brief in support of amended plaintiff’s motion to compel with sanctions
TRANSCRIPT
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA DANVILLE DIVISION
ALVIN L. SUTHERLIN, JR.,
Plaintiff,
Civil Action No. 4:15CV00037
v.
LIEUTENANT J. W. SMITH, and
SERGEANT H. S. RICHARDSON, and
OFFICER N. M. SLOVER, and
OFFICER M. C. PACE, and
OFFICER R. C. LANDRUM, and
OFFICER D. C. LANCASTER, and
OFFICER W. C. SHIVELY, and
OFFICER W. R. MERRILL, and
OFFICER J. D. DIXON, and
OFFICER L. D. LAND,
Defendants.
BRIEF IN SUPPORT OF AMENDED PLAINTIFF’S MOTION TO COMPEL WITH SANCTIONS
NOW COMES Plaintiff, Alvin L. Sutherlin, Jr. (Pro Se) requests that this Honorable court accepts this brief in support of the plaintiffs "AMENDED PLAINTIFF’S MOTION TO COMPEL WITH SANCTIONS"
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BACKGROUND AND STATEMENTS OF FACTS
The plaintiff has to date made a multiple Freedom of Information Act (FOIA) requests by email for the release and access to body-worn camera (BWC) videos/audio and documentation of any kind relating to the incident at 505 Jefferson street Danville Virginia on September 25th, 2013 by the defendants.
The first was on February 3rd, 2014. (Dkt No. 11-1, Pageid# : 99). The second was made on July 8th, 2014 and the only documentation that was made available the plaintiff were corresponding emails only. (See attached emails from Major C. K. Wiles, Services Division)
The plaintiff again is seeking access to suppressed exculpatory video data evidence and its Meta data through Evidence.com and its complete audit report trail by subpoena (Dkt No. 30). (Please see: River City Blue - Danville, Va - River City TV- Published on Oct 3, 2014, 26m:24s attached, https://www.youtube.com/watch?v=3jei8nZHsHg ) On this episode of River City Blue the Danville Police Department discusses the implementation of new body-worn cameras to all officers from Taser International with all evidence uploaded to Evidence.com and some information from GENERAL ORDER: OPR. 169 POLICY AND PROCEDURES hosted by Major C.K. Wiles, Services Division)
There should be an independent audit report trail for each defendant's body-worn camera (BWC) on September 25th, 2013. All uploaded data from defendants body-worn camera (BWC) in following with GENERAL ORDER: OPR. 169 POLICY AND PROCEDURES (IV., E. 4), but access to this data has been denied through GENERAL ORDER: OPR. 169 POLICY ANDPROCEDURES (IV., E. 9) which is in direct conflict (IV., E. 11)and in direct defiance of Judge's Order by your Honorable Robert S. Ballou. The application and the use of this policy have led to the denial of exculpatory evidence to the plaintiff at the beginning of his criminal indictments to the present. GENERAL ORDER: OPR. 169 POLICY AND PROCEDURES (IV, E. 9-12 ). The moving parties here are the Chief of Police Defendants, City of Danville Virginia and the Commonwealth Attorney's Office (See: The GENERAL ORDER: OPR. 169 POLICY AND PROCEDURE and Memorandum Of Understanding (MOU)s (Dkt. No. 42-2) attached)
The plaintiff would respectfully ask the court to consider adding these parties as defendants in this case. If requires the plaintiff must file a separate motion for this action. The plaintiff well files the appropriate motion to add additional defendants to that case with its supporting brief.
Following GENERAL ORDER: OPR. 169 POLICY ANDPROCEDURES (IV., E.1-6) the defendants has a duty and responsibility to properly categorize video evidence established within evidence.com. Noting that any "Uncharacterized" video recording will be automatically deleted after 180 days. GENERAL ORDER: OPR. 169 POLICY ANDPROCEDURES (IV., E.4)
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Giving the defendants the ability to have any video evidence automatically deleted after 180 days which can lead to the spoliation of video evidence of by simply allowing any piece of video evidence to be listed as "Uncharacterized" than by granting full autonomy to the superiors having full and final decision-making has allowed the spoilage and the violation of the plaintiffs due process rights by the denial the plaintiff evidence within their possession following GENERAL ORDER: OPR. 169 POLICY ANDPROCEDURES (IV., E. 9) has allowed of multiple civil rights violations to have taken place against the plaintiff. ( Bradley S. TANNER, et al. v. CITY OF VIRGINIA BEACH - See more at http://caselaw.findlaw.com/va-supreme-court/1281336.html#sthash.MEtryq2G.aIjm50cE.dpuf)
The request was denied pursuant to § 2.2-3706 (A)(2)(a) and GENERAL ORDER: OPR. 169 POLICY AND PROCEDURES (IV., E. 9), at this time the plaintiff and Ms. Brittney C. Logan, were both being tried jointly and equally on criminal felony charges in City of Danville Circuit Court. Both plaintiff's and Ms. Brittney C. Logan attorneys filed separate Motions of Discovery for same videos and information and two completely different sets of videos sets edited videos of the original videos were given records have yet to have been made available to identify if the editing was done by the city of Danville police department or the commonwealth attorney's office. This information is found within the audit records for each video uploaded to Evidence.com within the City of Danville Police Department's Evidence.com database or from Taser International. This is created for each officer's body-worn camera (BWC) from each defendant at the end of each officer's shift.
