A knock, a struggle, a death
A superior court judge ruled this week that the reports and other documents related to the investigation into the death of a Harnett County man at the hands of a sheriff’s deputy are of “critical” public interest and must be disclosed without any restrictions on who can see it.
John Livingston was shot and killed by a Harnett County sheriff’s deputy on the deck of his home last November. Deputy Nicholas Kehagias had no warrant and no permission to enter when he and Livingston fought.
A News & Observer series, “Deadly Force,” this month revealed new details about the Livingtston case and at least a half-dozen other allegations of misconduct by Harnett County deputies. The U.S. Department of Justice now is investigating the sheriff’s office’s actions in at least some of those cases.
Superior Court Judge Mary Ann Tally issued a rare ruling that a written report of an investigation into a police shooting should be released. Such reports often are kept secret.
The State Bureau of Investigation spent months interviewing witnesses, deputies and analyzing the crime scene to determine if Kehagias acted within the law when he shot and killed Livingston. Its report prompted Harnett County District Attorney Vernon Stewart to ask a grand jury to indict Kehagias for second-degree murder; in April, the grand jury declined to charge Kehagias.
In an interview this spring, Kehagias said he shot Livingston because he feared for his life.
Attorneys for the family of Livingston petitioned Tally last week to use her authority to disclose the report under the state’s public records law. While superior court judges have the authority to release law enforcement investigative reports, they rarely are asked.
Tally called for full disclosure in the Livingston investigation.
“The piecemeal release of information to the public by state and local government actors concerning the factors and circumstances of John Livingston’s death is not in the public interest,” Tally wrote.
Robert Zaytoun, one of the Livingston family’s attorneys, said Tally’s ruling acknowledges the difficult environment in Harnett County following the death of Livingston. Residents have held protests; the state chapter of the NAACP called for a full federal investigation into the sheriff’s office.
“Judge Tally acknowledged this extraordinary environment in Harnett County, where the public has been in the dark about law enforcement behavior and conduct,” Zaytoun said. “It is time for public scrutiny.”
Link to tasing death
Tally was a defense lawyer for indigent people accused of crimes before being elected to the bench in Cumberland County. Her order highlighted how the sheriff’s office had kept secret the circumstances of the death of Brandon Bethea, who was fatally shot with a Taser in the Harnett County jail in 2011.
Tally pointed to how a surveillance video, made public last month by the N&O, did not match an incident report prepared by sheriff’s detectives at the time of Bethea’s death. She wrote that the circumstances of Bethea’s death “demonstrated dramatically” the importance of the full release of information in such cases.
Stewart, the district attorney, fought to keep some portions of the SBI investigation secret. Stewart asked lawyers from the state Attorney General’s office to argue on his behalf.
The protections Stewart sought and those the assistant attorney general asked Tally to grant were vastly different. Stewart wanted his personal notes and private medical records of those other than Livingston shielded.
Ryan Haigh, the deputy attorney general sent to help Stewart, asked Tally to shield the entire report and to block Livingston’s lawyers from sharing any of the details with others. He said he was particularly concerned about dissemination of the report to media.
Tally denied requests to shield this report from public view, as requested by Haigh. Lawyers for Livingston have no restrictions on how the information is used.
During the hearing, Haigh consulted with county attorney Monica Jackson, who will be coordinating Harnett County’s defense during civil litigation arising from Livingston’s death.
Until 2014, the SBI was under the authority of Attorney General Roy Cooper. Attorneys for his department have fought to shield the agency’s investigative reports from public view.
Even when civil litigation forced disclosure of the SBI’s reports, the agency sought and secured protective orders over the reports, shielding them from public disclosure.
Since the SBI has been moved to the Department of Public Safety, Cooper – the Democratic nominee for governor – now has no independent authority to seek protection of the agency’s reports.
Within 20 days
Only Stewart could appeal Tally’s ruling. It was unclear whether he will.
Tally ordered his office to produce its entire file related to the Livingston matter, including the SBI report, within 20 days.
Stewart sought the attorney general’s help earlier in the Livingston case. He asked Cooper’s special prosecutions team to handle the potential prosecution of Kehagias.
Stewart cited two conflicts, one of them being that one of his employees was related to another deputy present at Livingston’s home that night. Cooper’s office declined, saying it did not believe Stewart’s conflict was sufficient and that the unit had limited resources.
Stewart, a Harnett County native, struggled with the Livingston case. At the end of his evaluation, he believed Kehagias’ actions warranted consideration of criminal charges.
Livingston had told Kehagias he could not enter his home because he did not have a warrant. Kehagias said in an interview with The N&O that he had permission to enter when Livingston “assaulted a government officer,” striking Kehagias’ foot when Livingston closed the door.
The ensuing fight eventually spilled out onto the deck, where Livingston was shot. But investigators and lawyers will dissect the moment when Kehagias’ foot was in the threshold of Livingston’s home.
Was he an officer doing his job? Or was he an intruder Livingston had a right to defend against?
Zaytoun hopes the SBI’s report will put some of these questions to rest.
“We need accurate and truthful information,” he said.
Locke: 919-829-8927 or @MandyLockeNews