Hearing in Judge Don Harris' courtroom

District Court Judge Donald Harris hears the privacy case of the Billings Gazette and KTVQ vs. Billings police officers trying to prevent their names from being released on May 14.

The three Billings police officers who had sex on duty or on city property opened themselves up to possible blackmail by doing so, and the attorneys representing them made a critical error in initial court filings that resulted in the waiver of their clients' privacy interests on day one, a judge said Monday.

After a roughly hour-long hearing in Yellowstone County District Court on Monday, Judge Don Harris said he would require release of the identities of the three officers by written order, but would stay his order for 48 hours, giving attorneys time to present arguments that the names should not be released pending appeal.

Hearing attorneys

Attorneys argue before District Court Judge Donald Harris as he hears the privacy case of the Billings Gazette and KTVQ vs. Billings police officers trying to prevent their names from being released.

The judge said he would rule on a separate matter — whether the city must release related documents requested by The Gazette — after he has received those documents to review.

The city was ordered to provide those documents to the original judge on the case on April 27, but Harris, who was assigned to the case Friday, said during the Monday morning hearing he had not yet received the documents. The city provided the documents to the judge by Monday afternoon, the judge's clerk confirmed.

In the case at hand, each of the three officers had sex with a city employee in separate incidents between 2013 and 2016, either while they were on the job or in City Hall. The conduct was discovered during an unrelated investigation. When confronted by a supervisor early in 2018, the officers admitted they had sex with the woman in question.

Two officers were suspended for two weeks without pay. A third was suspended for one week without pay.

The officers were granted a temporary restraining order April 23 to stop the city from releasing their names. The Gazette on April 19 requested a series of documents relating to the officers' conduct, including the officers' names.

In the hearing Monday, the judge said the attorneys representing the three unidentified police officers made a critical error in their initial court filings seeking a temporary restraining order by including their clients' names, rather than substituting fictitious names like “Unidentified Officer No. 1.” 

The judge said legal measures for ensuring a client’s privacy were well known and said that because the attorneys neglected to use them, it constituted a waiver of the clients’ privacy interests.

The officers are represented by Scheveck & Salminen Law Firm, of Billings. 

After the documents were filed with the officers’ names, the original judge on the case, Judge Michael Moses, ordered the case sealed, which “bailed out” the officers’ attorneys but put Moses in a “very awkward situation,” according to Martha Sheehy, the attorney representing The Billings Gazette and KTVQ.

(The city filed a motion to substitute the judge on Thursday, shifting it to Judge Gregory Todd. It’s a legal move in Montana that each party in a case can use once. The Gazette and KTVQ then asked to bump Todd from the case on Friday, citing concerns that his schedule would not allow for the Monday hearing.)

Sheehy had argued that filing pleadings with the officers’ names in the public record constituted a waiver, as Harris later ruled.

When pressed on the apparent slip-up, one of the officers’ attorneys initially said the information was incorrect, and that they had not put their clients’ names out in the open.

“Judge, I believe there’s some miscommunication,” said Layne Scheveck, insisting that “at no time” were his clients’ names out in the open, and that key documents in the case weren’t filed until Monday.

Layne Scheveck then consulted with co-counsel Vincent Salminen and said Salminen would explain their filing steps.

Salminen said they filed the motion for the temporary restraining order, supporting briefs and a motion to seal on Friday, as Harris had noted by the time stamp from the clerk’s office on the documents.

“Isn’t the toothpaste out of the tube at that point?” the judge said, noting that such court filings are public.

“Technically it could be, Judge,” Salminen said, “but (we) also filed the motion to seal. And isn’t it a Catch-22 that if you file a motion to seal it’s going to be open to the public for a limited amount of time?”

Harris said yes, and that was why attorneys in that situation use fictitious names like “John Doe” or “Unidentified Officer.”

“And so what we have is a situation where you’re asking the court basically to put the toothpaste back in the tube,” Harris said. “You understand the problem here?”

Salminen said he did, but asked whether it was also true that court clerks are “supposed to keep filings confidential.”

“No,” Harris said. “They’re public documents.”

'This pall hangs over the entire department'

Layne Scheveck said officers have a duty to uphold the law, protect the public and prevent crime, and that the sexual encounters in question did not constitute a violation of any of those duties.