On December 8th & 22nd, 2015 the plaintiff filed two subpoenas served on the City of Danville Police Department (Dkt No. 23&30) in an effort to have the defendants make available suppressed exculpatory evidence that was not made available during the plaintiff's civil and criminal proceedings in Danville Circuit Court. A first small set of edited police camera videos were made available under discovery on January 21th, 2016 before the Motion to Suppress during the plaintiff's criminal proceedings. During this hearing is when Officer L. D. land first committed perjury during the plaintiff's criminal proceeding. The displaying of the video evidence "Landrum One" was in full control at all times by the Assistant Commonwealth Attorney Mrs. P. Haskins during the Motion to Suppress Hearing in this way she made sure that the Honorable Chief Justice Judge J. Milam Jr. was not able to review the beginning part of the video showing the illegal no-knock entry of the defendants into the plaintiff's home. The plaintiff's Attorney Ms. Sharron Ashby having little or any knowledge or experience relating to the use or control of electronic devices with the assistance Attorney Mr. Marvin L. Smallwood, (Office Of The Public Defender) She truthfully express her ignorance in this area to Honorable Chief Justice Judge J. Milam Jr. during the hearing to remove her as the plaintiff's counsel (See: Transcripts p145, line 24- p146, line 5). This Motion to Dismiss hearing was requested by the plaintiff "Alvin L. Sutherlin Jr." (See: Transcripts from motion to dismiss on march 26th, 2014 in the Circuit Court of Danville Virginia pages 132-157)
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In a successful effect to covering up the illegal actions and no-knock entry by the defendants into the plaintiff's residence (505 Jefferson St., 1st Floor, Danville Virginia 24541) on September 25th, 2013 and allowing her first and only witness the defendant Officer L. D. Land an opportunity to offer his perjured testimony unchallenged. The Assistant Commonwealth Attorney Mrs. P. Haskins also delayed disclosure of a second set exculpatory video evidence until February 18th, 2016 (Dkt. No.42) after the Motion to Suppress Hearing finalized.
All of the video evidence in the first set of videos were identified by the name of the officers within the title. The disclosure of the second set of videos was made without any means of identification within the titles with the officer's name used for identification purposes. This information should have been made available when the videos were edited and made available to the plaintiff during his criminal proceedings as was done to the first set of videos that were edited and made available under discovery to the plaintiff.
The plaintiff requests that the court compels the defendants to clearly identify each and all body-worn camera videos including any and all of Metadata. In this way, each video in this data can be identified to each defendant's present at the plaintiff's residence on September 25th, 2013 and including each audit trail for each defendant's body-worn camera (BWC). If for any reason the defendants are unable or unwilling to provide this necessary information.
The plaintiff respectfully asks this court to Order Taser International to provide all relevant data in their possession from the City of Danville, Police Department from all of the defendants present at the plaintiff's home on September 25th , 2013.
The video titled: "AXON_Flex_Video_2013-09-25_1448" from the second set of video evidence is from the body-worn camera (BWC) of the defendant Officer W. R. Merrill. He was the very first officer to illegally enter the plaintiff residence. In this video, it is clearly shown that it was an illegal no-knock entry into the plaintiff's residence violating the plaintiff's civil rights under the 4th Amendment. If this second set of videos were made available before the Motion to Suppress Hearing it would have been able to challenge the perjured testimony given the defendant Officer L. D. Land. This very important exculpatory video evidence was never made available to Attorney Ms. S. Ashby before the Motion to Suppress Hearing. This exculpatory video evidence would have clearly challenged the perjured testimony of the defendant Officer L.D. Land and others defendants during the plaintiff's criminal proceedings. having exculpatory video evidence was purposely withheld and purposely suppressed by the defendants and did not disclose the fact that the videos had been edited from the original. The fact that Assistant Commonwealth Attorney Mrs. P. Haskins obvious review the evidence before trial simply means she was fully aware that the officers never knocked and announced their presence before entering the residence. With this fact, the Assistant Commonwealth Attorney can't take the position of plausible deniability and deny having no knowledge of the first civil rights violations by the defendants. The knowledgeable and willful withholding of evidence and knowledge from the
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court and the plaintiff in itself is a clear civil rights violation.( See: Brady v. Maryland, 373 U.S. 83 (1963))
The Assistant Commonwealth Attorney Mrs. P. Haskins in her actions violated Virginia State Law § 19.2-265.4. Failure to provide discovery of exculpatory evidence is a direct violation of the plaintiff 's under the 14th Amendment.
