Officers and Atlanta police officials erased e-mails, text messages and photographs that may offer details of a 2009 raid on a gay bar even though a federal judge ordered the records preserved, according to documents filed in a federal lawsuit.
A year after members of the Atlanta Police Department’s Red Dog unit stormed the Atlanta Eagle bar in Midtown, lawyers for the business and some of the patrons who said the officers violated their civil rights are still trying to learn more about the hours before and the days after the raid.
Their attorneys complained in court filings, which include transcripts of telephone conferences with the judge, that evidence was purposely destroyed. Electronic backups of e-mails were recorded over. Text messages and photos taken on cell phones are simply gone. According to the court documents, the cell phone data was erased just days after U.S. District Judge Timothy Batten ordered the data turned over to the Atlanta Eagle’s lawyers.
“Throughout this litigation the defendants [the city and APD] and their counsel have acted as if the rules, the law and even the orders of this court simply do not apply to them,” attorney Daniel Grossman wrote.
City Attorney Cathy Hampton said, “We take these allegations seriously, and will investigate them thoroughly and respond at the appropriate time. However, we cannot comment in detail because these allegations were made as part of ongoing litigation.”
Atlanta police declined comment.
Atlanta Eagle bar owners and some patrons filed a federal lawsuit against the city and APD that complains of their treatment at the hands of police Red Dog officers during a raid on Sept. 10, 2009. A swarm of officers detained and searched about five dozen customers at the Ponce de Leon Avenue bar, making some lay handcuffed and facedown on the club's floor. Some customers said they were not allowed to move for an hour and that they endured anti-gay slurs from the officers.
Police said the raid was ordered because of reports drugs were sold in the bar and men were performing sex acts while others watched. Eight people were charged with city ordinance violations involving licensing; three of them were acquitted and the charges against the other five were dropped earlier this year.
The federal lawsuit was filed shortly after.
Attorneys are taking depositions and requesting evidence, a process known as discovery.
Grossman, the Eagle’s lawyer, filed a court document asking Batten to order APD to turn over electronic and paper records and for a forensic technician to retrieve cell phone text messages and photos that apparently were deleted just a few days after Batten told them to cooperate.
“Rather than produce evidence pursuant to this court’s order, they destroyed it,” Grossman wrote in a document filed earlier this month. “These violations involved all 35 defendants and at least eight individual attorneys. The judicial process cannot function when parties and their counsel so flagrantly, pervasively and deliberately ignore their obligations.”
Grossman said in his motion APD and Atlanta have missed deadlines to turn over documents and have failed to preserve electronic records. The most recent deadline for the city and the officers to provide electronic information was Sept. 10; Grossman filed his complaint with the court on Oct. 6.
“It sounds like you’ve been jerked around,” Batten said to Grossman during a telephone conference, according to a transcript filed in the case.
Grossman, who declined to comment for this story, did not ask the judge to sanction the city’s four lawyers or any of the officers, but Batten raised that possibility in a telephone conference call with the attorneys, according to a transcript of that conversation.
But the transcripts of two telephone conference calls include assurances from city attorneys that they “have tried to work with” the lawyers for the Eagle owners and patrons.
The Eagle’s lawyer also asked for copies of comments about the raid that officers might have posted on social media networks. Grossman’s contention is that some officers would have shared details with their friends and fellow cops. The city’s lawyers say there have been no such postings.
A 52-page motion, which had nine attachments, focuses on the claim that the police department and officers destroyed records after they were told to give them to the Atlanta Eagle’s lawyer.
Grossman asked for backup tapes of computer records that are routinely recorded over every 90 days. Grossman said Atlanta continued to erase those records after they were requested for the Eagle case and after the judge said they should be preserved.
Grossman also wants 35 officers to give him their cell phones so an expert can examine them. Instead, 22 officers turned in their phones to a departmental technician for inspection. Reports of six of those inspections were given to Grossman for his expert to evaluate.
The motion and attachments detail how text messages and call logs had been deleted from the personal and APD phones that were inspected by the department’s expert.
“There’s no way that there’s no data relevant to this case on all those electronic devices,” the judge said during an Aug. 20 conference call. “That’s just not the way the world works today.”
The APD’s expert’s report given to the Eagle’s expert showed all the records from before Aug. 24 on many phones had been erased. Yet cell phones that were not wiped clean contained text messages or logs of phone calls that were sent or received from the phones with no records of communications.
In the telephone conference on Aug. 20, Tamara Baines, one of the lawyers for APD and Atlanta, told the judge the city has been “working very diligently” to get the information Grossman wants.
A week later another city attorney, Robert Godgrey, said during a conference call with the judge that Atlanta was not “refusing or failing” to comply with the judge’s order, according to the filed transcript.
But the officers were insisting on a written order from the judge – not just an oral order -- before turning over their phones.
“I really do understand, Mr. Godgrey, how these rank and file police officers probably have a little bit of a hard time understanding how a federal judge can just make an oral ruling over the telephone that so significantly impacts their life,” said Batten.
All the same, Batten said, according to the transcript, an oral order was enough and they must turn in their phones.
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