The Brawl, the Videotape, and the Assistant Attorney General

At about 1:30 a.m. on April 24, 2016, according to their incident report, Patrolwoman Jenny Wade and Patrolman Andre Francis were on an assigned detail at the Mile and a Quarter restaurant located at 334 South Water Street. The Providence Board of Licenses had recently fined the establishment for a violent incident that took place on November 29, 2015, and the City Solicitor was still prosecuting another case of a fight among 15 individuals that erupted at about 2:30 a.m. on February 20, 2016 in a stairwell connecting the restaurant downstairs with the Loft upstairs. The venue at 334 South Water Street was operated by Andrew Mitrelis, who had been ordered by the U.S. Department of Labor in July 2015 to pay over $135,000 in lost wages to 17 servers and kitchen employees at Mile and a Quarter and three other restaurants that he owned and operated, including Cafe Paragon, Andreas Restaurant, and Better Burger Co.

But back to the early morning hours of April 24, 2016. Officers Wade and Francis noted “a large group of subjects to be fighting on the second level,” where the Loft was located. Bottles and glass cups were being thrown around the room. Wade called for backup. Some of the people who left the Loft began fighting in the middle of the street, while the original disturbance continued upstairs. “Once police felt safe to enter the second level with more units present, police observed blood all over the steps, more broken glass, a broken window, and a large amount of human hair on the ground.” After more than two dozen officers had arrived at the scene, police were eventually able to gain control and disperse the crowds that continued fighting outside.

Wade and Francis, as it turned out, had come upon one of the longest continuous indoor brawls in the recent history of nightlife in Providence, Rhode Island. The 12-minute videotape of that brawl, whose public disclosure is essential to our understanding of the workings of our state and local governments, has been withheld by an Assistant Attorney General who has never viewed it and who 14 years ago clearly staked out his position that our public records law had “gone awry.”

“You see her kick him?”

Later during Sunday, April 24, the Board of Licenses held an emergency hearing to close down Mile and a Quarter temporarily for 72 hours. When the Board again took up the matter on April 27, Patrolman Francis testified how he elected not to enter the Loft upstairs with a firearm until he received backup. “We were outnumbered, vastly,” he testified. With the arrival of Sargeant Scanlon and Patrolman Gonzalez, officers Wade, Gonzalez and Francis tried once again to address the violence upstairs, but had return to deal with more fights outside. As Patrolman Wade testified on April 28, “There’s people at every end of the parking lots across the street. There’s people starting to fight in one corner. You stop a fight and then another fight breaks out, and at one point there was a fight right in the middle of the street blocking traffic…”

The Board did not really find out what happened inside the Loft until Detective Derek Shields took the witness stand on April 28. In the presence of the commissioners of the Board of Licenses, the Board’s attorney, the Assistant City Solicitor, the proprietor’s attorney and his granddaughter, as well other members of the public in attendance, Shields played a 12-minute video of the interior of the Loft on the night in question. Starting and stopping the playback from his computer to show the action from different camera angles, Shields gave the attendees an annotated tour of the events memorialized on the blue-tinged, somewhat darkened video recording. Here are some excerpts of Shields’ explanatory comments.

In another five seconds, you’re going to start seeing shoving around here, and it’s just going to continue. …  See right there, you see the group, starting to go at it, pushing and shoving … See these two grabbing each other … It’s kind of like a wave. It starts going this way. Some of it starts coming back. … You’re gonna see that crowd that we saw earlier from the dance floor. It’s gonna start coming this way. It’s going to continue over here and eventually end up at the other side of the bar. … In a moment, you’re going to see the wave of people come this way. … You’ll see a fight … and one will fall to the ground. … You see someone jump up on the bar … You see this tall male. … People push him back. He’ll end up falling on the ground along with another subject. They fall right now. … This is another subject on the floor also. … In another minute, you’re gonna see a group of females starting to fight in this area right here. … You see the girls fighting right here. … Throwing punches. … There’s girls on the floor still fighting to each other’s heads. … Right over here is where we just watched, where we witnessed the subjects continue to fight in this area over there. … This female and this female here, they’ll start to rush over in a minute. They see something happening. They’ll rush over. …

When you see the girl fall on the ground – you’ll see a girl fall on the ground – you’ll see a male subject kick her or stomp on her as he escalates the fight. And then he squares up with one of these bouncers. By square up, I mean it looks like he’s about to punch him. You see him fall on the ground. You see her kick him? And now he looks like he wants to fight this girl and then he starts, and continues to throw some punches. … And then you see subjects here wrestling. It looks like there’s a subject going down … and he’s throwing punches. …

I think this guy is throwing some kicks. You can see him better when comes back over here. He kicked her in the knee. She’s on the ground. Some people falling backwards over there also. You can see the person – two people on the ground, fighting. See this guy come up, throw a knee or a kick right there? … throwing punches right there … There’s a couple of people on the ground now. That guy just threw a punch right here. … Wrestling on the ground. … Here comes that same subject with the crew on his shirt. … You see the same subject getting up, fighting. And then you see the dreadlocks on the ground. …