§ 19.2-265.4. Failure to provide, reads as follows:
A. In any criminal prosecution for a felony in a circuit court or for a misdemeanor brought on direct indictment, the attorney for the Commonwealth shall have a duty to adequately and fully provide discovery as provided under Rule 3A:11 of the Rules of the Supreme Court. Rule 3A:11 shall be construed to apply to such felony and misdemeanor prosecutions. This duty to disclose shall be continuing and shall apply to any additional evidence or material discovered by the Commonwealth prior to or during the trial which is subject to discovery or inspection and has been previously requested by the accused. In any criminal prosecution for a misdemeanor by trial de novo in the circuit court, the attorney for the Commonwealth shall have a duty to adequately and fully provide discovery as provided under Rule 7C:5 of the Rules of the Supreme Court.
B. If at any time during the course of the proceedings it is brought to the attention of the court that the attorney for the Commonwealth has failed to comply with this section, the court may order the Commonwealth to permit the discovery or inspection, grant a continuance, or prohibit the Commonwealth from introducing evidence not disclosed, or the court may enter such other order as it deems just under the circumstances.
Under the Exclusionary Doctrine, several pieces of evidence should have been suppressed before the plaintiff's criminal proceeding because they were obtained through and after illegally police misconduct. This places evidence within the criteria of "fruit of the poisonous tree". Went the number of civil rights violations and violations of state law by the defendants. This act of Judicial Misconduct by the withholding and manipulation of exculpatory evidence during the trial by the Assistant Commonwealth Attorney Mrs. P. Haskins and perjured testimony by the defendants against the plaintiff . Is what was used to gain a ruling against the plaintiff at the conclusion of the Motion to Suppress in the Circuit Court of Danville Virginia resulting in a complete cover up of all illegal civil rights violations and perjured testimony by the defendants at that time.
The one video that was submitted into as an exhibit of evidence "Landrum 1". This piece of evidence was not properly maintained as an exhibit of evidence for appeal to the Virginia Court of Appeals. Violating the plaintiff's civil rights under the 14th amendment. The plaintiff appealed his case to the Virginia Court of appeals being found not being able to afford his own Attorney. The Honorable Chief Justice Judge J. Milam Jr. assigned Attorney Mr. James Martin to represent
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the plaintiff in his appeal from the trial court and ordered copies of the transcripts for trial pursuant to §§ 19.2-165 and 19.2-326. Shortly after receiving copies of these transcripts Attorney Mr. James Martin was notified that a key piece exculpatory of evidence video "Landrum-1" was not maintained as an exhibit of evidence by the Circuit Court Clerk's Office of Danville Virginia for his case under appeal by the plaintiff. (See: Correspondence by Emails and Letters with Attorney Mr. James Martin)
The withholding of this or any exculpatory evidence is a violation of 14th amendment denial of due process rights and a violation of state law. This withholding of exculpatory evidence from the plaintiff's case under appeal did cause a violation of the plaintiff's civil rights. Without this key piece of exculpatory evidence his appeal was denied by the Virginia Court of Appeals and is now has been appealed to the Supreme Court of Virginia. This video was not made available as an exhibit of evidence to the Virginia Court of Appeals at the beginning and was only considered at the end with the filing of a Writ of Certiorari was filed on October 9th, 2015 by Attorney. James Martin. This was first requested at a hearing on June 29tth, 2015 after being rescheduled from June 9th, 2015 by the Honorable Chief Justice Judge J. Milam Jr. and the plaintiff's behalf. (See copy attached: Letter to the Honorable Chief Justice Judge J. Milam Jr., Per Curiam & Writ of Certiorari)
The subpoena (Dkt No. 23) December 8th, 2015 reads as follows:
" YOU ARE COMMANDED to produce at the time, date, and place set forth below the following documents, electronically stored information, or objects, and to permit inspection, copying, testing, or sampling of the material. ANY and All UNEDITED body warm cameras (BWC) VIDEO AND/OR AUDIO FOOTAGE, STRED IN WHATEVER MEDIUM, OF INTERVIEW, STATEMENTS, ECT. ON ANY MEDIUM from the following officers named: (SERGEANT H. S. RICHARDSON, OFFICER N.M. SLOVER, OFFICER M.C. PACE, OFFICER RC. LANDRUM, OFFICER D.C. LANCASTER, OFFICER W.C. SHIVELY, OFFICER W.R MERRILL, OFFICER J.D. DIXON, LIEUTENANT J. W. SMITH, OFFICER L. D. LAND, and/or CAPTAIN D. HALEY) OF, ALVIN L. SUTHERLIN, JR and/or MICHELLE OWENS, WHO RESIDED at 505 JEFFERSON STREET, 1ST FLOOR and Unit #5, DANVILLE, VIRGINIA 24541 and BRITTNEY C. LOGAN from September 25th , 2013 through and to the PRESENT.
