E-FILED 2014 MAR 28 10:35 AM POLK - CLERK OF DISTRICT COURT
IN THE IOWA DISTRICT COURT FOR POLK COUNTY
__________________________________________________________________________
Des Moines Register and Tribune Company,
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Plaintiff,
v.
The Iowa Department of Public Safety; The
Iowa Division of Criminal Investigation;
Larry Noble, DPS Director; James J.
Saunders, DPS Director Investigative
Operations; Charis M. Paulson, DCI
Director; and Gerard F. Meyers, DCI
Assistant Director – Field Operations,
Defendants.
EQCE076259
Case No. __________
Petition in Equity and
Request for Order of Mandamus
__________________________________________________________________________
Pursuant to Iowa R. Civ. P. 1.401 and Iowa R. Civ. P. 1.402, Plaintiff Des Moines
Register and Tribune Company brings this Petition and Request for Order of Mandamus against
Defendants, the Iowa Department of Public Safety, the Iowa Division of Criminal Investigation,
DPS Director Larry Noble, DPS Director Investigative Operations James J. Saunders, DCI
Director Charis M. Paulson and DCI Assistant Director Gerard F. Meyers.
A. Backdrop
“What really galls me is that when the people are kept in the dark
and as a result of it, they suspect bad things are going on.”
IOWA GOVERNOR TERRY E. BRANSTAD, MARCH 24, 2014
1.
According to a state government press release issued on September 23, 2013, on
the preceding night at 11:30 p.m., Worth County deputies attempted to subdue a male subject
and eventually handcuffed him. The press release noted, “While the suspect was handcuffed, he
became unresponsive. Efforts to revive him were unsuccessful and he was pronounced dead.”
2.
The press release concluded, “Additional information will be forthcoming.”
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3.
Instead, state government has kept the people in the dark about what occurred on
September 22, 2013, and how a 39-year-old Charles City man died at the hands of peace officers.
4.
This lawsuit seeks to remedy the State’s secrecy.
5.
Thus, this lawsuit is brought under the Iowa Public Records Act, Iowa Code
Chapter 22 (the “Act”) to enforce the provisions of that open government law and to invoke the
equitable powers of the Court under the Act and otherwise to order release of public records and
information in furtherance of the public interest, including keeping government information open
and readily accessible, holding public officials fully accountable, and insuring that the actions of
those who serve and protect are fully disclosed to and understood by the citizens of Iowa.
B. Plaintiff
6.
Plaintiff Des Moines Register and Tribune Company (“Plaintiff” or “the
Register”) is a corporation formed and in good standing under the laws of the State of Iowa, with
its principal place of business located at 400 Locust Street, Suite 500, Des Moines, Iowa 50309.
7.
Through its Register Media operations, Plaintiff operates as an innovative multi-
platform, news and information and advanced marketing services company. It publishes The
Des Moines Register and the Des Moines Sunday Register, Iowa’s largest and leading daily and
Sunday newspapers of general circulation, along with 10 community and weekly newspapers,
Juice (a free Young Professional weekly entertainment and lifestyle publication), niche
publications and special sections, and a multitude of web and mobile sites including
DesMoinesRegister.com, HawkCentral.com, DMJuice.com, and RAGBRAI.com.
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C. Defendants
8.
The Iowa Department of Public Safety (“DPS”) was created by under statutes of
the State of Iowa, constitutes a department of the State of Iowa, and is supported in whole or in
part by taxpayer funding.
9.
The DPS states its goal as a state agency is to provide “Public Safety and
Criminal Justice services that allow the people of Iowa to enjoy a high quality of life in safe
communities, while facilitating economic growth.”
10.
The Iowa Division of Criminal Investigation (“DCI”) was created by statute in
1921, now operates as a division of DPS, and today remains supported in whole or in part by
taxpayer funding.
11.
The DCI holds itself out as a state agency that provides “investigative support and
expertise to law enforcement agencies across the state” and states its mission includes
empowering “its employees to provide services, maintaining the highest professional and ethical
standards, ‘that guilt should not escape nor innocence suffer.’”
12.
The DPS constitutes a “government body” under Iowa Code § 22.1(1).
13.
The DCI constitutes a “government body” under Iowa Code § 22.1(1).
14.
At the times relevant to the public records requests underlying this lawsuit, Larry
Noble served as the Director of the DPS.
15.
