Wagner Subaru
Apr
16
2021
Police

Local officer cleared of charges

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During last week’s trial in the Greene County Court of Common Pleas, a Springfield prosecutor asked a jury to find Yellow Springs Police Sergeant Naomi Penrod guilty of two criminal charges — assault and interfering with civil rights — following a November 5 incident in which Penrod forcibly took a camera away from a villager attempting to videotape an encounter with police. In the end, Penrod was found not guilty of both misdemeanor charges. Judge Teresa Liston of Columbus then pronounced Penrod not guilty of a third charge, disorderly conduct.

The three-day trial was an unusually long one for the court and its issues were complicated, according to Attorney Marc Ross, the Springfield City Prosecutor who brought the charges against Penrod after the Clark County Sheriff’s Department conducted an independent investigation of the incident. The investigation came at the request of the Yellow Springs Police Department after villager Athena Fannin filed charges of assault against Penrod following the November event.

In a statement after the verdict was delivered, Ross said the case appeared to be the first in Ohio to reference the Ohio Revised Code’s statute that guarantees the First Amendment right of freedom of the press to citizens who film encounters with police.

“The role of the citizen journalist is an important role,” Ross said in his closing remarks. “It’s how we keep our officials and police in check. This is not just Athena’s Constitutional right, it’s our Constitutional right.”

But that right is accompanied by responsibilities, according to Defense Attorney Adrian King of Xenia, who charged that Fannin’s use of the camera destabilized an already tense situation, undermining the safety of all involved. And according to the ORC statute, a citizen forfeits the right to film encounters with police when the camera interferes with police business.

The jury agreed with King. The verdict was reached in about an hour, finding Penrod not guilty of assault and violation of Fannin’s civil rights. On paid leave from the Yellow Springs Police department since the charges were filed in February, Penrod is currently using accumulated vacation time and will likely return within a week or two in her former position as daytime sergeant, according to Police Chief Dave Hale this week.

“This was clearly an unfortunate event that everyone involved in wishes hadn’t occurred. The case has now gone through the criminal justice system,” Hale said. “From here, we move forward. If there’s damage to the public trust, we will try to rebuild that trust.”

In a comment this week, Fannin said that she wasn’t surprised at the trial’s outcome, given the history of jury selection in cases involving police. However, she said, “I want to emphasize that none of the steps I took were done lightly or without thought or care. I did what I thought was best for the community and for the police. I believe I did the right thing and am sorry I couldn’t bring more people along with me.”

Penrod did not respond to several phone calls requesting comment.

The prosecution’s case
According to testimony at the trial, on the morning of Nov. 5, 2014, Fannin looked out the window of her Allen Street home to see two police officers, Officer Mark Charles and Officer Tom Sexton, in her driveway, apparently verifying the license plates on her car. She walked outside to find out why the police were on her property, but Officer Charles said only that they were meeting someone. She protested their activity checking out the license plates on the two cars — her van and her health aide’s car — and asked who had given permission.. Fannin then asked her health aide to go inside the house and bring her the camera, as the unexplained police presence was unnerving.

“I wanted to document the incident,” Fannin said.

Fannin asked the officers who had given them permission to run the plates on her car. At that point, Sergeant Penrod, who arrived in a separate car, stated that she did. Fannin’s aide gave her the camera and after Fannin looked down to check it, she looked up to see Penrod, “rushing me with her hand coming at me,” and telling Fannin she could not record. A three-second video of the moment was widely viewed on Facebook.

According to Fannin, who is disabled and often uses a cane or wheelchair, Penrod yanked on the camera and twisted Fannin’s wrists to release it. Fannin asked Penrod to stop hurting her, she said in front of the jury, and Officer Charles steadied Fannin to keep her from falling. Penrod also threatened Fannin with jail if she didn’t give up the camera, which Penrod finally secured.

At that point, the three officers turned to leave, although Fannin said she heard Penrod make derogatory remarks, including “pathetic” and “disgusting.”

“I didn’t expect Yellow Springs police to act like that,” Fannin said, stating that at no point had she been aggressive toward police.

Later, feeling unwell, Fannin said she visited a local emergency room, where she was told muscles had been strained. She was then released, although no medical records from the visit were introduced at the trial.

In his testimony as second witness for the prosecution, Officer Charles said the two police were called to the Allen Street property to act as a peaceful presence while eviction papers were served — the officers did not realize upon arriving that the server had already come and gone. A witness to the skirmish between Penrod and Fannin, Charles, who was a trainee at the time, said the event was upsetting to him.

“I saw no reason to take the camera,” he said. “Somewhere, something was not right.”

When the three officers returned to the station, Penrod told Charles, who she supervised, “that’s not the way you handle that situation, that was not correct,” he said.