The defendants respondent to this subpoena (Dkt. No 23) filed on December 8th , 2015 with a motion DEFENDANTS’ MOTION TO QUASH SUBPOENAS DUCES TECUM ISSUED TO THE DANVILLE POLICE DEPARTMENT AND THE CIRCUIT COURT CLERK’S OFFICE OF DANVILLE, VIRGINIA and BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO QUASH SUBPOENAS DUCES TECUM ISSUED TO THE DANVILLE POLICE DEPARTMENT AND THE CIRCUIT COURT CLERK’S OFFICE OF DANVILLE, VIRGINIA (Dkt. No. 27-28) on December 15th, 2015.The defendants have chosen to the defy this Court's order (Dkt No. 68) by not fully disclosing all the body-worn camera videos
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(BWC)'s. This is a pattern of not provide and withholding exculpatory evidence by the City of Danville Police Department (See: Elder v. City of Danville, Va et al, No. 4:2013cv00047 (W.D. Va. 2014) and not provide all of the unedited videos from all of the defendants present at 505 Jefferson street, Danville Virginia for the September 25th, 2013 as Order filed on 04/01/2016 (Dkt No. 68). The Order reads in part as follows:
Motion to Quash
"Plaintiffs subpoena to the Danville Police Department seeks “[a]ny and all body warm [sic] camera (BWC) documentation filed within the Danville Police Department’s records and/or Evidence.com. Including, but not limited to any officers [sic] failure to activate his or hers [sic] BWC, failure of any BWC . . . any written authorization to edit, alter, erase, duplicate, copy and/or share any BWC video and/or audio.” (Dkt. No. 30). The subpoena requests information about footage obtained from an officer who is not named in Plaintiffs complaint as well as information about footage from September 25, 2013, and thereafter. The Federal Rules of Civil Procedure require that information requested in discovery be relevant to a claim or defense and proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). Plaintiffs request for information about the footage obtained by any officer not involved in the search of plaintiff 's residence or for any period of relevant nor proportional to his claims. Accordingly, the subpoena shall be limited in scope to the footage from cameras worn by officers who were present during the execution of the warrant described in Plaintiffs complaint. The scope of the subpoena shall also be limited to the date and time period of the events described in the complaint and to the officers who are named as defendants in this case. Defendants’ motion to quash is therefore GRANTED in part. Defendants are directed to provide Plaintiff with the information requested in the subpoena (as limited by this order) within twenty-one (21) days of the date of this order." The defendants have not produced any of the supporting body warm camera (BWC) video documentation including from Evidence.com outlined within the subpoena (Dkt No. 30) reads as follows filed on December 18th , 2015:
" YOU ARE COMMANDED to produce at the time, date, and place set forth below the following documents, electronically stored information, or objects, and to permit inspection, copying, testing, or sampling of the material. Any and all body warm camera (BWC) documentation filed within the Danville Police Department's records and/or Evidence.com. Including, but not limited to any officers failure to activate his or hers BWC, failure of any BWC at the beginning or during their shift, any written authorization to edit, alter, erase, duplicate, copy and/or share any BWC • video and/or audio from the following officers named: (SERGEANT H. S. RICHARDSON, OFFICER N.M. SLOVER, OFFICER M.C. PACE, OFFICER RC. LANDRUM, OFFICER D.C. LANCASTER, OFFICER W.C. SHIVELY, OFFICER W.R MERRILL, OFFICER J.D. DIXON, LIEUTENANT J. W. SMITH, OFFICER L. D. LAND, and/or CAPTAIN D. HALEY) in relating to any and all incidents at the location 505 Jefferson Street, Danville, Virginia 24541 on and after September 25th , 2013 involving Alvin L. Sutherlin Jr., Michelle Owens, and Brittney C. Logan."
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All requested documentation by the plaintiff outlined within the subpoena (Dkt No. 30) is in the possession of the City of Danville Police Department's records and under the exclusive control of the Chief of Police or his designee GENERAL ORDER: OPR. 169 POLICY AND PROCEDURES (IV, E. 8-12). Also none of the officers failure to activate his or hers BWC, failure of any BWC at the beginning subpoena. Under Rule 26 the defendants have only made available edited versions of the original body-worn camera (BWC) videos. The plaintiff has
only received some edited body-worn camera (BWC) that have clearly been edited. Listening to the audio portion of the videos you can clearly hear multiple the activate on indicators as different defendants turn their body-worn cameras will back home after being turned off. These videos have already been submitted in as exhibits of evidence to the court. The plaintiff also still has not been given any of the body-worn camera (BWC) videos edited or original versions from OFFICER N. M. SLOVER, OFFICER D.C. LANCASTER, OFFICER L. D. LAND and/or
LIEUTENANT J. W. SMITH of the defendants. All of the defendants, in this case, were present at 505 Jefferson street Danville Virginia 24541on September 25th, 2013 and all were issued working body-worn cameras (BWC) on that day at the beginning of their shift following the Danville Police Department's (BWC)'s GENERAL ORDER: OPR. 169 POLICY AND PROCEDURES (IV., B. 1-2) and all defendants body-worn camera (BWC)'s were active and functioning properly during the entire event that the plaintiff's residence on 505 Jefferson street, Danville Virginia 24541on September 25th, 2013 following the Danville Police Department's (BWC)'s GENERAL ORDER: OPR. 169 POLICY AND PROCEDURES (IV., C. 1-4 & IV., F. 1-2). No sworn affidavits or official documents has been provided to the plaintiff or this court showing that the officers did not properly assigned the correct category to the body-worn camera (BWC) videos using Evidence.com, Evidence Sync, or Mobile App to ensure that the data is retained for the appropriate time period associated with its criminal justice purpose on the day. Following the Police Department's (BWC)'s GENERAL ORDER: OPR. 169 POLICY AND PROCEDURES (IV, E. 1-6).