Noble was and/or is a lawful custodian for the public records of the DPS and the
DCI, including the documents in issue in this case.
16.
At the times relevant to the public records requests underlying this lawsuit, James
J. Saunders served as DPS Director Investigative Operations.
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17.
Saunders was and/or is a lawful custodian for the public records of the DPS and
the DCI, including the documents in issue in this case.
18.
At the times relevant to the public records requests underlying this lawsuit, Charis
M. Paulson served as the DCI Director.
19.
Paulson was and/or is a lawful custodian for the public records of the DCI,
including the documents in issue in this case.
20.
At the times relevant to the public records requests underlying this lawsuit,
Gerard F. Meyers served as Assistant Director – Field Operations for the DCI.
21.
Meyers was and/or is a lawful custodian for the public records of the DCI,
including the documents in issue in this case.
22.
Meyers made and/or communicated the decisions to withhold the documents and
information in issue in this lawsuit from the Register.
23.
The DPS, the DCI, Noble, Saunders, Paulson, and Meyers collectively are
referred to as “Defendants.”
D. Jurisdiction and venue
24.
This Court has personal and subject matter jurisdiction over the parties and this
dispute, in part, pursuant to Iowa Code §§ 22.5 and 22.10.
25.
The public records requests and denials in issue in this lawsuit occurred in Des
Moines, Iowa.
26.
Each of the Defendants had and/or has possession of copies of the public records
in issue in Des Moines, Iowa.
27.
The principal place of business for each Defendant is Polk County, Iowa.
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28.
Venue in the Iowa District Court for Polk County therefore stands as proper, in
part under Iowa Code § 22.10(1).
E. Background facts
29.
Defendants maintained and/or maintain in their possession records and
information of or belonging to the State of Iowa, including documents relating to one or more
use of force reports detailing incidents where members of Iowa state, county and local law
enforcement agencies use guns that fire electrified darts to stun and immobilize a person.
30.
Defendants commonly refer to the high-voltage stun guns used by Iowa law
enforcement officials as “Tasers,” in recognition of the brand name of an electroshock weapon
sold by Taser International that uses electrical current to disrupt voluntary muscle control so that
a person hit by the projectile discharged by the weapon suffers neuromuscular incapacitation.
31.
Use of Force reports generally are created whenever a law enforcement officer
discharges a Taser, just as when he or she fires a service weapon.
32.
This is common practice in part because Iowa Code § 804.8 limits when Iowa
local, county or state law enforcement officers may use force and when they may use deadly
force in connection with an arrest. Iowa Code § 804.8 states:
804.8 Use of Force by Peace Officer Making an Arrest.
A peace officer, while making a lawful arrest, is justified in the use of any force
which the peace officer reasonably believes to be necessary to effect the arrest or
to defend any person from bodily harm while making the arrest. However, the use
of deadly force is only justified when a person cannot be captured any other way
and either
1.
The person has used or threatened to use deadly force in
committing a felony or
2.
The peace officer reasonably believes the person would use
deadly force against any person unless immediately apprehended.
A peace officer making an arrest pursuant to an invalid warrant is
justified in the use of any force which the peace officer would be
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justified in using if the warrant were valid, unless the peace officer
knows that the warrant is invalid.
33.
The public has a significant interest in knowing the circumstances whenever law
enforcement officials use force and whether such use of force or use of deadly force conforms
with the protections afforded private persons under Iowa Code § 804.8.
34.
Law enforcement use in Iowa of Tasers has led to tort claims and settlement
payments by Iowa government agencies.
35.
For example, an incident in Des Moines County in which a deputy discharged a
Taser into a man who was already on his knees and had his hands behind his back resulted in the
payment by the county of $80,000 to settle a lawsuit.
36.
Within the DPS itself in 2012, there were 99 documented Use of Force reports
filed within the department. Of those 99 cases, 97 were determined to be within policy. One
case was determined to be outside of policy and resulted in a sustained case against the officer.
The other report was administratively closed due to a process error.
37.
More recently, in 2013, a death involving police use of a Taser occurred in
Johnson County and an incident not connected with an arrest occurred at the Muscatine County
Jail when a jailer used a Taser four times on inmate Marie Franks in an effort to force her to
change her clothing.
38.
