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Although a federal court gave the city of Indianapolis and the Indianapolis Metropolitan Police Department until Nov. 28 to release body camera videos from the night Herman Whitfield III died while in police custody, the court also told the defendants they could delay the production of the raw footage by filing a motion to stay.
Following an in-person hearing Monday, Magistrate Judge Mark Dinsmore of the U.S. District Court for the Southern District of Indiana issued the ruling in The Estate of Herman Whitfield, III v. The City of Indianapolis, et al., 1:22-cv-01246.
The minute entry stated no further extensions to the Nov. 28 release date would be given. However, the order also stated that if the defendants file a motion to stay discovery, they would have to produce the video three business days after the court rules on the motion and/or lifts the stay.
Attorneys for the opposing sides were in court arguing over the defendants’ motion for an extension of time to respond to the plaintiff’s request for the videos.
The city and IMPD said more time was needed because the videos were not available due to a criminal investigation into the incident. The Whitfield estate countered the defendants cannot claim the release of the videos would impair a criminal investigation because an edited version of the body camera footage had been posted on IMPD’s official YouTube channel since June 2022.
Anthony Overholt, member of Frost Brown Todd, represented the defendants at the hearing. He declined to comment afterward.
Also, the city and IMPD declined to comment while the litigation is ongoing “…out of respect for the judicial process.”
Richard Waples of Waples & Hanger and Israel Nunez Cruz of Cruz Law Firm are representing the plaintiff.
“We think it’s important for IMPD to release it to the public because, again, it shows what happened,” Waples said after the hearing. “They released an edited version of one of the videos with their narrative about what happened and their spin on it but not in an objective manner whatsoever. We want the objective evidence to get out there.”
Whitfield’s family filed the wrongful death lawsuit in June, claiming the IMPD officers used “unreasonable, excessive, and deadly” force that caused his death.
Gladys and Herman Whitfield Jr., Whitfield’s parents, had called for an ambulance on April 25 to help their son, who was having a “mental health crisis.” Six police officers arrived and, according to the complaint, eventually tased and handcuffed Whitfield even though he was not acting in a threatening or dangerous manner.
The Whitfields were at the hearing, seated at the table with Waples and Cruz.
“We’re confident that our attorneys will make the best attempt that they can to ensure that we do get justice, and I also have confidence in the court, as well,” Gladys Whitfield said after the hearing. “I have confidence that Judge Dinsmore will see the fairness and apply the law to the facts.”
The plaintiff has been allowed to privately view some of the raw footage from the body cameras. In court, Waples said Whitfield repeatedly told the officers, “I can’t breathe” while he was handcuffed and being held prone on the floor. That is not included on the edited version.
Overholt pushed back on Waples’ repeated reference to the YouTube video. The defendants’ attorney said the city — not the individual officers involved in the case — had made the decision to release the video. Consequently, releasing the raw footage because of the city’s decision would be unfair to the officers.
That promoted Dinsmore to question whether Overholt represented both the city and the officers, because the city’s action potentially prejudiced the public against the police.
Overholt replied, “I don’t think so.” He said the release of the edited version was trying to balance the interest of the public’s interest with its right to know.
Releasing the videos will not end the dispute because the parties’ interpretations differ as to what the tapes show. However, Cruz said making the footage available will enable the public to make its own decision.
In court, Waples referred to a portion of the video that shows Whitfield being tased. The attorney said the raw footage shows an officer waiting with his taser raised, and even though Whitfield walked out of the kitchen and did not charge at the police, the officer still fired his taser.
Overholt responded that he had watched the video as well and disagreed with Waples’ characterization of Whitfield’s actions.
“We have no doubt that IMPD was responsible for the death of Mr. Whitfield,” Cruz said following the hearing. “If they release the actual unedited version of these videos, we don’t have to rely on what the plaintiff’s lawyers are saying or what the defendants’ lawyers are saying. The public, themselves, will see and be able to judge for themselves.”
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