The defendants to date have not provided any written documentation showing that any of the defendants present 505 Jefferson street, Danville Virginia 24541on September 25th, 2013 failed to activate he or her following the Police Department's (BWC)'s GENERAL ORDER: OPR. 169 POLICY AND PROCEDURES (IV, C. 4.).
The defendants having acknowledged that they have none of the information requested on the subpoena in their possession The plaintiff respectfully asks the court to allow the plaintiff to reissue the subpoena (Dkt. No. 38). to Taser International in line when of items and information sought for in (Dkt. No 30). Taser International will not provide the requested items and information on the subpoena without an Order from this court to Taser International. (Please see: Order (Dkt. No. 32 &38) Taser international has stated in their response to the subpoena that the requested information can be retrieved from City of Danville Police Department. (Please see: response letter from Taser international in regards to subpoena. The Spoliation Doctrine
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interplays with the duty to preserve, a duty which stems from the common law obligation to preserve evidence when a party “has stated that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to the future litigation.” GENERAL ORDER: OPR. 169 POLICY AND PROCEDURES (IV, C. 2-4), (IV, E. 1-13). (See copy attached: Taser International's response letter to subpoena (Dkt. No. 38))
The plaintiff claims damages under the Spoliation Doctrine,
Spoliation is defined as “the intentional destruction of evidence and when it is established, [the] fact finder may draw [an] inference that [the] evidence destroyed was unfavorable to [the] party responsible for its spoliation.” Black's Law Dictionary 1401 (6?th ed.1990).1 Our research reflects that few jurisdictions have acknowledged spoliation as an independent tort. In those few states which have recognized the tort, several courts have likened the harm arising from the destruction of evidence to that suffered by plaintiffs in cases involving intentional interference with prospective economic advantage. This reasoning was first employed in Smith v. Superior Court, 151 Cal.App.3d 491, 198 Cal.Rptr. 829 (1984), where the California court of appeals acknowledged the new cause of action for the first time. Noting that “for every wrong there is a remedy,” the California court held that a prospective civil action in a products liability case was a valuable probable expectancy to the plaintiff, and as such, the court could and should protect that interest from the kind of interference posed by the destruction of evidence necessary to prove such a claim. Smith, 198 Cal.Rptr. at 837. Several other jurisdictions adopted this approach to the tort. See Bondu v. Gurvich, 473 So.2d 1307 (Fla.App.1985); ?Hazen v. Municipality of Anchorage, 718 P.2d 456 (Alaska 1986); ?Hirsch v. General Motors Corp., 266 N.J.Super. 222, 628 A.2d 1108 (1993) (New Jersey recognizes intentional spoliation of evidence as a tort, but not negligent spoliation of evidence); ?Holmes v. Amerex Rent-A-Car, 180 F.3d 294 (D.C.Cir.1999) (holding that negligent or reckless spoliation of evidence is an independent and actionable tort); ?Smith v. Howard Johnson Co., 67 Ohio St.3d 28, 615 N.E.2d 1037 (1993) (holding without explanation that a “cause of action exists in tort for interference with or destruction of evidence”); ?and Coleman v. Eddy Potash, 120 N.M. 645, 905 P.2d 185 (1995).
These states, however, represent what we have determined to be the minority view. We find it instructive that California, the first state to adopt spoliation as an independent tort, has changed course and, more recently, that state's highest court has held specifically that the tort would no longer be recognized. Cedars-Sinai Medical Center v. Superior Court, 18 Cal.4th 1, 74 Cal.Rptr.2d 248, 954 P.2d 511 (1998). In rejecting the logic of the Smith case, the California Supreme Court noted that while “[n]o one doubts that the intentional destruction of evidence should be condemned, ? that alone, however, is not enough to justify creating tort liability for such conduct.” Cedars-Sinai, 74 Cal.Rptr.2d 248, 954 P.2d at 515.
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The California Supreme Court based its decision on a number of public policy concerns, noting primarily the “strong policy favoring the use of nontort remedies rather than derivative tort causes of action to punish and correct litigation misconduct and the prohibition against attacking adjudications on the ground that evidence was falsified or destroyed.” Id. at 517. Chief among these nontort remedies is the evidentiary inference, often quoted in its Latin form, “omnia praesumuntur contra spoliatorem,” meaning “all things are presumed against a spoliator.” This inference, embodied in California's rules of evidence and its standard jury instructions, allows a fact-finder to infer from the destruction of evidence that whatever was contained in that evidence was unfavorable to the party that destroyed it. Id.2 There is at least one Arkansas federal district court decision which recognized this presumption. Carr v. St. Paul Fire & Marine Ins. Co., 384 F.Supp. 821 (W.D.Ark.1974).
