Thrust and Parry

When a Tempe cop was accused of a brutal sexual assault on an ASU student, the City of Tempe responded with an assault on the state's public-records law

The story is the kind no one wants to believe, but everyone hears about.
In June, an ASU student accused a Tempe police officer of the worst kind of betrayal of his badge, the worst kind of violation of another person.

Alvin Yellowhair says Officer John Ferrin dragged him out of a police transport van, clubbed him on the head, sprayed him with mace and then shoved a nightstick up his anus in an attack reminiscent of the much-publicized 1997 incident where a New York police officer sodomized a Haitian immigrant with the handle of a toilet plunger.

The aftermath has engulfed more than just the two men. Yellowhair filed a $10 million claim against Ferrin and the Tempe PD. The Maricopa County Attorney, after an investigation by the Glendale Police Department, declined to press charges against Ferrin, who remains on duty.

Ferrin and the city deny Yellowhair's accusations, and the battle over the charges looks to be long and bitter.

It's just the latest bit of bad press for Tempe, which has enjoyed a reputation as a progressive oasis in the middle of the conservative desert. Recently, a Tempe jailer was accused of punching a prisoner in the face by another jailer who witnessed the incident. The charges brought a good deal of ink and airtime to Tempe--none of it flattering.

Now, Tempe is striking back at the press. In a highly unusual move, the City of Tempe sued the Mesa Tribune and KPNX-TV rather than give them Ferrin's personnel file as required by the state's public-records law.

City leaders say they plan to go even further and change city policy to keep information on disciplinary action against employees secret. Yet Tempe officials concede they know of no specific harm that has come--or would come--from the public being privy to disciplinary records.

Instead, the City of Tempe maintains that the public has no right to intrude in the privacy of employees like Ferrin--even when those city employees are accused of intrusions against the public.

What happened--or didn't happen--in the minutes when the men were alone together in the early morning hours can't be resolved by the physical evidence alone: Yellowhair has medical evidence of a wound, but, according to two doctors, there's less damage than they'd expect to see from what Yellowhair has described.

Ferrin's nightstick has been tested, and has no traces of blood or fecal material, but the tests were conducted almost five months after the incident allegedly occurred.

Even polygraph results are no help: Both men passed the tests, according to the Glendale report, even though their stories are diametrically opposed.

Through their attorneys, Yellowhair and Ferrin both declined to be interviewed for this article. However, both have given their accounts of the incident, which were made available as part of the investigation done by the Glendale Police Department. The Glendale PD handled the inquiry to avoid a conflict of interest, and prepared a 452-page report that was released to New Times.

It began with a late-night party at Yellowhair's apartment in Tempe on March 1.

Yellowhair, an Arizona State University biochemistry student, had had a few too many. Make that way too many. His blood-alcohol level was .26--more than twice the legal limit--when police tested it after his arrest.

According to police reports, Yellowhair punched a girl in the face during an argument over Yellowhair's flirting with her friend. Another fight ensued when a man at the party tried to stop him from hitting the girl. When the girls started to drive away, Yellowhair jumped into the back of their truck, and broke out the rear window, police reports say.

The Tempe police arrived around 6 a.m., just in time to see him in the back of the truck.

But Yellowhair, according to his claim filed with the city, was the one who had called the cops in the first place, apparently because he wanted the partyers to leave.

The police took Yellowhair into custody. They say they had to mace him, cuff his hands and hobble his feet before they could bring him in. Yellowhair's kicking and screaming woke neighbors, and the officers added disturbing the peace to the charges of endangerment and disorderly conduct he'd already racked up.

Yellowhair, in his statements to the Glendale investigators, disputes that he was violent toward the officers. He says police maced him after he got out of the back of the truck.

The cops called for a police transport van to take Yellowhair to the hospital to stitch up a cut above his eye, which the police say he sustained in his scuffle at the party.

Ferrin, an officer for 13 years with the Tempe PD, wasn't even supposed to be driving the transport van that night. He was just coming on shift when he was asked to drive the van out to the scene. The regular driver wouldn't be on duty for another hour, so Ferrin took the keys.

Yellowhair tells this story in his claim and statements to investigators:
In the back of the van, Yellowhair began moaning loudly. He heard the van leave the road--it began "crunching over dirt," he later said--and stop in an isolated area. Yellowhair thinks it was near the Rio Salado, under the Mill bridge.

Yellowhair was on his stomach, still bound hand and foot, when Ferrin stepped into the back of the van.

