A shooting, a video, a clash on police records

When police interrogated Hezron Parks after an off-duty Tempe fire captain was shot dead in February, a detective told Parks he had video that “captured everything.”

Parks had turned himself in to Scottsdale police, saying he shot Kyle Brayer in self-defense.

“I wish I could believe that,” one detective said. “The evidence just doesn’t speak to it.”

Later, another detective remarked, “I mean, we can play the video for you.”

The transcript of that interview, released earlier this month, was the first public indication that Brayer’s shooting may have been captured on video. Other police records described a video that police obtained from the dashboard camera of a nearby vehicle.

But request to review that video under public-records law led to a series of denials by Scottsdale officials, who cited two different reasons to block it from the public eye. At the same time, a larger struggle over control of police records was blowing up.

A letter sent to police agencies by Maricopa County Attorney Bill Montgomery, obtained by had spelled out a process in which his office — not police — would make decisions about whether evidence from police investigations could be made public.

When the letter was revealed, some legal experts blasted it as unprecedented intervention; others defended Montgomery’s goal of protecting the integrity of a criminal case.

Ultimately, after the repeated denials, a copy of the Scottsdale video was released to

Montgomery said in a meeting at

that he never blocked its release. There was no reason to do so. The dash-cam footage does not depict Parks nor the shooting. It simply shows a car speeding down the street.

But the video’s eventual release — and the shifting rationale for withholding it — did little to clarify the case against Parks. (His attorney has declined to comment “out of respect for the proceedings and the parties involved.”)

Over the course of the week since then, Montgomery’s claim that his letter was no more than beneficent guidance has unraveled amid conflicting responses from police departments and a denouncement from top officials in Phoenix.

That standoff, between the region’s top prosecutor and others including the fifth largest city in the United States, is now exposing fundamental questions about the future of the public’s right to know about police investigations — and about the execution of justice itself.

Video: Released or not released?

One thing appears clear about the night of Feb. 4: Hezron Parks, 21, shot and killed Kyle Brayer.

But witness statements and police reports paint conflicting accounts about what happened in the moments before.

Brayer, a 34-year-old Tempe fire captain and a U.S. Marine Corps veteran, had been with six other people in the bar district. He was riding on a golf cart, headed south on Civic Center Plaza about 2:30 a.m.

Parks, a U.S. citizen who was born in Belize to a mother from Montana, would later tell police he had been drinking with a group of friends earlier that night at his south Phoenix home. When he left to go club-hopping in Scottsdale, he had taken his .40-caliber handgun for protection and left it in his car. He quarreled with bouncers outside a club and lost his cellphone, which left him separated from his friends, he told police.

Parks’ car came to a stop just behind the golf cart in traffic.

According to police statements shortly after the shooting, witnesses said Parks was revving his engine and that he nearly hit the golf cart. Brayer got off the golf cart and approached the car. Parks fired one round, striking Brayer’s head, then drove away, police said.

Transcripts of witness interviews, released more than three months later, revealed more complicated accounts of what happened. Some witnesses told police that Parks probably felt threatened by Brayer. Others said Brayer was defending himself. Parks said that Brayer and his friend were the aggressors because they began kicking the hood of his car.

State law does not allow the use of physical force “in response to verbal provocation alone,” but does allow deadly force when “a reasonable person would believe that deadly physical force is immediately necessary” to prevent being killed. The police report does not describe Brayer as being armed.

The transcripts and police reports also point to at least three possible pieces of video evidence:

❚ Police reports described obtaining video from a camera on the dashboard of a car near the scene of the shooting. The driver told police about the camera and gave them the memory card.

❚ Officers noted that another witness recorded the scene with her cellphone.

❚ Officers described requesting footage from security cameras on two businesses along the street. They apparently later obtained that footage, writing that it showed “females (unknown) apparently crying and hiding in the minutes after the shooting.”

filed a request for the dashboard-camera video under the state’s public-records law on May 11, before the records describing the other videos were made public.

Police records and evidence are subject to release under the state’s publicrecords law, with certain exceptions spelled out in statutes. Government agencies that deny public-records requests should cite what law allows the record to be exempt from public review.

At the time of the video request, a Scottsdale police-records clerk reached by phone said the request would be denied because the department never releases third-party video.

The city responded to the request in writing four days later. But this time, the city cited a different reason for withholding: Releasing the video could hurt Parks’ 14th Amendment right to due process and potentially taint the jury pool, the letter said.

Then, Scottsdale reversed course. A records clerk said the video would be released. On May 21, the city delivered a copy of the video. The 10-second clip shows only a red Scion that police say is Parks’, speeding away from the scene.

But a county-wide directive about the release of police evidence had already put a separate uproar into motion.

A controversial letter

On May 8, Montgomery had sent a letter to police departments across the county, spelling out a system in which his office would review and decide on how police respond to public-records requests for evidence in criminal cases.

The letter was unusual because the County Attorney’s Office, though it prosecutes such cases, has no authority over city police departments.