The DCI has declined to release records relating to the July 22, 2013 death of
Thomas Martinez Jr., who was “tased” by a Coralville police officer after he had mini seizures as
officers were dealing with him. Martinez became brain dead and died shortly after the incident.
39.
The DCI’s declination in the Martinez case was based on the agency’s assertion
that the investigation in that matter was ongoing.
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F. The Michael Zubrod homicide
40.
As recounted in paragraph 1 of this Petition, on September 22, 2013, the Worth
County Iowa Sheriff’s Department pursued and thereafter placed a suspect by the name of
Michael Zubrod into custody.
41.
During the efforts by deputies of the Worth County Iowa Sheriff’s Department to
apprehend Zubrod, the suspect resisted.
42.
Worth County law enforcement officers discharged more than one stun gun shots
into Zubrod, thereby subduing the suspect. They next placed him in custody and restrained him
with wrist and leg cuffs.
43.
After restraining Zubrod, deputies noticed that he was not breathing. Paramedics
on the scene administered CPR and transported Zubrod to Mercy Hospital in Mason City, where
he was later pronounced dead.
44.
The Iowa State Medical Examiner’s Office in Ankeny conducted an autopsy of
Zubrod, issued a report, and ruled his death a homicide.
45.
Thereafter, the DCI obtained, generated, created and/or compiled various
documents and information relating to the Zubrod homicide.
46.
Among those documents are four press releases issued by DPS under the heading
“Northwood Death Investigation” that are attached and incorporated here as Exhibit 1.
47.
On information and belief the Register asserts such records including copies of
Use of Force reports, supplemental documentation involving use of an Electronic Control
Device/Taser, video captured from the Electronic Control Device/Taser, video captured from
other sources such as a body camera worn by law enforcement, Electronic Control Device/Taser
records for each device discharged during the apprehension of Zubrod on September 22, 2013,
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including information showing how long each “tase” used on Zubrod lasted, toxology and
autopsy reports for Zubrod, and reports by the Worth County Attorney’s Office concluding the
actions of Deputies Isaac Short, Shayne Hoch and John Smith were justified.
48.
On information and belief the Register asserts the DCI reviewed some or all of
those categories of documents, the incident reports filed by the peace officers involved and
perhaps other records so that it could reach its conclusions about the use of force with and the
death of Zubrod.
49.
On information and belief the Register asserts the DCI has prepared one or more
documents setting forth findings, conclusions and recommendations about the Zubrod homicide
and whether charges should be filed or further action should or should not be taken.
50.
The Worth County Attorney publicly stated he will take no actions in connection
with the Zubrod death.
51.
On information and belief the Register asserts the DCI has made selective
disclosures of information about its findings, recommendations and decisions just as it has
provided limited records and facts.
52.
The public disclosures by the DCI have included differing or inconsistent
positions and statements about key issues of public importance:
•
The number of times a Taser was used and by how many deputies.
The DCI’s first release was made public on September 27, 2013, five
days after the incident. It indicated one deputy used a Taser on Zubrod,
but did not state how many times the device was deployed. A second
statement, made public October 31, 2013, indicated two deputies used
Tasers on Zubrod but did not state how many times. The third
discussion, made public February 28, 2014, in connection with one of
the Register’s public records requests in issue in this case, said a third
deputy at least attempted to use a Taser on Zubrod and indicates
Zubrod was subject to four Taser jolts — and possibly more.
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53.
•
Whether deputies were injured. The DCI’s first statement did not
mention deputy injuries. The second stated Zubrod approached a
deputy with a pair of pliers in an aggressive manner, but did not note
any injuries. The third DCI disclosure said Zubrod used a pair of
needle-nose pliers and struck a deputy multiple times in the leg.
•
Whether Zubrod threatened the deputies’ lives. The first and
second DCI releases do not make this allegation. The DCI’s third
statement indicated Zubrod threatened the deputies’ lives.
•
Details about Zubrod’s death. The first DCI release led the public to
believe Zubrod died at the scene. The second and third statements
indicated he died at an area hospital.
When asked to comment on the discrepancies about the number of times the
Tasers were deployed in the incident that led to Zubrod’s death, Saunders told the Register:
54.
•
“You can count it however you want to do it.”
•
“You just have to take this document and the information within it and
interpret it however you need to interpret it for the purposes of your
story.”
•
“We could probably give this to any number of different people, and
they would probably interpret attempt versus usage many different
ways.”