He says Ferrin began beating him with his nightstick. Yellowhair says he screamed, and in response, Ferrin maced him.

Ferrin pulled him out of the van then, and threw him to the ground. Yellowhair started yelling for help. He believes while he was outside the van, Ferrin tried to get him to drink something, which he spit out.

Yellowhair says Ferrin used the nightstick to choke him. Then, he says, the choking stopped and he felt a tugging at his waist as his pants were pulled down.

Yellowhair says he felt a sudden, sharp pain as something--he believes it was the nightstick--was shoved into his anal cavity. He began screaming, "Stop, please pull it out, please."

After a short time--Yellowhair cannot recall how long--the stick was removed, and then shoved back in again.

Yellowhair says he may have passed out, because the next thing he remembered was arriving at the hospital. He says that as he was being removed from the van, someone whispered into his ear, "Shut up."

At the hospital, Yellowhair says he began screaming, "That's the guy," when he saw Ferrin. "Then I was trying to get people's attention. . . . I was saying he's the one, he's the one, but no one believed me, no one listened to me."

near his eye was stitched up, Yellowhair was sent to jail, where he was bailed out at noon by his dad. He didn't say anything about the assault, he says, because he was still disoriented and still "trying to piece things together."

But the next day, when he began bleeding from his rectum, he went to the hospital. Yellowhair went to Tempe St. Luke's, where he'd been treated before for his cut. But he saw police officers there and left. He went to Scottsdale Healthcare Osborn Hospital where he was diagnosed with an anal fissure--a tear in his anal tissue about 1 centimeter to 1.5 centimeters long, according to his hospital charts. (However, the doctor noted that constipation can cause anal fissures.)

Ferrin's account, given as a part of a polygraph test provided to the Glendale police, differs greatly: He says he had an uneventful, short drive to the hospital, with no stops.

At the hospital, Yellowhair was belligerent and violent, Ferrin and police reports say, requiring several people to hold him down while his head wound was sewn up.

Ferrin had no explanation for how Yellowhair received the anal fissure. "It could have been bad sex the night before, before the cops showed up, who knows?" he said.

Ferrin insists he never beat Yellowhair, never maced him, never sodomized him with his nightstick.

"Every word that's come out of his mouth is a lie," Ferrin told the polygraph operator.

Tempe police sent officers to interview Yellowhair at Scottsdale Healthcare. But Ferrin says he didn't know there were charges against him until six weeks later.

The criminal case against Yellowhair has been resolved through a plea bargain. He pleaded guilty to assault, according to his attorney, Christopher Hildebrand.

Hildebrand says he is still investigating the incident, and won't comment on when he and his client will file a lawsuit.

But that's not the only scrutiny Ferrin has faced. Since June, when the story of the incident broke in the Mesa Tribune, the paper has been trying to get a copy of Ferrin's personnel file. And that attempt brought the City of Tempe out in force.

When the City of Tempe told Doug Bennett he couldn't see Ferrin's files, he wasn't surprised. It wasn't the first time Tempe had turned down a public-records request from the Tribune reporter.

Bennett had covered other allegations against city employees. One story involved accusations of violence by a Tempe jail guard. In another, a city employee allegedly viewed pornography on his city-owned computer while on duty. Bennett asked for the employees' personnel records and was turned down both times.

"I don't know why Tempe's so secretive about this stuff," Bennett says. "In places where I've worked, you ask for the personnel file, and they throw it open in 10 minutes."

Arizona state law requires public agencies--broadly defined as an entity that receives public money--to hand over its records unless a record is specifically exempted under the law. Any citizen is supposed to be able to walk into any government agency and look over its correspondence, ledgers or other records, no questions asked.

But in practice, agencies often refuse to turn over records. And the public-records statute is difficult to enforce. If an agency simply says, "No," the person making the request has no option other than to take the agency to court.

What made Tempe's refusal even more frustrating was the fact that the Phoenix and Mesa police departments routinely release the kind of details the Trib wanted.

Sergeant Mike Torres, public information officer for the Phoenix Police Department, can empathize with not wanting to give embarrassing information to the media. But he gives it out anyway, because that's what the law requires.

"There's times I wish we didn't have to release [disciplinary records], but we believe under state law that they're public documents," he says. "The public has a right to know that supervisors are taking care of business."

Tempe has released disciplinary information about police officers in the past. But in this case, city officials declined.

