The shooting occurred Jan. 20, 2018, in the driveway of Albers’s home, with Officer Clayton Jenison firing 13 shots into the van in two bursts. Steve Howe, the prosecutor in Johnson County, Kan., ruled the shooting justifiable a month later, saying Jenison feared for his life as he emptied his weapon into the van. Howe released two dash-cam videos of the shooting, and then Overland Park and Johnson County went silent, declining to release any reports about the case or identify the officer, citing an exemption in the Kansas Open Records Act. The video, above, seemed to contradict some of Howe’s claims about the case, but he declined to discuss the case and Jenison resigned from the Overland Park police.
Albers’s mother, middle school principal Sheila Albers, filed suit in April, but Overland Park moved to dismiss it before having to comply with discovery requests and turn over documents. Separately that same month, a group of citizens unhappy with the lack of transparency in the case and also with the apparent mishandling of a mental-health case in which the victim reportedly told a friend he was suicidal, formed a new group called JOCO United. The group is advocating for better mental-health training for police and for more information in such cases.
The leader of the group, Mark Schmid, said Tuesday that, in light of the Alberses’ settlement, “I have written the City Attorney this morning requesting that they now provide the previously denied materials.” Schmid filed dozens of freedom of information requests with the city last year, receiving ample numbers of policies and procedures, but no reports on the Albers case. If the city rebuffs him again, Schmid said, “I am prepared to file suit pursuant to the Kansas Open Records Act to obtain them. While I am confident that this action will be successful, it doesn’t change the overall lack of transparency that plagues police departments throughout the State of Kansas and many other places.”
Sheila Albers said that she was “disgusted with the lack of information from the city concerning the actions surrounding my son’s death. It’s appalling.” But after a federal judge threw out Overland Park’s motion to dismiss the case, saying that a reasonable jury could find that Jenison acted without justification, the city appealed.
“It could’ve been years” before discovery started, Sheila Albers said Tuesday. “I think that information can be released, but it doesn’t have to be through my litigation.” She said the stress of the case on her husband and two children, ages 9 and 13, would be prolonged. “That information is public knowledge, and the community should get it. Not just me, the community.”
Overland Park has a policy of not releasing police reports, even to victims of crime, and it also does not release the names of officers involved in shootings unless they are charged, city spokesman Sean Reilly said. In agreeing to settle the case, Overland Park did not admit any liability or illegal act, and the settlement states that it was reached to avoid the cost and length of litigation. The settlement was first reported by the Kansas City Star.
In the federal wrongful death suit, Overland Park argued that the teenager had driven the van at the officer, and that Jenison perceived a threat to his life. The video shows that Jenison approached the van from the right rear, after not knocking on the front door of the Alberses' home, then fired his first two shots from the right side of the van. The van then spun 180 degrees and headed back toward the garage, and Jenison shot an additional 11 times into the van as it moved past him.
U.S. District Judge Daniel D. Crabtree declined to throw out the case on the motion to dismiss, viewing the case in the light most favorable to the Alberses, as required by law.
“Officer Jenison was not standing in the path of the minivan,” Crabtree wrote. He said that “a reasonable jury could conclude that deadly force was unreasonable because [Albers] only posed harm to himself because [Albers] never had expressed a present intention to harm others,” and that Albers had committed no crime and was not fleeing from arrest.
“The city’s decision to pay out over $2 million to settle a case of officer misconduct is inconsistent with claiming that the dash-cam video proved the officer acted reasonably, allowing that officer to resign, and declining to file charges against him," said lawyer Max Kautsch, a First Amendment lawyer in Lawrence, Kan., who is not involved with the case. "The public deserves to know how and why this shift in perspective occurred, what steps are being taken to make the city’s law enforcement officers more accountable, and whether the public can expect a response that is more consistent with the facts in the unfortunate event something like this happens again.”
Schmid, who has battled with Overland Park for information separately from the Alberses, said he was happy that the family was spared years of litigation without assurance of any further legal victories. “If there is anything negative about the settlement,” Schmid said, “it is that there has been no discovery in the case and the Albers and the public still don’t know what Officer Jenison had to say about what happened.” He noted that a team of officers from other departments investigated the shooting, but that their reports have been suppressed, and that any internal review conducted before Jenison’s resignation in March also has not been released.
Schmid said he had prior court decisions favoring disclosure to cite in pursuing records in the Albers case. “As an organization,” Schmid said, “JOCO United is committed to advocate for greater transparency and revisions to the Kansas Open Records Act so that the public has access to information that is rightfully theirs.” He said Overland Park refused to release Jenison’s own reports, classifying them as personnel records.
“Simply saying or labeling something a personnel record doesn’t make it so,” Schmid said. He said Kansas court precedent should enable a judge in a new case to order the reports released.