The Mercury News

Judge mutes bid to punish attorneys for video release

He rules body-cam video should not have been confidenti­al.

- By Robert Salonga rsalonga@ bayareanew­sgroup.com

SANTA CLARA >> A federal judge denied the City of Santa Clara’s bid to severely punish a pair of attorneys who won a $6.7 million excessive-force settlement after they released damaging police bodycamera video against a court order, ruling that the video should never have been shielded from public view.

Magistrate Judge Nathaniel Cousins, however, ordered Oakland-based attorneys Michael Haddad and Julia Sherwin to pay about $70,000 in legal fees to the city and a group of Santa Clara police officers. The order stemmed from a civil-rights lawsuit filed by a San Jose woman whose leg was broken when she tried to prevent them from entering her home without a warrant to arrest her teenage daughter in 2016.

Cousins rejected the city’s assertions that the attorneys should be held in civil contempt, forfeit their portion of the multi-million dollar settlement reached last fall, be discipline­d by the American Bar Associatio­n, and be forced to pay out additional monetary sanctions.

The legal fees were limited to the cost of the city seeking penalties for Haddad and Sherwin for releasing the video, which the attorneys acknowledg­ed was based on an errant assessment. But in his decision, signed last month, Cousins wrote that their attempts to vet the video’s confidenti­al status “were woefully inadequate to the point of negligence.”

“Unfortunat­ely, this mistake happened and it was connected with one of the largest settlement­s we ever had,” Haddad said, adding that the oversight was an anomaly for his firm. “But fundamenta­lly, the video should never have been confidenti­al in the first place. People in the city and the

police department were angry about the size of the settlement and embarrasse­d about the publicity around it.”

Cousins granted Haddad’s related motion to remove the video’s protected status, which effectivel­y negated most of the sanctions sought by the city.

“Because the public’s interest in the video’s disclosure outweighs any risk of harm, the court grants (the plaintiff’s) motion to remove the video’s confidenti­ality designatio­n,” Cousins wrote.

In refraining from imposing additional sanctions against the attorneys, Cousins wrote that “Haddad and Sherwin have rightly met with embarrassm­ent and strife from their imprudent behavior, and the court is optimistic that this will deter future misconduct.”

The police body-camera video, recorded April 12, 2016, showed plaintiff Danielle Burfine — whose last name was Harmon when the suit was filed — refusing to let Santa Clara police officers into her Rose Garden home to arrest her teenage daughter in connection with an earlier snackshack arson at Santa Clara High School. The daughter was eventually arrested and convicted of the crime.

A sergeant kicked in the front door and at some point Burfine fell to the the ground — the sides disagree on whether she was thrown — and her leg hit a stone pillar. When the settlement was finalized in September, Haddad released a 12-minute video excerpt of the encounter, which showed Burfine screaming in pain.

Within 24 hours, Haddad had Burfine take down the video she had posted after discoverin­g that the video should not have been publicly released as he had previously thought. But the video, which was re-posted by news organizati­ons including the Bay Area News Group, already had been widely distribute­d on the Internet.

The city of Santa Clara and its police department contend that the video was strategica­lly edited, with Chief Michael Sellers telling KBCW that it “convenient­ly stopped at the point she admitted that it was an accident,” according to the court filing containing Cousins’ ruling. The defendants also argued that the video release put the officers at risk, a claim that Cousins rejected on the basis that their actions occurred in plain sight and any alleged harm was “outweighed by the public interest in transparen­cy.”

In the wake of the settlement, Sellers said in a statement that “if this case were brought to court, we would have provided evidence and testimony demonstrat­ing that our officers’ actions were fully within the law and in accordance with accepted police practices … It’s disappoint­ing to not have that opportunit­y. I fully support the police officers who acted in good faith to arrest this arsonist wanted on felony charges.”

City Attorney Brian Doyle, also in a post-settlement statement, acknowledg­ed that the officers did not have a warrant when they forced entry into Burfine’s home, and a city statement contested the extent of Burfine’s injuries, which Haddad said included Complex Regional Pain Syndrome, a chronic pain condition.

Haddad said he understood the court’s order that his firm pay the city’s legal fees — due Wednesday — to litigate the video release, and was heartened by the broader ruling.

“The judge made the point that the video should have always been made public, but there was a court order making it confidenti­al and everyone has to obey court orders,” he said. “He was making a point to us and all other litigants that you must never disobey a court order, even by accident.”

 ?? COURTESY SANTA CLARA POLICE ?? This image shows a Santa Clara police sergeant involved in the case that led to a $6.7 million settlement of a federal lawsuit.
COURTESY SANTA CLARA POLICE This image shows a Santa Clara police sergeant involved in the case that led to a $6.7 million settlement of a federal lawsuit.

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