Through its counsel, DPS and DCI also have taken varying positions on
availability of the information about the Zubrod death as they initially denied access on the
ground the records were part of an ongoing investigation.
55.
Once the investigation was closed and the Register renewed its request to inspect
and copy records relating to the Zubrod death, through its counsel DPS and DCI said releasing
documents could be burdensome for agencies like the DCI because of the hundreds of requests
the agency receives every year and that “you have to treat everyone the same.”
56.
The counsel for DPS and DCI also stated that other law enforcement agencies
would be less likely to work with the DCI if it made records available to the public.
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G. This lawsuit
57.
The records and documentation set forth in paragraphs 44 through 50 and related
papers, audio, video or other electronic information in the DCI’s possession relating to the
Zubrod death, if any, hereafter individually and collectively are referred to as the “Zubrod Taser
Death Records.”
58.
The Zubrod Taser Death Records include documents and/or other information
stored or preserved in any medium, including electronic or digital form, belonging to the State of
Iowa, the DPS and/or the DCI that are or were at the time requested in Defendants’ possession.
59.
Accordingly, the Zubrod Taser Death Records constitute “public records” within
the meaning of Iowa Code § 22.1(3).
60.
As of March 28, 2014, and at other times material to the matters raised in this
Petition, each Defendant was a “lawful custodian” of public records belonging to and/or in the
possession of the State of Iowa and/or the DCI, including but not limited to the Zubrod Taser
Death Records.
61.
On October 18, 2013, and again on December 16, 2013, more than 20 calendar
days prior to the filing of this lawsuit, Jason Clayworth, a news reporter employed by the
Register, submitted requests to Defendants to inspect and copy the Zubrod Taser Death Records.
62.
The December 16, 2013 request for inspection and copying of the Zubrod Taser
Death Records expressly noted the DCI’s investigation of the death of Zubrod was completed.
63.
Exhibit 2 to this Petition contains copies of the Register’s public records access
requests made on October 18, 2013, and again on December 16, 2013, and those requests are
incorporated here by this reference.
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64.
Defendants refused to grant the Register’s requests by letters October 31, 2013,
and February 28, 2014, copies of which are attached as Exhibit 3 and incorporated here by this
reference.
65.
Defendants thereby denied the Register its rights to inspect and copy public
records and information in possession of all or some of the Defendants and further deprived the
Register and its newspaper and web readers and viewers the opportunity to obtain the
information and data contained in the Zubrod Taser Death Records.
66.
Accordingly, to enforce its access rights and to gain information that should be
released by Defendants to promote and preserve the public interest, the Register brings this
action pursuant in part to Iowa Code § 22.10 to enforce the requirements of the Act and,
independently, to invoke the equitable powers of the Court to order by mandamus that public
records be disclosed even though a confidentiality provision of the Act or Iowa law might
otherwise allow government officials to withhold information in their possession from the
knowledge of the public and the press.
H. Cause of action under Iowa Code §22.10
67.
Defendants: (a) are subject to the mandates of Iowa Code Chapter 22, (b) had
and/or have government records in their possession, including the Zubrod Taser Death Records,
and (c) failed to make those records available for copying and inspection by the Register.
68.
Each Defendant therefore has the burden of demonstrating its or his compliance
with Iowa Code Chapter 22.
69.
Defendants cannot carry their burden of demonstrating that they have complied
with the Act with respect to their refusal to make any or all of Zubrod Taser Death Records, or
segregated portions thereof, available to the Register.
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70.
Defendants lacked a lawful basis to delay release and/or withhold information
from the requested public records that was not exempt from disclosure from inspection and
copying by the Register.
71.
Pursuant to Iowa Code § 22.10, a District Court shall order enforcement remedies
as prescribed therein upon a finding that Iowa Code Chapter 22 has been violated.
72.
The DPS, the DCI, Noble, Saunders, Paulson, and Meyers violated Iowa Code
Chapter 22 by delaying and denying the Register’s access to the Zubrod Taser Death Records.
I. Causes of action under Iowa Code §§ 22.5 and 22.7 and the authority of Hawk
Eye v. Jackson, 521 N.W. 2d 750 (Iowa 1994)
73.
The public policy of this state and the mandate of Iowa Code Chapter 22 are that
“free and open examination of public records is generally in the public interest….” See Iowa
Code § 11.8(3).
74.
