31 August 2023
The American Civil Liberties Union of Nevada and the Clark County School District (CCSD) returned to court Thursday over the nonprofit’s request for public records related to a February incident in which a school police officer used force against a Durango High School student.
A video of the Feb. 9 incident showed a Clark County school police officer, who has since been identified as Lt. Jason Elfberg, pushing a Black student to the ground and placing his knee on the student’s back to hold him down.
The ACLU of Nevada is representing two teenagers who were involved in the incident. The organization filed a public records request to obtain files related to the incident such as body camera footage and investigative reports, but representatives from the organization said they have been stonewalled by CCSD.
In April, the organization filed a writ of mandamus to try to persuade the court to compel the district to release the records. The school district has previously said the request is “overly burdensome.” The ACLU of Nevada has said it may pursue a civil suit against CCSD over the matter.
On Thursday, the district’s legal counsel, Jackie Nichols with the Las Vegas-based Marquis Aurbach law firm, argued that some of the files that the ACLU of Nevada is demanding be handed over, such as documents related to an internal investigation against Elfberg following the incident, shouldn’t have been part of the records request.
“They’re identified entirely separately,” she said. “Just because the officer’s conduct occurred on Feb. 9, does not put it in the Feb. 9 file. They’re not describing the incident. They’re talking about the conduct of the officer.”
In addition, Nichols argued that the report should be kept confidential because Elfberg wasn’t disciplined, reprimanded or sanctioned over the incident. As such, Nichols argued the report on the investigation is entirely confidential and said state law precludes even Elfberg himself from being able to review it because no punitive action was taken or recommended in the case.
“So that means absent punitive action, there was no entitlement to review the report,” she said.
District Court Judge Danielle “Pieper” Chio asked Nichols if it’s possible for the school district to get around a public record request by intentionally not taking punitive actions against an offending officer, or not labeling a punishment against an officer as a punitive action.
Nichols said she thinks the district has an interest in ensuring that its employees follow its policies and procedures, and she can’t imagine any kind of action against an officer, such as transferring that person to a new position, not being seen as a punitive action under state statute. In a post on X (formerly known as Twitter), ACLU of Nevada Executive Director Athar Haseebullah called the lack of discipline or reprimand of Elfberg “disgraceful.”
Nichols also raised concerns about Elfberg potentially facing harassment and stigmatization from his colleagues and the public, including potential future employers, if the records are released. If the court rules in the ACLU of Nevada’s favor, Nichols argued it could “snowball” into officers making public records requests to see internal investigations conducted against their colleagues.
The ACLU of Nevada’s attorney, Christopher Peterson, argued that Nichols’ argument that harm could come to Elfberg based on the release of the records is too broad and based on hypothetical scenarios.
During a press conference after the hearing, Haseebullah questioned “how damning” the records that the school district has related to the incident could be if the district feared such serious repercussions against the officer.
“What would cause that level of harassment that the district is citing for that officer?” he asked. We don’t know. Nobody knows besides them, but they seem to have a very vested interest in not allowing the release of that information.”
There is an evidentiary hearing scheduled Friday morning related to the district’s process for pulling emails to comply with records requests.