Since this was the third go-round with Tempe in less than a year, Bennett and his editor, Jim Ripley, decided to get some expert help. They retained Dan Barr, a Phoenix lawyer considered one of the state's leading attorneys on media and public information issues. KPNX-TV, which also had been turned down by the city, joined them.

"This was just the last straw," Ripley, the Trib's managing editor, says.
Tempe officials at first said the paper couldn't have the records at all because they'd been handed over to Glendale as part of the criminal investigation of Ferrin. That meant the paper couldn't see anything--not even Ferrin's salary.

Tempe's city attorney, Brad Woodford, also said releasing the records would violate the employee's right to privacy. It could affect Tempe's "ability to effectively and efficiently manage its employees," Woodford wrote.

Woodford tells New Times that the city depends on its employees to honestly evaluate their subordinates, and there are things managers won't say if they know other people will find out. The city attorney likens it to "being honest with your spouse--you're honest with them, but there's certainly things you wouldn't want out in public."

Besides, Woodford says, "It's impractical for the public to know what city employees are doing every minute of every day."

Woodford offered to allow the Tribune to see some basic information about Ferrin--including his hire date, salary and position.

Barr didn't buy it. He calls Woodford's rationale the "trains-running-on-time argument."

"When we're talking about a cop who's accused of police brutality, I don't think it's too much to ask what's in his personnel record," Barr says.

Up to this point, the back-and-forth was no different from the fencing almost any media organization goes through when trying to get sensitive public records.

Then the city sued.
Tempe asked the court to declare that the personnel files including "performance evaluations [and] disciplinary reports . . . are not 'public records' and are subject to the individual's constitutional right of privacy."

Even Barr says he was surprised by Tempe's action. "We're trying to work this out, and they turn around and sue us," he says.

Lawsuits that attempt to bar media outlets from getting public documents are extremely rare. In part, that's because it's almost always counterproductive to go out and sue the media if you want to keep something quiet, says Ben Bagdikian, a veteran journalist and author.

Fighting public-records requests in court draws more attention to the records, not less. And in most cases, the courts side with the press and the public, so the government agency ends up having to give up the documents anyway.

"The smart units of government release it right away, before they raise the question that they might be covering something up," Bagdikian says.

But if the lawsuit succeeds, there's a big payoff.
"That tells every other jurisdiction, if you have a public record, and the media wants to see it, all you have to do is send your attorney into court, and it's as if there's no public record," Bagdikian says.

Marlene Maerowitz, assistant city attorney for Tempe, says the city was just looking for guidance on the issue from a judge. The Trib was probably going to sue anyway, so Tempe got there first.

"I thought we did a good thing by saying we've reached a stalemate here," she says.

Barr filed a counterclaim against the city, asking the court to compel Tempe to turn over the records. Phoenix Newspapers Inc., parent company of the Arizona Republic, also joined in the action to request Ferrin's records and the files of two other Tempe employees involved in the case of the Tempe jail assault.

By the time Superior Court Judge Linda K. Scott heard the public-records case on August 27, it was down to one basic question: Was there any good reason for Tempe to keep the documents secret?

There is no exemption for city personnel files in the state's public-records law. To keep private records made on public time or with public resources, an agency has to prove that there's a chance of "specific, material harm," according to the law.

The city argued that Tempe's efficiency was a good enough reason to keep the records out of the public's hands.

Maerowitz told the judge that the records must remain private in order to have an "open, deliberative process" between the city's managers and their subordinates.

Barr told Scott that objection still doesn't meet the test.
"We have yet to hear any specifics of how the city will be harmed by releasing these documents," Barr replied. "Instead, we hear about this parade of horribles . . . the public and the media coming into their offices to request these records."

Judge Scott agreed. She ordered the city to turn over the documents on Ferrin.

"In a case where a legitimate issue is before the public, I think that's where the public's right to know outweighs [the employees' privacy]," Scott said.

However, Scott ruled against PNI on the records of the Tempe guard who witnessed the other jailer hit the prisoner. And she said the city did have a legitimate right to protect its employees' privacy.

She also ruled against Barr's request for attorney's fees, saying Tempe hadn't done anything "arbitrary or capricious."

"I don't fault the city for going to court first," Scott said. "They didn't stonewall."

Tempe sees the judge's decision as a victory, despite having to turn over the records.

"The judge reaffirmed that personnel records are sometimes private," Maerowitz says. "We lost this one little battle, but I think overall, we won the war."