In addition to this evidentiary inference or presumption, the California Supreme Court noted the “broad range of [discovery] sanctions for conduct that amounts to a misuse of the discovery process.” Cedars-Sinai, 74 Cal.Rptr.2d 248, 954 P.2d at 517 (internal quotations omitted). In California, these sanctions include “monetary sanctions, contempt sanctions, issue sanctions ? evidentiary sanctions ? and terminating sanctions that include striking part or all of the pleadings, dismissing part or all of the action, or granting a default judgment against the offending party.” Id. at 517-18. Arkansas has similar sanctions, in the form of Ark. R. Civ. P. 37(b)(2), which provides as follows:
(2)Sanctions By Court In Which Action Is Pending. If a person ? fails to obey an order to provide or permit discovery, ? the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
(A)An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(B)An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;
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(C)An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
(D)In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;
In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
It is clear from the facts the that the defendants had a Duty to Preserve under the Spoliation Doctrine, "a party’s duty to preserve potentially relevant documents is paramount for the opposing party to receive a fair trial", under Rule 37(b)(2) explicitly authorizes courts to impose sanctions on a party for failure to comply with a discovery order. The defendants have caused for crucial pieces of evidence to be unavailable. Spoliation is “the intentional destruction, mutilation, alteration, or concealment of evidence, usually a document in this case the evidence consists of documents and videos/audios .” The Spoliation of evidence has occurred through the implication and following of GENERAL ORDER: OPR. 169 POLICY AND PROCEDURE and its Memorandum Of Understanding (MOU).
The defendants and their supervisors, in this case, had a reasonably anticipates of litigation and were fully aware of their duty to preserve all evidence including exculpatory evidence from destruction with the multiple signs of imminent litigation present.
1. The affidavit for the second search warrant and the execution of second search warrant on September 25th, 2013.
2. The indictment and charges brought against Mr. Alvin L. Sutherlin Jr. and Ms. Brittney C. Logan by the Commonwealth Attorney's Office in October of 2013.
3. The filing of the Civil Forfeiture and the felony charges filed by the Commonwealth Attorney's Office against the plaintiff in October of 2013.
4. The submitting of the Citizens Complaint with Captain D. Haley of the Department of Professional Standards.
Captain D. Haley first tried to contact the plaintiff at his place of employment (Woods Menswear, LTD.), but the plaintiff was not working on that day. He then contacted the plaintiff
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on his cell phone. At the time, the plaintiff received a phone call from Captain D. Haley, where he had just concluded a meeting with the Honorable Gerald A. Gibson at the City of Danville Circuit Court Clerk's Office. The plaintiff had sent a complaint by e-mail to his office concerning the actions one of his clerks. Within the e-mail (See attach a copy of the email: Virginia freedom of Information Act (FOIA), Complaint) to the Honorable Gerald A. Gibson, the plaintiff chose to mention that an unknown police officer had come to the plaintiff's place of employment. At the time, the plaintiff did not know the identity of this officer inquiry for him at his place of employment. Only after receiving the phone call from Captain D. Haley is went the plaintiff did the identity of the unknown police officer. Captain D. Haley identify the unknown also has himself to the plaintiff . Captain D. Haley requested that the plaintiff comes to his office to file a Citizens Complaint Form. The plaintiff completed this complaint form on March 3rd, 2014 in regards to the illegal actions of the defendants on September 25th, 2013 at 505 Jefferson street Danville Virginia the plaintiff late in the day and did not have adequate time to complete the citizens complaint form on that one day. Captain D. Haley inquired if why the plaintiffs did not come to his office first before releasing the information to the WSET-13 NEWS. In my interview with Captain D. Haley, I found out that he became aware of the incident at my home on September 25th, 2013 by one of the reporters from WSET-13 NEWS: I had given a copy of the police worn-camera videos and an interview. The plaintiff earlier had contacted WSET-13 NEWS at this time the plaintiffs had already acquired a copy of the of videos from Attorney Mr. Marvin L. Smallwood. Plaintiff admitted he did not know about the Department of Professional Standards within the City of Danville, Police Department. Captain D. Haley told plaintiff that he would allow him to file a Citizens Complaint Form despite the lapse of time did pass. It appeared that Captain Haley had already viewed the police misconduct shown in the video by the defendants. Not having enough time because the late start the plaintiff and Captain D. Haley scheduled a second meeting to complete the Citizens Complaint Form. A copy of plaintiff's interview with WSET-13 NEWS is in the possession of the defendants granted by way of a subpoena. WSET-13 NEWS not given a copy of this interview with the plaintiff. (Dkt. No. 11-5, Pageid# :113-115)
Through Captain D. Haley's investigation having full unfettered access to all unedited body-worn camera (BWC) videos and Metadata from all of the defendants through Evidence.com, including unedited body-worn camera (BWC) videos and Metadata from Officer N.M. Slover, Lieutenant J.W. Smith, Officer D.C. Lancaster and Officer L.D. Land. He had the unique opportunity and ability to view all video evidence including that video evidence which was withheld from the plaintiff's criminal proceedings. Captain D. Haley's did make it known to the plaintiff that he had personally reviewed all of the officers videos present at 505 Jefferson street on September 25th, 2013, this included video evidence from Lieutenant J.W. Smith, Officer D.C. Lancaster, and Officer L.D. Land. To date, the plaintiff still has not been given access to these officer body-worn camera (BWC) videos of any accompanied Metadata from
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evidence.com as described within the Judge's Order (Dkt No. 68) and subpoenas (Dkt No. 25&30). 1711 more teens to seven
The defendants have chosen to violation of all discovery laws Federal and State Law.