Montgomery presented several concerns about statutes that limit certain information from being released, and ethical rules from the State Bar of Arizona that require him to prevent prejudicial statements about a case. He suggested his office was already in control of the decisions about releasing police evidence.

“The following process has been in effect, though not having been reduced to writing, for at least the last three years,” he wrote.

His letter, obtained by and first revealed a week ago, spelled out a process to limit release of video evidence only for law-enforcement purposes, and described how prosecutors could pursue protective orders from judges to help keep records private.

After first report about the letter, Montgomery said his office had not directed Scottsdale to withhold the video in the Hezron Parks case.

“Scottsdale’s initial reaction was, ‘No, County Attorney’s Office said we can’t do this.’ That’s not what I said,” Montgomery said in a meeting at

on Monday.

After becoming aware of the request, Montgomery’s office reviewed the video, he said.

“We wound up looking at it, it didn’t impact any of the concerns,” he said.

As for the city’s initial responses barring release: “It was a mistake,” he said.

sent questions to the Scottsdale Police Department and City Attorney’s Office, asking for the rationale behind the three different answers on releasing video, and asking whether requests for its police records have to be vetted by the County Attorney’s Office.

Scottsdale officials asked for two days to prepare their answers. Then they sent a statement that did not directly address the questions.

The statement sent in an email by Officer Kevin Watts, a spokesman for the department, said the “strong” relationship between Scottsdale police and the County Attorney’s Office has led to successful prosecutions of felony cases.

“The thought process that as a Department we can fill a Public Record Request without input or consultation with all parties involved in the criminal prosecution process is flawed as we do not operate in a vacuum,” the statement says. “This is not a matter of one agency telling another what to or not to release. It is a collaborative team working to ensure a successful prosecution and maintain the rights of all individuals involved including the accused.”

In a follow-up statement, Scottsdale police declined to comment on why

video request was first denied and later carried out, as well as Montgomery’s comments in the meeting with

“We will not be providing comment on our internal decision-making process regarding the release of the Go-Pro video,” said Sgt. Ben Hoster, another Scottsdale police spokesman. “We also will not be providing comment on a meeting that we were not a part of.”

Diverging views on evidence

Video footage, particularly if captured on police body-worn cameras, has emerged as a significant element of modern police investigations. In countless cases, it has served as a way to corroborate officer, witness and victim statements. It also has shed light on police shootings, sometimes to clarify why a shooting is justified, sometimes revealing police misconduct.

Some attorneys, law-enforcement officials and academics contacted by

questioned if Montgomery has the legal authority to implement a policy controlling release of such videos and other police evidence.

Regardless of the decision to release video from one case in Scottsdale, Montgomery’s letter has revealed a patchwork of perspectives on the larger issue of police evidence.

After Montgomery’s statements,

contacted police departments to ask whether they consistently defer to his office on public-records requests.

Mesa police didn’t answer specific questions from but said in a brief statement the department follows the state records-request law and its process of handling records requests “is internal.”

Tolleson Police Chief Wayne Booher said in an email that most records requests are handled internally without the input from the County Attorney’s Office. Still, he said, if someone requests a record that could be evidence, his department may contact the County Attorney’s Office to consult.

“We may, although I can’t recall the last time, contact the county attorney to ensure whatever we are releasing does not interfere with their prosecutorial duties,” the email says. “It would be an extreme disservice to the victim and the taxpayers to risk critical case evidence from being introduced into a court of law.”

Tiffany Smith, a spokeswoman for the Glendale Police Department, said the department is in charge of fulfilling any records requests made to them. But whenever the criminal case involves another law-enforcement office, such as the County Attorney’s Office, the police department notifies the other office about any records that are released. “This process has not changed and has been common practice for some time,” Smith said in an email.

In the Monday meeting at Montgomery said he had begun discussing the idea of new legislation governing the release of police video statewide. “That may be a possible outcome down the road,” he said.

Discord not over yet

As the week went on, two other cities released statements that only heightened the attention on the controversy over Montgomery’s policy.

On Wednesday night, Tempe police announced the end of their investigation of the March crash in which a selfdriving Uber vehicle killed a pedestrian. “The in-depth investigation was submitted to the Maricopa County Attorney’s Office for review,” the statement said. “This is still considered an active investigation and as a result, we will not be releasing the report or details of the investigation.”

On Friday afternoon, top Phoenix officials issued a statement blasting Montgomery’s efforts.

“We are disappointed that the County Attorney has chosen to pursue a path that undermines transparency and would likely further strain police-community relations,” Mayor Greg Stanton and Vice Mayor Thelda Williams said in a statement. “The decision of when and how to release records will be made by Phoenix officials, not those at Maricopa County.”

As for Parks, the 21-year-old who killed Brayer in a shooting that may or may not have been self-defense, he faces charges of second-degree murder, aggravated assault and endangerment.

The next hearing in his case is set for early June.

And the two other sets of video described in police reports — surveillance from nearby businesses and a bystander’s cellphone footage — have yet to be released.

After obtaining the dash-cam video,

filed public-records requests for the other evidence.

On Friday, a records clerk said the request was still pending. The detective and the County Attorney’s Office were still reviewing the videos.