Shortly you’ll see that girl scuffle break out over here. … Right about now, right here. … Looks like he’s throwing punches. … The girl on the ground and more punches thrown. … Another female on the ground. She’ll fall down. … She has the shoe in her hand, and she’s trying to hit the person with her shoe. … And there goes that security female. She gets knocked down. … This girl’s on the ground for a while. …

No one seems to keep records on the duration of melees inside or outside of nightlife venues in Providence. Wayne Fantasia, a witness called by Mile and a Quarter who had worked 14 years in the security business, acknowledged that “twelve minutes is a long time.”

Complaint to the Attorney General

On April 30, 2016, I made a public records request to the City of Providence for a copy of the 12-minute video that Detective Shields had played at the Board’s public meeting two days earlier. On May 16, the City’s Public Records Unit responded that it was withholding the video on the grounds that its release “could reasonably be expected to interfere with investigations of criminal activity or with enforcement proceedings and … could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

In the face of the City’s refusal to release the video, I filed a complaint with the Rhode Island Attorney General on May 30, 2016. The state’s public records law required its Attorney General to “investigate” my complaint and, if he determined that my allegations had merit, to file a lawsuit against the City seeking the withheld document on my behalf. On August 16, the Special Assistant Attorney General sent a letter to the City seeking its response to my complaint. The letter asked the City to “provide all documents, if any, which were withheld from disclosure for an in camera review.” On September 29, Assistant City Solicitor David Ellison submitted a response on the City’s behalf. Ellison’s sworn affidavit stated that the video showed some patrons who were “not partaking in the fight,” and that the City “does not have the ability to redact or blur the faces of the individuals in the video, in order to protect their privacy.” Ellison did not submit the withheld video clip to the Attorney General. Noting that the entire video of  security footage was 7 gigabytes in size, Ellison stated, “The City of Providence does not have the ability to edit this video to only the portion shown to the Board.”

Field’s Opinion Letter

Eleven months after I filed my complaint, I received a response.  In an April 18, 2017 opinion letter, the Department of the Attorney General ruled that the City of Providence did not violate the public records law when it refused to release the videotape.

The opinion letter was signed by Assistant Attorney General Michael W. Field, who joined the Department of the Attorney General in 1999 as a Special Assistant Attorney General assigned to investigate and enforce Rhode Island’s Access to Public Records Act. He was  later appointed as Chief of the Open Government Unit in 2008 by Attorney General Patrick C. Lynch and reappointed in 2011 by Attorney General Peter F. Kilmartin. In 2003, Field published an article in the Roger Williams University Law Review entitled “Rhode Island’s Access to Public Records Act: An Application Gone Awry.” The article’s principal thrust was that “great care must be exercised so that records unrelated to government activity not be disclosed in the name of public information.” Field’s article contained the usual disclaimer that his opinions “should in no way be imputed to the Department of the Attorney General.” In retrospect, it’s hard to imagine a more ironic statement coming from someone who, for the last 18 years, has been the Attorney General’s principal enforcer of the state’s public records law.

In his April 18, 2017 opinion letter, Field makes three points. First, while the public records law states that “any documents submitted at a public meeting of a public body shall be deemed public,” the legislature really didn’t mean any documents. It just meant to refer to any “preliminary drafts, notes, impressions, memoranda, working papers and work products” that were submitted at a public meeting. Second, while the public records law requires a balancing of the “public’s right to access to public records and the individual’s right to dignity and privacy,” I made no explicit showing that release of the requested videotape would actually be in the public interest. Third, the City of Providence had to withhold the entire videotape because it did not have the technical ability to blur the faces of individuals in the video to protect their privacy. Nor did the City have the technical ability to edit the video to the portion shown to the Board.

The Public Document That Is No Longer a Public Document

The Loft videotape was shown at a public meeting of the Board of Licenses. Any member of the public in attendance could have pulled out his smart phone and recorded the video while it was playing. Documents submitted at public meetings certainly may contain sensitive personal information. Police reports submitted at public meetings of the Board of Licenses often contain addresses and birth dates of suspects, or medical details about victims, or information from calls to 911. It has been the practice of the City Solicitor at public meetings of the Board to redact any such sensitive information before it is shown in public. In the case of the Loft video, the Solicitor chose not to do so.

Still, the Assistant Attorney General sides with the City of Providence, which decided to take back a videotape that it had already made public. His argument is that the relevant phrase — namely, “provided, however, any documents submitted at a public meeting of a public body shall be deemed public.” — appeared in same subsection of the law as an exemption for preliminary drafts, notes and the like. (R.I.G.L. § 38-2-2(4)(K)) But the law doesn’t refer to “any such documents” or “any such drafts, notes or memoranda.” This twisted interpretation of the plain meaning of the statute is based solely on prior opinions of the Attorney General and has never been tested in court. If there is any ambiguity as to whether the phrase “any documents” applied narrowly or broadly, then we need to look to the purpose of the public records law, that is, to shine a light on the operation of our government.