Pursuant to Rule 26 the plaintiff respectfully requests that the court Orders the defendants to make available all have only made some of the police narratives available. There should be one police narrative reports for each officer present at 505 Jefferson Street, Danville ,Virginia on September 25th, 2013. The plaintiff has only received a restricted small number of narrative reports. Through examination of the second set of videos, there also was an unknown female officer on the scene. She is in the yard facing toward the street standing in the front yard having a conversation with inquiring as they are coming into the room and house in asking what apartment are they visiting. (See: AXON_Flex_Video_2013-09-25_1247) and she is observed having a conversation with Officer W.C. Shivley . (See: (Shivley 1-Sutherlin) AXON_Flex_Video_2013-09-25_2009 (video-Logan ))
This indicates that the officers were present with the intention of serving the warrant on the Rooming House which is located on the second floor, not the first floor. This inference is supported by statements by the Commonwealth Attorney's Office " The residence was a rooming house with a common area at the entrance. (T/52). Upon arriving at the residence, police officers entered the common area and made their way to the Appellant’s apartment which was the first one on the left. (See: Brief in opposition to petition for appeal Supreme Court Record No. 151849 Court of Appeals Record No. Danville Circuit Court Nos. 13-1459 & 1460, Pg 4-5)
The identity of each individual defendant was obtained from the information provided by the City of Danville, Police Department from the plaintiff's FOIA request. Through additional observation, a police cruiser is parked in front of the plaintiff's residence and defendant Sergeant H.S. Richardson is seen standing on the passenger side of the vehicle having a conversation with the officer within the cruise. (See: (Landrum 1- Sutherlin) AXON_Flex_Video_2013-09-25_2039 (video-Logan). The identity of these unknown officers should be made available under discovery.
My interview with Captain Haley was recorded in full as policy dictates, but only half of the interview has been made available under Rule 26 the second day meeting with Captain Haley. The first part of the interview is omitted from Disc that was provided by the defendants under Rule 26 Initial Disclosure. The plaintiff made two visits to Captain Haley's office to complete
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the interview and filling out the citizen complaint form. The first part of the interview should also be made available to the plaintiff under
Rule 26. On June 9, 2014, the plaintiff receive a letter from the Chief of Police, Colonel Philip A. Broadfoot. (See: Response Letter from Chief of Police, Colonel Philip A. Broadfoot attached ).
Taser International does conduct regular daily business with the City of Danville, Police Department through Evidence.com interfacing with the Axon Cameras used by their officers who a upload data through their Computer Network on a daily basis. Taser International is seen as a third party in this case and is subject to all rules governing discovery.
The plaintiff is providing the most up to date information possible about available from Taser International from their website on April 29th, 2016, to provides the most accurate and up to date information about Evidence.com data management software and its interface with the Axon Cameras body-worn cameras into all company equipment to all of its features and its capabilities.
Evidence.Com
"Digital Evidence Management"
Information provided from Taser international's website: (http://www.axon.io/products/evidence)
Evidence.Com "Digital Evidence Management"
Evidence.com: Digital Evidence Management, Simplified
As the sources of digital evidence expand, storage alone isn't enough to keep track of the body-worn camera videos, photos, audio recordings, and other data that is overwhelming agency servers and systems. Evidence.com is a robust end-to-end solution that not only allows agencies to store all that data, but also enables new workflows for managing and sharing that data.
Officers and command staff can upload content from Axon and TASER devices or other systems easily, manage it simply with search and retrieval features, and then collaborate effortlessly with prosecutors by using powerful sharing features. When storage needs increase, the cloud-based system allows agencies to scale instantly and cost-effectively.
Evidence.com Features
Evidence Search
Avoid paper pushing with simple online searches. Find evidence by date, title or key words.
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Cases
Group evidence by case for easy lookup and effective collaboration with the DA.
Sharing
Spend less time as a courier of evidence and more time on the street. Share evidence internally or externally by sending a secure link.
Chain of Custody Tracking
When it comes to protecting the truth, data integrity is our top priority. Ensure chain of custody with evidence data hashing (SHA1) and detailed audit logs.