This Court, pursuant to Iowa Code § 22.5, is empowered to enforce the rights of
the Register by mandamus and injunction.
75.
This Court further is empowered by Iowa Code § 22.7 to order the release of the
contents of public records even if they otherwise are covered by an exemption to disclosure
listed in Iowa Code § 22.7, for example, the provision of Iowa Code § 22.7(5) allowing certain
peace officer’s investigative reports to be kept secret.
76.
This Court also holds general equitable powers to compel release of public
records and government information to the press and the citizenry.
77.
The decision in Hawk Eye v. Jackson, 521 N.W. 2d 750 (Iowa 1994) is directly on
point and provides independent grounds and authority for release of the Zubrod Taser Death
Records, or at a minimum of the DCI report(s) based upon the Zubrod Taser Death Records.
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78.
In Hawk Eye, the Iowa Supreme Court ordered the release of a DCI report after
the conclusion of an investigation, noting, “Under the unique facts of this case, any public harm
created by the disclosure of the DCI investigatory report is far outweighed by the public harm
accruing from its nondisclosure.” Id. at 754.
79.
In reaching that determination, the Court discussed the “community interest and
concern over allegations of police brutality” and noted, “There can be little doubt that allegations
of leniency or cover-up with respect to the disciplining of those sworn to enforce the law are
matters of great public concern.” Id. at 753-54.
80.
The Court then said it would order the DCI to release a report that arguably
otherwise might be a public record exempted from disclosure under Iowa Code § 22.7(5)
because “So long as it is barred from seeing the report, the newspaper is effectively prevented
from assessing the reasonableness of the official action.”
81.
The facts of Hawk Eye parallel those in this case and the public interest in the
increasing number of Taser deaths such as the Zubrod homicide is equal if not greater
importance and of paramount legitimacy.
82.
Unless the DCI’s report and its Zubrod Taser Death Records are disclosed to the
Register, it and the news readers and viewers it serves are “effectively prevented from assessing
the reasonableness of the official action” of the DPS, the DCI, the Worth County Attorney and
the Worth County peace officers involved in the death of Michael Zubrod.
83.
The DCI’s investigation of Zubrod’s death is closed and the Worth County
Attorney has stated no further actions will be taken.
84.
On information and belief, the Register asserts that no civil litigation regarding
the Zubrod homicide presently appears of record on Iowa Courts Online.
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85.
Under the unique facts of this case, any public harm created by the disclosure of
the DCI report(s) about Zubrod is far outweighed by the public harm accruing from its
nondisclosure.
J. Relief
WHEREFORE, Plaintiff Des Moines Register and Tribune Company requests that the
Court:
A.
Hold the trial of this matter on an expedited basis and as part thereof
receive into evidence and review on an in camera basis all of the Zubrod
Taser Death Records withheld by Defendants to date;
B.
Declare that each of the Defendants — the Iowa Department of Public
Safety, the Iowa Division of Criminal Investigation, DPS Director Larry
Noble, DPS Director Investigative Operations James J. Saunders, DCI
Director Charis M. Paulson, and DCI Assistant Director Gerard F. Meyers
— has violated Iowa Code Chapter 22;
C.
Order by mandatory injunction and/or mandamus that each of the
Defendants shall:
(1)
Comply with the requirements of Iowa Code Chapter 22 in this
case under penalty of contempt;
(2)
Immediately provide to the Register copies of each and every
document or record that comprises the Zubrod Taser Death
Records; and
(3)
Pay all costs and reasonable attorneys’ fees incurred by the
Register in this matter;
D.
Grant the Register all such other relief afforded under and/or mandated by
Iowa Code § 22.10, including without limitation the assessment of
damages against the Iowa Department of Public Safety, the Iowa Division
of Criminal Investigation and each other Defendant as required by that
provision;
E.
Enter all equitable relief in favor of the Register as authorized and
permitted under Iowa Code §§ 22.5 and 22.7, common law, and the
authority of Hawk Eye v. Jackson, 521 N.W. 2d 750 (Iowa 1994); and
F.
Award the Register such further relief as may be just and proper.
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Dated: March 28, 2014.
