A Fairfax County Circuit Court judge heard nearly two hours of argument Friday on whether he should order Fairfax County to release information to the family of John Geer in their civil lawsuit, but he did not issue a ruling. Instead, Judge Randy I. Bellows said he would write a ruling on the case later, and Bellows disclosed that he has been assigned to permanently handle the case.
Geer, 46, was unarmed when he was shot and killed by an unnamed Fairfax police officer in August 2013. No ruling has been made on whether charges should be filed in the case, which has been investigated by the Justice Department’s civil rights division since January. After a year with no ruling and no information from Fairfax authorities on who shot Geer or why, his family filed a civil lawsuit in Fairfax circuit court. The family’s lawyers have begun the standard pre-trial discovery process, seeking information from the defendant, but Fairfax’s lawyers have resisted releasing a single line of information, citing “executive privilege” and the “ongoing criminal investigation.”
Bellows, a former federal prosecutor in Alexandria, asked numerous questions of both sides on the issue of whether the police should disclose information, and he further raised the issue of how he might impose a protective order on any information he did order released. Ben DiMuro, one of the Geer family’s lawyers, opposed any restriction on the information.
“All that’s happening here is delay delay delay,” DiMuro said. “Secrecy secrecy secrecy. The public and my clients are being adversely affected. This concept of criminal investigative privilege is a lot of fairy dust.” Both sides said there was no appellate court law in Virginia on the matter of whether police departments could be forced to turn over information from their files in civil cases, and so Bellows asked for a transcript of the hearing to help him prepare an opinion which could lead to a precedent in such cases in the future.
Assistant county attorney Kimberly Pace Baucom said that Fairfax was taking its direction in part from the Justice Department, because “our investigation has been subsumed by the federal investigation,” and federal prosecutors have requested no disclosures. Bellows raised the issue of a letter sent from the Justice Department to Sen. Charles Grassley (R-Iowa), which said, “The FCPD was not asked to refrain from disclosing information about the shooting. However, the FCPD was advised not to disclose information about the federal investigation.” Bellows wondered if the county could release information specific to the shooting, without discussing federal matters such as grand juries, subpoenas or FBI reports.
“From our perspective,” Baucom said, “there’s no way to draw the line between what can be released and what can’t be released.” As a result, she said, “none of the information should be subject to disclosure.” Baucom also repeatedly invoked the specter of the media obtaining information. “The fear here is that piecemeal release of the information is going to result in the case being decided in the press and determined by the papers. We don’t want that to happen.”
Fairfax authorities feel that a police case is only ripe for disclosure after several steps have occurred: a criminal investigation, followed by a ruling on charges by the county prosecutor, followed by an internal affairs investigation, followed by a ruling on whether internal discipline should result. “This is an ongoing investigation,” Baucom said. “If even the facts are disclosed publicly, then it has the potential to affect the investigation and the deliberative process.”
Baucom said the police have actually begun their internal affairs investigation, rather than waiting for a prosecutor’s decision, because of the civil suit. Bellows asked what the county would do if he ordered information released, to include the officer’s name. Baucom asked that the suit and related documents continue to identify the officer only as John Doe. If the case went to trial, Baucom said there would be “nothing we could do to stop disclosure” of the officer’s name then.
DiMuro wanted all factual information released, and said any protective order or restriction was “totally inappropriate.” He asked, “What’s taking so long? Is the county seriously saying they are still interviewing witnesses? That would be an incredible statement, 16 months later. The integrity of the investigation won’t be impacted. Just saying it doesn’t make it so.”
DiMuro noted that, “The law does not say that civil cases take a back seat to criminal cases…This case is frozen in time. Nothing can adversely affect the investigation.” He cited police-related fatalities in Ferguson, Mo., and Staten Island, N.Y. where authorities released information much more promptly.
Bellows did not say when he would issue his ruling, and he postponed a scheduled hearing for next month.
After the hearing, Geer’s father, Don Geer, spoke to reporters. “I guess we’re beginning to move in the right direction,” he said. “The court is listening. I hope we’ll eventually get some answers. It’s been a very long 16 months. I don’t know much more today than I did the day of the shooting,” which he witnessed from about 70 yards away.
The lawyers for Fairfax County were allowed to leave the courtroom through the judges’ chambers and were not available to comment.
The hearing bore hallmarks of one of the last high-profile police shootings in Fairfax, the death of unarmed optometrist Sal Culosi in 2006. Culosi’s family in that case was represented by DiMuro and Mike Lieberman, who now represent Geer’s family. On the county’s side Friday was Baucom, whose husband, Fairfax police Det. David Baucom, was a central figure in the Culosi case. Baucom allegedly made bets on football games with Culosi, then requested a SWAT team to help him arrest Culosi for illegal gambling. But SWAT Officer Deval Bullock accidentally shot and killed the unarmed Culosi. Bullock was not charged, and after a four-year legal struggle, Fairfax paid Culosi’s family a $2 million settlement.
Also present in the courtroom Friday was the private attorney who oversaw the county’s defense in the Culosi case, David J. Fudala. Fudala watched from the audience and would not say whether he had been retained by the county. “I’m an observer,” he said. “I’m interested in these cases.” If he is hired by Fairfax, he would be the second outside counsel paid by taxpayers to handle the shooting, after the county hired Mark Bierbower to guide its response to an inquiry letter last month from Grassley. Don Geer said Friday that Grassley’s staff indicated to him the senator may take a greater interest in the case when he becomes chairman of the Senate Judiciary Committee next month, when Republicans take control of the U.S. Senate.