CAD/RMS Integration
CAD/RMS Integration automatically tag your Axon videos with the correct information, saving your agency time and money.
Roles and Permissions
Configure Evidence.com to a structure that works best for your agency. Customize permissions to ensure responsibility is appropriately distributed.
Axon Capture: Evidence Management for iOS and Android Devices
Information provided from Taser international's website: (http://www.axon.io/products/capture)
Axon Capture is an application built specifically for law enforcement that allows officers to capture digital evidence right from the field. The app eliminates the need to carry three separate devices for photo, video, and audio recording. Instead, it builds upon the capabilities already in your pocket with the security and organization needed to protect truth. You can add tags, titles or GPS coordinates to any recordings before you upload the data to Evidence.com.
Mobile Media Management
Until today, officers have had two options: sacrifice security for convenience, or convenience for security. With Axon Capture, recording evidence is easy and managing it is secure. Photos and videos are automatically tagged with GPS locations, and metadata can be added and synced to
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your Evidence.com profile without leaving the scene. And evidence is secured by pin to prevent unauthorized access in the event of phone loss or theft.
Leverages smartphone features for digital evidence recording Photos and videos are automatically tagged with GPS data Metadata can be added directly from the scene Integration with desktop Evidence.com platform is seamless Data plans, deletion policies, and security protocols are fully customizable
Axon Body 2: Unlimited HD. No Distractions.
Information provided from Taser international's website: (http://www.axon.io/products/body2)
Axon Body 2 builds upon its predecessor's powerful simplicity to bring you advanced technology with the same low maintenance. The single-unit on-officer camera now features upgraded capabilities like unlimited HD video, Wi-Fi video offload and industry-leading security enhancements.
Beyond a Camera and Beyond Compare
Behind the simple camera design lies a platform capable of performing virtually anything you can imagine. The hardware supports full wireless connectivity for triggering, streaming, and integration with the industry-leading suite of mobile and cloud applications. With feature improvements and updates every 30 days, Axon Body 2 is a scalable, future-proofed video solution for police officers.
Retina HD Video: The industry's best low-light video now records in HD.
Dual Audio Channels: Make voices much more distinct with audio tuning and noise reduction.
Full-Shift Battery: Lasts for over 12 hours.
Pre-Event Buffer: Capture up to 2 minutes before an event.
Wi-Fi Video Offload: Axon Body 2 is capable of wireless offload to the cloud.
Wireless Activation: Axon Signal starts the camera with light bar and other sensor activation.
Mobile App: Stream, tag, and replay videos right on your phone with Axon View.
Optional Mute: Ability to disable audio in the field to support dual-party consent.
In-Field Tagging: Mark any important points in your video.
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Unmatched Durability: Built to withstand extreme weather and brutal conditions.
Advanced Security: Evidence is encrypted at rest on the camera to protect data at all times.
Axon RapidLock Mounts: Versatile mounts keep the camera steady during tough situations.
The subpoena (Dkt. No. 30) was first filed December 22nd, 2015, 18 weeks/126 days ago as of April 26th. The second subpoena served on the City of Danville, Police Department specified evidence only from officers presence at 505 Jefferson street on September 25, 2013, in line with the court's Order. (Dkt. No. 68)
An adequate amount of time has been granted to the defendants to produce the requested information this is one more reason for the application of sanctions in this case.
The plaintiff respectfully requests that the defendants bear the cost of any and all expenses arising from delivery, execution, serving and fulfillment of subpoena to Taser International. In light of the fact that Taser international will be providing any or all of the missing evidence that is no longer in the possession of the City of Danville, Police Department for whatever reason the responsibility should be on the defendants in light of the Spoliation in this case.
Plaintiff respectfully asks this court to grant an Order to compel Taser International to comply with the subpoena the team and 1/2. (Dkt. No. 38)
Plaintiff respectfully asks this court to grant this motion for sanctions against the defendants and to find a defendant's in contempt of court.
DVD attached contents list: BRIEF IN SUPPORT OF AMENDED PLAINTIFF’S MOTION TO COMPEL WITH SANCTIONS, Attachments-BRIEF IN SUPPORT OF AMENDED PLAINTIFF’S MOTION TO COMPEL WITH SANCTIONS and Letter To the Honorable Judge (all in word fomat .doc) andMilam and River City Blue - Danville, Va - River City TV (video .mp4 format)
Alvin L. Sutherlin, Jr. (Pro Se)
505 Jefferson Street, 1st, Floor
XMr. Alvin L.Sutherlin,J r. (pro se)
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Danville, Virginia 24541-2037
434-728-2673 (Cell phone)
I hereby certify that the foregoing notice of lawsuit was sent by regular mail, postal paid or hand delivered, this 29th, day of April, 2016 to Clerk of Court of The United States District Court For Western District of Virginia Danville Division and I also hereby certify that I have mailed or hand delivered a copy of the foregoing to the office of Daniel, Medley & Kirby, P.C, 110 North Union Street P. O. Box 720, Danville, VA 24543-0720
XMr.Alvin L.Sutherlin,J r. (pro se)