December 5, 2012
Public Records & Motorcycle Gangs

by Justice Paul E. Pfeifer

This case may sound like something out of a television show, but it’s quite real. It begins with the Iron Horsemen, a nationwide outlaw motorcycle gang that’s been based in Cincinnati for about 40 years that deals in drugs, weapons and prostitution.

In the 1980s, threats and tension between the Iron Horsemen and the Cincinnati police were prevalent. One gang member had rigged a 12-guage shotgun within his motorcycle handlebar to threaten police officers. Other members had threatened an officer and his family with weapons at a remote site where he was building a home.

Ultimately, the Iron Horsemen became less confrontational, but the Cincinnati police continued to monitor the gang’s activities.

Recently, a rival outlaw gang – the Detroit Highwaymen – has tried to establish an operations base in Cincinnati.  That inevitably resulted in conflict between the two gangs. There have been “takeovers” of bars in which members of one gang would enter, close the bar, detain everybody, and determine whether anyone was a rival gang member. They would then threaten and beat rival members who were there.

On September 18, 2010, an officer on his way to work observed motorcycles outside of JD’s Honky Tonk bar. He saw several Iron Horsemen and thought that a takeover was in progress. About 14 officers responded to his call, and a gunfight erupted.

Two officers were wounded, and one of the Iron Horsemen – the group’s national enforcer – was killed. One of the Iron Horsemen pleaded guilty to a weapons charge, but no other charges were filed.

Shortly afterward, Thomas Streicher, then Cincinnati police chief, received information that there was a good possibility that gang members would target police – particularly those officers involved in the shootout – and that the threat of retaliation for the death of the national enforcer could last indefinitely.

Based on his “historic knowledge,” Streicher knew it wasn’t unusual for outlaw motorcycle gangs to seek revenge when one of its members is killed by the police. Both wounded officers had returned fire, and both were concerned that if the Iron Horsemen discovered their identities, the gang would retaliate by attacking them or their families.

In September and October 2010, reporters for the Cincinnati Enquirer requested that the police department provide the newspaper with certain records related to the shootout, including the names of the two wounded officers, their personnel files, and an unredacted copy of the incident report of the shootout.

Streicher denied the requests insofar as the Enquirer sought names and identifying information of the officers.  Streicher told the newspaper that he had “been meeting with an attorney who represents the national president of the Iron Horsemen ... regarding this incident to try to ensure” that no other violence or retribution will occur. But Streicher acknowledged that it was impossible to guarantee that everyone would comply with this direction, so he was exercising all precautions to protect his officers and their families.

An attorney for the city indicated that the city would provide redacted copies of the records, but in December 2010, the Enquirer filed a complaint with the court of appeals for a writ to compel the police chief to make the records available for inspection and copying. The Enquirer admitted that it did not object to certain redactions, including the home addresses of the officers.

The court of appeals denied the writ. After that, the case came before us – the Ohio Supreme Court – for a final review.

Ohio’s Public Records Act requires public agencies to disclose records in most circumstances. It’s a well established principle that whenever we review cases concerning the Public Records Act, we construe the act liberally in favor of broad access and resolve any doubt in favor of disclosure of public records.

There are, however, exceptions to the Public Records Act. Chief Streicher claimed – and the court of appeals agreed – that the requested identifying information of the wounded police officers was excepted from disclosure based on the constitutional right of privacy.

In a case from 1998, a federal circuit court of appeals held that officers have a fundamental constitutional interest in preventing the release of private information when disclosure would create a substantial risk of serious bodily harm or death, “from a perceived likely threat,” so any such disclosure by the state should be measured under strict scrutiny.

The court of appeals in the Enquirer case cited the 1998 case in concluding that the requested information of the two wounded officers was exempted from disclosure by the constitutional right to privacy. The Enquirer argued that the court of appeals erred for several reasons, including that the requested records do not contain sensitive information, and Streicher failed to demonstrate that any real threat existed to the officers.

We disagreed. The evidence, including the portions sealed by the court of appeals, included credible evidence of a perceived likely threat that the Iron Horsemen would retaliate against the wounded officers for killing their enforcer.  This was supported by Streicher’s historical knowledge of the circumstances, past instances of threats made by the gang against the Cincinnati police, and the confidential information confirming the threat against the officers.

There was also no evidence to support the Enquirer’s contention that “by redacting the officers’ names, Chief Streicher has blocked any meaningful review” of information relating to discipline and citizen complaints of the wounded officers. Rather, as the court of appeals noted, all other information was disclosed; only the officers’ names had been redacted.

The evidence established that the release of the wounded police officers’ names would place them at risk of serious bodily harm and possibly even death from a perceived likely threat and that the disclosure of their identities was not narrowly tailored to achieve the public purpose of examining the performance of the police.

We therefore concluded that the requested information of the wounded police officers was exempted from disclosure under the Public Records Act by the constitutional right to privacy, and – by a seven-to-zero vote – we affirmed the judgment of the court of appeals to deny the Enquirer’s request.

EDITOR'S NOTE: The case referred to is State ex rel. Cincinnati Enquirer v. Craig, 132 Ohio St.3d 68, 2012-Ohio-1999. Case No. 2011-1798. Decided May 10, 2012. Majority Per Curiam.