“They were on the job. They were taking public funds,” the attorney said. “But the court has been very clear in (prior cases in Great Falls and Bozeman) that that’s not enough to just turn over, or shed their right to privacy, just because they are on the public dime. That’s not enough, judge. If that’s the case, it would open the door to everybody.”

Scheveck compared the current case to a case from 2013 involving the discipline of Billings city employees watching porn at work. In that case, the Montana Supreme Court granted The Billings Gazette’s requests for documents but denied its request for the employees’ names.

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Scheveck noted that during the officers’ sexual encounters, there were no shots fired or "actual” calls for service that the officers missed.

Jane Doe, the city employee who had sex with the officers, was on duty at the time of the encounters, Scheveck clarified after the judge asked.

Sheehy, the media outlets’ attorney, said the public has a right to inspect things like how the police department is operating, and why the officers in question were treated differently from Jane Doe, whose name was immediately released, or from a former officer who was fired after having sex on duty.

“We stand in the shoes of the public,” Sheehy said. Public safety mill levies and city funds spent on the police department make the public’s right to know important in cases like the current one, she said.

The judge said that one of the most concerning aspects of the case was the fact that the officers’ actions made them vulnerable to blackmail, especially the two officers he said were having extramarital sex. 

Harris said the officers' conduct calls into question their integrity, honesty and judgement, and reminded the public about the power police officers have.

“We give them the power to infringe upon our most basic liberties,” he said. “They can stop us. They can frisk us. They can cite us. They can arrest us. They can take us into custody. They can confiscate our property. They can order us to leave our homes, our cars. They can use force, including deadly force.”

Harris said officers entrusted with such power are held to a higher standard than civilian city employees. He said it was significant that the city’s position is that the officers’ names should be made public.

“Because what I’m sure the city is concerned about is this idea that right now, this pall hangs over the entire department,” he said, “when in fact, as we know, most of our police officers are wonderful. They do a great and heroic job all the time for us. But we’ve got three that simply have failed the standard.”

Scheveck said he did not condone his clients’ conduct, but that the sexual encounters at issue were private in nature.

“Well, but wait,” Harris said, “what was the expectation of privacy, when you have sex at City Hall? What’s that expectation of privacy? I want to hear more about that.”

There was laughter in the gallery in response. Roughly two dozen people, including journalists, attended the Monday hearing.

Scheveck responded that the officers were in the police department, a section of City Hall that members of the public cannot simply walk into without permission.

“You can’t walk right into the police department,” the attorney said. “Because it’s private in nature.”

“Lets not mince around, parse words,” the judge said. “Do you think for a minute that people in the city of Billings would not find it reprehensible for a police officer to have extramarital sex in City Hall?”

Scheveck said: “Judge, what they did was bad.”

“Right, reprehensible,” Harris said.

“Right. Yes, Judge.”

Harris then reiterated the legal issue that the officers were asserting a right to privacy for the sexual encounters.

“I’m having a hard time seeing that,” Harris said.

Other documents

Not heard Monday were arguments about the public documents media outlets have requested. The court did not receive the documents until Monday afternoon, after the hearing. Moses, the original judge in the case, ordered the city to file a set of redacted documents and a set of un-redacted documents at a hearing on April 27.

LeFeber, the city's attorney, said she was not sure why the court did not have the documents and that her office had sent them via FedEx on Thursday and had expected them to arrive Friday. 

Sheehy, representing The Billings Gazette and KTVQ, said the city had turned over the police department’s policy manual, which The Gazette had requested on April 19.

But other records requested along with the policy handbook had not yet been turned over, and the city plans to dispute the release of some of those documents.

LeFeber said that The Gazette was asking for documents that are protected from public view by confidential criminal justice laws.

“The point the city is trying to make is, (The Gazette is) asking for unprecedented information here in terms of these IA (internal affairs) files, internal investigation files,” the city’s attorney said. “And they are asking us to, basically what we view as, do the impossible.”

The media outlets have one day to respond. Sheehy said she had not yet seen even redacted copies of the documents, but that the public’s right to know does not have exceptions carved out for types of documents but rather for certain content, and that those exceptions merit only redaction and not withholding entire documents.

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