The third officer on the scene, Officer Sexton, presented a slightly different picture of the event, with an focus on Fannin being distraught with the officers and “not letting us get a word in edgewise,” though he said she did not interfere with the police doing their job. In cross examination from Attorney King, Sexton stated that Fannin’s agitated demeanor, and the distraction of the camera, had kept police from taking proper safety precautions.

In his testimony, Chief Hale of Yellow Springs described receiving a call from Penrod just after the incident, during which she “said she had messed up, she took the camera from a citizen.” Hale later made two visits to Fannin to speak with her, saying that, “She was professional, polite” but upset about the incident. Hale also said he knew there would be an investigation into the incident, so he didn’t question Penrod further at the time.

Several weeks earlier, Hale said, he had presented a briefing to his officers about citizens’ right to videotape encounters with police, sparked by an open carry demonstration expected at the October Street Fair.

Asked by Attorney Ross if he felt Penrod had a legal right to take the camera, Chief Hale said, “No.”

In cross examination, King honed in on the verbal nature of Hale’s Street Fair briefing, and the department’s lack of written policies and procedures regarding police interacting with citizens who videotape police. He asked how police can be expected to know how to interact in such situations, when there are no written policies or procedures.

“You can’t have a procedure for everything. To some extent it comes back to experience,” Hale said.

The prosecution’s final witness was Detective Darlene Buxton of the Clark County Sheriff’s Office, who interviewed Penrod for the independent investigation. Buxton said Penrod did not have a clear answer about why she took Fannin’s camera, although she alluded to her previous work on the ACE Task Force, where officers are trained to not allow themselves to be photographed.

Defense perspective
Penrod began working part time for the ACE Task Force, which mainly investigates drug-related crime, in 2008, and then came on the force full time for most of 2013, after which she was promoted to sergeant in Yellow Springs. However, she still helped out the Task Force when asked to do so.

Bruce May, the head of the Task Force and the first witness for the defense, emphasized that he instructs those who work for the group to maintain anonymity as much as possible. While anonymity is especially important for officers working undercover, which Penrod had stopped about a year earlier, it was also critical for those who worked on surveillance during drug busts, which Penrod still did.

“Even if it’s surveillance, you need to have your anonymity protected,” May said, stating that publicity could compromise the safety of everyone involved in a bust.

“You have to be careful,” he said.

Asked by King if he would direct an officer to take a camera away from a citizen, May replied, “I have done that.”

However, he said, if an officer removes a camera from a citizen and the citizen wants it back, “In 2015 I would give it back.”

Later, in cross examination from Ross, Penrod acknowledged that in fact she has allowed photos of herself to be made public, such as a 2014 photo in the Yellow Springs News showing her involvement in a youth leadership program. The difference, Penrod said at the trial, was that the News photo was in a positive context, whereas she believed that Fannin would use the videotape in a negative way.

In her description of the Nov. 5 event, Penrod, the second and final witness for the defense, described her past work for the ACE Task Force, and the paramount importance of safety for all involved. Her training, both for the task force and the local department, emphasized the necessity of limiting distractions when on a call.

“Distractions interfere with safety,” she said. “You have to minimize them.”

The scene at the Allen Street house was chaotic when Penrod arrived, she said, with Fannin agitated and not listening to officers’ instructions. And when Fannin attempted to introduce the camera into the mix, Penrod needed to stop her.

“It was another distraction,” she said. “It was interfering with why we were there.”

Regarding the allegation that she hurt Fannin when taking the camera away, Penrod said she had never touched her, and she never heard Fannin say she felt hurt.

Overall, Penrod said, she knows she did the right thing in taking the camera away.
“I have no regrets of my action,” she said.

Asked by Prosecuting Attorney Ross why she appeared to apologize to the chief and her fellow officer following the incident, Penrod said she was describing the situation as messed up, and not her own actions.

“I didn’t think I was wrong, I thought the whole situation was wrong,” she said.

Part of King’s defense strategy was depicting the Yellow Springs police department as a young group of officers who lack training and written instructions on how to interact with citizens with cameras.

“These officers were in a situation of having to make split-second decisions with no procedures or training,” he said, stating, “They were on their own.”

And in her testimony, Penrod said she only understood Hale’s briefing on citizens’ rights to videotape police as relevant to the Street Fair, not in general.

In his closing remarks, King emphasized the risk involved in police work, and the need for constant vigilance.

“Officers have to treat everyone as a threat. If they don’t, they might not make it home,” he said. “It’s tough being a cop.”

King emphasized that to find Penrod guilty of assault, they had to find that she had intentionally caused harm and intentially taken away Fannin’s civil rights. However, he said, Penrod could not have intentionally taken away her civil rights because she didn’t understand them, having no written policies from her department.

The jury agreed with King, and returned verdicts of not guilty on both counts.

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