A Kanawha County judge has ruled that West Virginia jail officials must make public a video depicting a correctional officer throwing flash-bang grenades inside an inmate's cell.
Circuit Judge Joanna Tabit found that the video doesn't fall within exemptions to the state's Freedom of Information Act. She ordered last month that attorneys representing the West Virginia Regional Jail and Correctional Facility Authority turn the video over within five days to Charleston attorney Paul Stroebel, who represents an inmate who alleges that he received severe burns earlier this year while incarcerated at the Western Regional Jail, in Barboursville.
Attorneys for the Jail Authority appealed Tabit's ruling to the West Virginia Supreme Court. A decision by the judge not allowing the Jail Authority to wait until after justices rule before handing over the video also has been appealed.
Ben Freeman, an assistant attorney general, argues that the video footage is private because of an exemption to the FOIA that relates to the design of jails and detention facilities. Information that, if released, could be used by an inmate to escape from a facility or injure another inmate or staff member is exempt from being released.
Tabit wrote that "nothing on the videotape would put any inmate, resident or facility personnel at peril nor could the same be used by any inmate to facilitate any type of an escape from the facility."
Stroebel, in September, asked Tabit to require the jail authority to respond to his FOIA request and turn over photos and videos from an incident involving his client, Shane R. Marcum.
During a hearing on Oct. 13, Stroebel told the judge that the Jail Authority didn't want to produce the video because, "It paints them in a terrible light - it's awful."
Marcum is one of three defendants accused in connection to a slaying last year in Wayne County.
Tabit ordered attorneys for the Jail Authority to give Stroebel all the information, except the video, that he requested. Some of the information requested was handed over voluntarily.
The judge told attorneys that she would review the video privately, before making a decision about whether it should be made public.
Tabit wrote that the video depicts four individuals approaching and entering a common area of the jail. They instruct Marcum to get on the floor and proceed up the stairs to his cell.
"One of the men bangs on the cell door. One of the men throws a flash-bang grenade into the cell. Then, the same individual throws another flash-bang grenade into the cell. [Marcum] is again instructed to 'get on the floor.' Once the fumes from the explosions dissipate, two individuals enter the cell and restrain [Marcum] while another watches guard," the judge wrote.
"The group of four individuals appears to be joined by others, and [Marcum] is carried out of his cell and down the stairs to the common area of the facility, where he is placed on a gurney. He is then pushed through the hallway, apparently to medical, where health care personnel appear to be checking his vital signs. [Marcum] is then taken outside and, although dark, it appears that he is being placed into a vehicle for transport," the order states.
In August, Marcum filed a lawsuit in Kanawha Circuit Court against the Jail Authority and members of its "special-response team," Austin G. Burke and Tim Kemper. The lawsuit alleges that prisoners are being subjected to excessive force and cruel and unusual punishment, including flash-bang grenades and "stinger" grenades while they're in the state's regional jails.
An attorney for Kemper moved the lawsuit to federal court, where it was assigned to U.S. District Judge Joseph Goodwin. Goodwin will decide whether it should remain in federal court or be sent back to Kanawha Circuit Court. That case also had been assigned to Tabit.
In addition to the claim that the video was exempt under the FOIA, attorneys for the Jail Authority asked that Tabit not grant its release because of the underlying civil action in federal court. Instead of filing a FOIA request, they said, Stroebel should have sought the video through the civil discovery process in federal court.
Tabit also denied that argument.
In a separate lawsuit against the Jail Authority and members of the response team, which has been assigned to Tabit, Stroebel represents Michael Harshaw Jr.
Harshaw alleges that inmates are being subjected to excessive force in regional jails and says he was shot with a projectile inside his cell at the Southern Regional Jail, in Raleigh County, after members of the response team claimed they could not see his hands.
Harshaw was convicted in 2013 of distributing oxycodone.
Reach Kate White at kate.white@wvgazettemail.com, 304-348-1723 or follow @KateLWhite on Twitter.