The Times-Independent

Judge Torgerson: MPD body camera misuse ‘detrimental to fair process’Free Access



Seventh Judicial District Judge Don Torgerson during a hearing on Monday, Aug. 30, made extraordinary comments regarding the Moab Police Department’s growing history of officers misusing their body cameras.

Seventh Judicial District Court Judge Don Torgerson. File photo by Doug McMurdo

“My experience with the Moab Police Department is long and varied,” said Torgerson at the conclusion of the hearing, which regarded a City of Moab appeal of a decision by Grand County Justice Court Judge Danalee Welch to dismiss charges against a Native American man who police cited with misdemeanor child abuse on Feb. 23 at City Market.

At that hearing in May, officers Clint Johnston and Dan Malone testified. Both men had body camera issues. Johnston’s wasn’t activated until he made contact with a six-year-old boy who had been left in a vehicle that was parked on the north end of City Market close to the wall. Johnston a few minutes later would mute the audio on his camera in order to confer with Malone and failed to unmute it for the remainder of the incident.

Malone failed to activate his camera when he first made contact with the man and his friend, as well as his friend’s child, inside the store. They had a case of water and a handful of other items and were in the checkout line. His camera was not activated until the group arrived at the man’s vehicle.

Both officers testified they assumed their respective cameras were functioning properly. Johnston, per state law and MPD policy, advised his supervisor of his camera issues. Malone did not.

Grand County Justice Court Judge Danalee Welch. File photo

Welch in explaining her reasoning behind the dismissal cited an officer’s “obligation to use body cameras properly.” Prior to that, the judge said if it was negligence rather than intentional, “It could have been corrected simply by double checking.”

Torgerson was more forceful, his comments made more so due to his decision to dismiss the case against the man, who was represented by attorney Happy Morgan, for entirely different reasons than Welch relied on in her decision to dismiss at the lower court level.

The district judge agreed the facts did not support the charge against the man because the law Johnston relied on requires proof of physical injury. There was no physical injury, and the case fell on that issue.

However, Torgerson felt compelled to comment on Morgan’s second request for a dismissal — spoilation of evidence due to the body camera issues.

By way of offering advice to new City of Moab contract prosecutor Heather Grover, Torgerson said the misuse of body cameras is an “institutional problem” at MPD. “I’m sure people there will take issue with my perspective,” he said, adding the problem is one that “crops up at very important times.”

The way some officers handle their body cameras is “very detrimental to a fair process,” he said.

While acknowledging he didn’t know if Johnston’s and Malone’s incidents with their cameras during the February incident constituted spoilation of evidence, he did review Judge Welch’s ruling and noted that some officers’ behavior could be characterized as spoilation of evidence — defined when one side suspects or uncovers evidence that the other party to litigation or criminal proceedings “deliberately, negligently, or accidentally destroys evidence relevant to the case.”

Utah state law and MPD policy is clear on when officers must and must not activate their cameras. State law requires them to be activated in several scenarios, including upon being dispatched on a call. Anytime they are in contact with a person, barring special circumstances, is also listed as a time when cameras are required.

From Torgerson’s perspective, “officers need to check their body cameras the same way they check their firearms and Tasers.” The judge said modern policing “requires that kind of care” when interacting with the public.

He noted incidents in the past in which officers had turned cameras on and off, or forgot to charge them. “Moab Police Department has a history that lacks quality oversight,” he said.

Moab Police Chief Bret Edge

Chief Bret Edge, however, said he is unaware there is an issue. When asked if he believed there was a problem and if so, what has been done to address it, Edge said, “No, I don’t. I have never been notified that a problem exists with the manner in which our officers use their body cameras, nor am I aware of any issues being identified internally. If an issue should arise, we would document it and take appropriate action to correct it.”

There are, however, others cases of camera issues cropping up in court, including one in June of 2020 involving former Sgt. Steve Risenhoover, who was the supervisor on duty the night of Feb. 23. Risenhoover also has a history with the Native American man Johnston cited. The June 2020 case also was dismissed due to camera issues.

Morgan does not accept Edge’s response, saying there have been several incidents since Edge was promoted in the spring of 2019.

“In the criminal justice system, judges are intentionally kept in the dark on the nitty gritty details until trial, so the fact that the judge has stated it is an institutional problem speaks volumes as to how frequent of a problem this is,” she said.

“And don’t forget, this was not a ruling by one judge but by two judges; first in the justice court and then in the district court with both judges commenting on the body camera issue, so taking Chief Edge at his word — he is either intentionally ignorant or not paying attention because it has reached a degree that now two judges have said it is a problem.

“How they would know that and the chief doesn’t is beyond me. As I see it, this could only by explained by intentional ignorance.”

And while the body camera issue prompted Welch to dismiss the case, the officers’ written reports and oral testimony at the May hearing sharply contradicted what was depicted on their body cameras.

For instance, it was roughly 50 degrees that evening and the men wrote the boy inside the vehicle was not wearing a jacket, but rather a thin, long-sleeved shirt. The camera footage reveals he was wearing a regular hoodie, with the hood up.

Johnston said he wore a mask during the incident, which was mandatory in Utah last February. The footage showed he did not.

Johnston said the boy was crying, but there was no evidence of that in the video. However, the woman who called told dispatchers the boy was having a “super freak-out.” She later told the dispatcher she “hoped she wasn’t being a ‘Karen.’”

File photo by Doug McMurdo

Johnston used the F word in scolding the man for leaving the child in the car when it was cold, but Johnston was wearing a short-sleeve shirt at the time and people walking across the City Market parking lot were in shorts.

He and Malone also lamented on video the fact there was no apparent crime they could use that would lead to the man’s arrest, and Malone said it was unfortunate the man had completed probation. One of them, it’s not clear who, said the man should be taken to jail “out of spite.” Johnston said if he was called to any future incidents he would take the man’s kids to The Christmas Box House.

When asked how officers’ written affidavits can sometimes substantially deviate from what is depicted on their body cameras, Edge said, “Incident reports and [probable cause] statements are generally written from memory and are not intended to be transcriptions of the body camera video. Officers may review body camera footage as time permits but more often than not, time is at a premium as officers usually must remain responsive to calls while writing reports.

“It is not uncommon for an officer to start a report only to be dispatched to another call before completing the report, and for this cycle to repeat itself all day, every day. As a result, officers often end their shift with a backlog of reports to complete as efficiently and accurately as possible.”

It is clear neither Johnston nor Malone reviewed their body camera footage prior to the May hearing. Morgan, a former county attorney and a practicing attorney since 1996, said it was her experience that “good officers review their body camera footage when writing reports. How else can they know they are accurate?”

Last training was January 2019

When asked if officers are properly trained on the use of body cameras, Edge said, “Yes. We produced a class in January, 2019 for all officers when we switched to the Axon body camera system. All officers who were employed by this agency at that time were required to attend. Subsequently, the same content is delivered to new officers while they are engaged in field training.

“All officers have access to our body camera policy in Lexipol. The officers are required to read the policy and acknowledge it via digital signature every time the policy is updated and reissued. Additionally, we utilize Lexipol’s Daily Training Bulletins (DTB’s), which are a set of scenarios issued monthly covering a variety of topics, including body cameras. Officers read each scenario and then answer a question related to it, which enhances their knowledge and understanding of department policies.”

It is unclear why the City of Moab appealed Judge Welch’s decision. Morgan said she hopes the comments from Welch and Torgerson lead to productive changes.