to protect individual identities. He awarded the fees, rejecting the office’s contention that the materials it sent to the newspapers were not as a result of the OPRA litigation.

“We agree with the motion judge that the Newspapers’ lawsuits were a catalyst for the disclosure of the 911 call,” the Appellate Division said. “As early as February 2015, the MCPO knew the Newspapers intended to file OPRA lawsuits if the 911 call was not released. Knowing the Newspapers planned to file litigation, the MCPO filed its ‘procedurally deficient’ motion for a protective order.”

Case law is now beginning to crystalize in regard to documents and audio and video recordings that must now be turned over in regard to Police Officers Use of Deadly Force.  We will continue to review this developing case law and keep our readers informed of the changes that are ongoing in this area of the law.