The Public Interest

The public records law states that a public entity cannot require that the person seeking the document “provide a reason for the request.” (R.I.G.L. § 38-2-3(j)) Nonetheless, Assistant Attorney General Field declares, “You assert no public interest.” He relies on a ruling last year by the R.I. Supreme Court that, when it comes to requests for law enforcement records, the requester must show how the public interest in disclosure outweighs the potential privacy concerns. But the state Supreme Court was concerned whether there was a genuine public interest in knowing the details of a police investigation into a 2012 party hosted by the son of Governor Chafee. Establishments that serve alcoholic beverages and provide late-night entertainment regularly have video recording equipment and, in fact, video recordings are a requirement for a nightclub license. When a patron enters such an establishment, there is a reasonable expectation that his conduct will be recorded. The same applied to the Loft where, as the police officer on duty during the February 20, 2016 incident testified, patrons were patted down for weapons upon entry.

Does anyone have any doubt why it would be in the public interest to disclose the videotape of a brawl that continued unabated for 12 minutes in a licensed establishment in the heart of the City of Providence? Does anyone have any doubt why it would be in the public interest to understand the evidence that the Board Licenses relied upon when it decided what sanctions to impose on Mile and a Quarter?

When the R.I. Department of Business Regulation decided on appeal to reduce the sanctions imposed by the Board, Hearing Officer Catherine R. Warren described the video as “continuous pushing and shoving inside for about ten (10) minutes with some people falling. One patron kicked someone on the ground is still inside five (5) minutes later. A window was broken by the crowd pushing each other.” Warren noted, “It is undisputed that there was a long — at least ten (10) minutes — fight inside the premises with patrons shoving and pushing and in some cases kicking other patrons.” Does anyone doubt why it would be in the public interest to understand what really happened, rather than rely upon such a sanitized version of the 12-minute brawl inside the Loft on April 24, 2016?

Doesn’t Assistant Attorney General Field have even a remote clue how the public airing of the tape might have prevented a series of shooting incidents at the same establishment a few months later? Doesn’t he understand how full disclosure would allow the public to appreciate the degree to which such violence ties up the City’s scarce public safety resources?

Providence, the Innovation Capital?

For a city that prides itself on its advances in computer coding, whose administration has two separate directors for Information Technology and Innovation, the assertion that the Law Department could not edit the videotape is, at minimum, disingenuous. When it comes to blurring faces, just do a Google search on how to blur faces in video. And when it comes to the Law Department’s assertion that the City did not “have the ability to edit this video to only the portion shown to the Board,” try Googling how to trim video. During the April 28, 2016 airing of the videotape, Detective Shields was able to advance the video to “switch camera angles.” How did he do it? Assistant Solicitor Mario Martone referred to his “video guy” and “our video analyst at the Police Department,” who was “putting the differential in” to correct the time stamp on the video. The video analyst’s technical capabilities were apparently restricted to what the City Solicitor wanted him to do.

One Less Safety Valve

Cut through all the legalese.  Does anyone really doubt why the Law Department and the Mayor of the City of Providence did not want this video to become public? Does anyone really think that the Solicitor and the Mayor wanted to provide us with an accurate, balanced portrayal of our city’s nightlife?

On May 11, 2016, the Board of Licenses voted not to shut down the Loft and Mile and a Quarter. Instead, it suspended the establishment’s licenses for two additional days beyond the three days it was closed on an emergency basis right after the April 24, 2016 incident. In addition to fines and mandatory police details, the establishment was to close at midnight for 30 days. On August 4, 2016, the Department of Business Regulation upheld the two-day closure, but reduced the fines and cut the required midnight closing to 16 days.

We’re supposed to be protected by a series of safety valves, so that if one of our governmental institutions fails us, the other will take corrective action. The Providence Board of Licenses, adhering to its rule of having no rules, decided not to shut down the establishment at 334 South Water Street after incidents of violence in November 2015 and February 2016, followed by the brawl in April 2016. The Rhode Island Department of Business Regulation followed its general practice of reducing whatever sanctions the Board chose to impose. The Providence City Solicitor would not release the 12-minute video of the brawl, even though there is no public evidence one year later of any ongoing criminal investigation or law enforcement activity. And now an Assistant Attorney General, who thinks that the public records law has been misused to extract information unrelated to governmental activity, has failed us as well.

Assistant Attorney General Field concluded his opinion letter: “We thank you for your interest in keeping government open and accountable to the public.”

The is the first of a two-part series on The Loft in Providence, Rhode Island. Coming next: The February 2017 shooting incidents.