Barr scoffs at that. "That's like the Whitehall Cruise Lines saying, 'We're glad the Titanic sank, we don't have to deal with the expense anymore.'"

Trib Managing Editor Jim Ripley says that when he brought up the lawsuit with Tempe Mayor Neil Giuliano, the mayor "basically shrugged his shoulders and said it's up to the law department."

The mayor and the city council are still just shrugging off the suit, even after the decision.

Giuliano says the city is pleased with the judge's ruling even though he believes it will cause problems for the city.

However, like the city's attorneys, Giuliano is hard-pressed to come up with a specific instance where Tempe's government will suffer if forced to release personnel records.

"Gosh, I don't know," he finally says. "I can't think of anything."
Despite that, the mayor and the city attorney now say that the city won't put employee evaluations down in writing anymore.

"We'll probably change the way we do employee evaluations," Woodford says. "We certainly can't do this out in public."

"There's going to be change in the way city business is conducted," Giuliano says.

The mayor cites Tempe's e-mail as an example of a way Tempe already tries to avoid public disclosure. The media pick up copies of the council's e-mail every week, so the council doesn't use it for any sensitive information.

"Obviously, if I'm working on something I don't want people to know about or worry about, I'm not going to put it in there," Giuliano says.

Tempe's attorneys now say they'll only release personnel records in the same circumstances as this case--that is, when an employee is accused of a crime and there is a great deal of public interest because of coverage in the media.

Using that narrow a set of criteria may land the city back in court, Barr warns.

"If they really believe that, then they don't understand how the legal system works," he says. "This was a specific case, with specific facts and a specific outcome. If they want broad-based rules, they go to the Legislature."

Still, Giuliano doesn't think many Tempe citizens will care if some city information stays secret. "There are certainly things that I don't know about the federal government," he says, by way of analogy. "There are protections that have to go both ways on this. I don't think the City of Tempe's action overwhelmingly makes the public uncomfortable. I haven't had a single phone call on this."

Other members of the city council aren't concerned, either. Councilman Dennis Cahill didn't know the city had sued the Trib and KPNX. Councilman Hugh Hallman was recently elected on a platform that included more openness in city government, but says he isn't distressed by the city's actions in this case.

"People say a lot of things," he says about the mayor and city attorney's warning that the city will keep more information off the record. "There may be a general policy to be more careful about what goes into employees' personnel files, but I don't see a huge chilling effect [from that]."

While city officials are blase about the suit and its implications, the Tribune's Ripley finds Tempe's reasoning "frightening."

"First of all," he says, "it's not about the newspaper. It's about the public's right to know. . . . For any system of democratic government to work, the public has to be able to find out about individual instances of wrongdoing and what was done in those instances. . . .

"Frankly, Tempe's position is unconscionable; they're saying, 'We have a right to secrecy when it comes to any potential wrongdoing by our employees.'"

Tempe's lawsuit is "symptomatic of the view of many officials that obeying the public-records law is not part of their job," says Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press, a Virginia-based media-rights group. "I don't know how you get around it except for attorney generals and legislators saying, 'Yes, it is so part of your job."

"In a lot of cases, they develop an 'us and them' mentality," Kirtley says. "They think, 'The public won't understand it, the press won't explain it well enough, it will make us look bad, it will be embarrassing,' and so they don't release the information. It's very rare to find a longtime public official who thinks differently."

Ferrin's records turned out to contain nothing worth fighting over.
There is no indication of any serious problems, no past incidents of brutality.

Ferrin's only black marks have come from lying to a superior officer about a court date he missed while on vacation. He also allowed a prisoner to escape. And, on several occasions, he was rude to people he'd stopped for traffic violations.

Alvin Yellowhair has moved out of Tempe. He says he can't even drive through the city without feeling panicky.

Officer Ferrin, according to his attorney, is still "very angry" over Yellowhair's charges. "How would you feel?" his lawyer, Craig Mehrens, says. "You try to be a good officer, you do your duty, and then somebody makes these accusations."

Ferrin remains on duty.
Both men are looking at a long legal fight. Their lives, conceivably, will never be the same, yet Ferrin's employer is acting like nothing has changed.

Doug Bennett, the Trib's reporter, has already heard the unofficial reaction to the verdict.

He says a Tempe police officer recently told him, "I hope you don't think this means you guys can go on fishing expeditions now."

Bennett's response: "I'll be right over with my pole."

Contact Chris Farnsworth at his online address: cfarnsworth@newtimes.com

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