United States District Court, D. Kansas, Fort Riley
MEMORANDUM AND ORDER
KAREN M. HUMPHREYS, Magistrate Judge.
Defendant is charged with one misdemeanor count of disorderly conduct in violation of 18 U.S.C. § 13 and K.S.A. § 21-6203. This matter is before the court on defendant's motion for sanctions based on the government's failure to secure evidence during its investigation of the incident leading to the criminal charge (Doc. 9). The matter has been fully briefed and the court conducted an evidentiary hearing on May 22, 2014. Defendant appeared in person and through counsel, Bruce C. Barry. The government appeared through counsel, Erik D. Lapin, Special Assistant United States Attorney. For the reasons set forth below, the defendant's motion shall be DENIED.
On December 28, 2013, defendant accompanied her young daughter and her daughter's friend, J.S., to the Forsyth Community Center located on the base at Fort Riley, Kansas. When defendant arrived at the Center, a group of young men, including D.L.D. and J.T.J., were playing basketball. After waiting for an opportunity to use the basketball court, defendant allowed the young girls to play on the court away from the game in progress. At some point, one of the young men attempted to pass the ball to a teammate and the ball struck J.S. in the arm.
D.L.D. acknowledged the contact by stating, "My bad." The defendant informed him that "my bad" was not an appropriate or respectful apology. What occurred thereafter is disputed by the parties. The government alleges that defendant aggressively approached the young men and threatened to strike them and get her stun gun. Defendant contends that she was merely trying to explain to the young men the necessity of a respectful apology and did not act in a threatening manner; rather, that the young men acted aggressively. However, the parties agree that after defendant left the community center she returned within several minutes, accompanied by her son, Dion Smith. Defendant testified that because her son's age was similar to the young men she believed that her son might know them and could speak to them about the incident. Upon the defendant's return with Smith, another verbal altercation ensued. The details of that encounter are also disputed. Plaintiff testified that neither she nor Smith threatened the young men; however, this account is disputed by D.L.D. and J.T.J.
Later that evening, Sergeant First Class Scott Potter arrived at defendant's home. While standing outside her home, he asked defendant if she was involved in an incident at the Forsyth Community Center; defendant confirmed that she had been and that she had left the center and returned with Smith. Sergeant Potter testified that he told defendant that she needed to bring her son to the military police station, and defendant then tried to slam the door in his face. Defendant denied this and contended that she merely requested to retrieve her shoes and warmer clothing but was fully compliant with Sgt. Potter's requests. Defendant claimed that Sgt. Potter used excessive force and that he placed a hand on her neck and injured her shoulder. After defendant attempted to shut the door, Sgt. Potter entered the home and secured defendant's wrists behind her back. Sgt. Potter testified that based on the door slam and his training he acted so that defendant could not move to an area where she might retrieve a weapon. Although the witnesses disagreed on the appropriateness of force used, they agreed that Sgt. Potter released defendant to retrieve her shoes and clothing and that she and her son drove in her own vehicle to the police station.
After being questioned and providing statements to the military police, the defendant and Smith were released. Defendant told Sgt. Potter that she planned to visit the hospital as a result of the alleged injury to her shoulder and that she would report him for use of excessive force. Defendant claimed that Sgt. Potter then threatened her by stating that she could go to jail for filing a false report. Sergeant Potter testified that he did not threaten defendant, but simply informed her of the consequences of filing a false report.
In his sworn statement Smith requested that the military police "check the cameras" at Forsyth Community Center. Sergeant Potter's testimony and written statement reflect that, prior to leaving the residence, Smith informed Sgt. Potter that he "wasn't going anywhere until he saw video footage of what he was accused of." Defendant testified that on or about December 29, 2013 she contacted the Forsyth Community Center to request a copy of any video surveillance taken of the basketball courts the previous evening. Defendant was told that any video could not be released to her and could only be released to government authorities. Defendant never contacted the military police or any other entity to obtain the video.
The Information charging the defendant was filed on February 27, 2014. In April 2014, after being appointed to represent defendant, counsel Bruce Barry formally requested the video from government counsel. Government counsel contacted the military police who contacted the Forsyth Community Center. The police were informed that the video no longer existed.
Nick Imel, manager of the community center,  testified that it has three video cameras that capture the entire gym area as well as ingress or egress from the building. He acknowledged that the video equipment does not capture audio. Mr. Imel stated that any video request must be submitted on an official request form and that he should have been aware of any requests, even if submitted verbally. He testified that the video system automatically rewrites itself every two weeks to thirty days, depending on the volume of data recorded. Mr. Imel was not aware of any request from the defendant or the military police for video regarding the December 28 incident.
Defendant seeks sanctions in the form of an order of dismissal or striking certain government witnesses based on the government's failure to secure the video prior to its destruction.
The questions before the court are (1) whether the failure to secure the video recording from the Forsyth Community Center on December 28, 2013 results in deprivation of either "material exculpatory evidence" or "potentially useful evidence;" and (2) whether the government's failure to secure the video amounts to bad faith, if the video ...