FAEGRE BAKER DANIELS LLP
By: /s/ Michael A. Giudicessi
Michael A. Giudicessi AT0002870
[email protected]
801 Grand Avenue, 33rd Floor
Des Moines, IA 50309-8011
Telephone: 515-248-9000
Facsimile: 515-248-9010
ATTORNEYS FOR PLAINTIFF DES MOINES
REGISTER AND TRIBUNE COMPANY
Attachments:
Exhibit 1:
DCI “Northwood Death Investigation” Press Releases
Exhibit 2:
The Register’s access requests dated October 18, 2013, and December 16,
2013, relating to the Zubrod Taser Death Records
Exhibit 3:
DCI’s denial letters dated October 31, 2013, and February 28, 2014,
relating to the Zubrod Taser Death Records
US.53873122.10
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EXHIBIT 1
DMR v. DPS
Page 1 of 5
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EXHIBIT 1
DMR v. DPS
Page 2 of 5
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EXHIBIT 1
DMR v. DPS
Page 3 of 5
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EXHIBIT 1
DMR v. DPS
Page 4 of 5
E-FILED 2014 MAR 28 10:35 AM POLK - CLERK OF DISTRICT COURT
EXHIBIT 1
DMR v. DPS
Page 5 of 5
E-FILED 2014 MAR 28 10:35 AM POLK - CLERK OF DISTRICT COURT
The Des Moines Register/Jason Clayworth
400 Locust St., Suite 500
Des Moines,IA 50309
515-699-7058
[email protected]
Oct. 18,2013
Worth County Sheriff Jay Langenbau
1000 Central Ave.
Northwood,IA 50459
Sent via e-mail
Att: Jay Langenbau Sheriff; Worth County Attorney Jeffrey Greve
I am seeking this information under Iowa's open records law
I am requesting copies of the force report and all supplemental documentation of the Sept.22,
2013 incident involving the use of a taser on Michael Zubrod.
This request includes, but is not limited to, body cameras attached to law enforcement during the
incident as well as the video captured from the taser.
I also request a copy ofyour records retention schedule
If for some reason you deny my request, I am requesting that you retain all videos/records even if
your department/county has policies in place to destroy such evidence after a set period of time.
As you know, Iowa law provides that if parts of a document are exempt from release, the
remainder must be separated and disclosed. Therefore, I ask you to send me all nonexempt
portions of the records, which I have requested, and ask that you cite specific exemptions in Iowa
law for any information you deny. I reserve the right to appeal your decision to withhold any
materials.
If possible, I request that these records be provided in an electronic format, specifically forwarded to me
in an email to [email protected] If that format is not practical or feasible, please contact me to
arr ange an alternative.
I am prepared to pay reasonable research and duplication fees in connection with this request. I
am a journalist employed by The Des Moines Register, and intend to use the information to help
inform the public. Therefore, I ask that you waive all search and duplication fees. If you deny
this request, however, and the fees will exceed $50, please notify me of the charges before you
fill my request so that I may decide whether to pay the fees or appeal your denial of my request
for a waiver.
EXHIBIT 2
DMR v. DPS
Page 1 of 4
E-FILED 2014 MAR 28 10:35 AM POLK - CLERK OF DISTRICT COURT
I am making this request in the capacity of a journalist, and this information is of timely
value, I will appreciate your communicating with me by telephone or e-mail, rather than by mail,
if you have any questions regarding this request.
Because
Please confirm that you have received this letter.
Thank you.
Sincerely,
Jason Clayworth
EXHIBIT 2
DMR v. DPS
Page 2 of 4
E-FILED 2014 MAR 28 10:35 AM POLK - CLERK OF DISTRICT COURT
The Des Moines RegisteriJason Clayworth
400 Locust St., Suite 500
Des Moines,IA 50309
515-699-7058
[email protected]
Dec.16,2013
Iowa Division of Criminal Investigation
215 E.7sth ST.
Des Moines,IA 50319
Sent via e-mail
Att: Charis Paulson, director; Gerard Meyers, assistant director of field operations; Jeff
P
eterzalek, Attorney General' s Ofhce
I am seeking this information under Iowa's open records law
Because of the conclusion of the investigation regarding the death of Michael Zubrod,I am again
requesting copies of the force report and all supplemental documentation of the Sept.22,2013
incident involving the use of an Electronic Control Device/Taser in this incident.
This request includes, but is not limited to, any existence of body cameras attached to law
enforcement during the incident as well as the video captured from the Taser.
I'm
also requesting the ECD/Taser records recorded in each device used on Mr. Zubrod that
shows how long each tase used on Mr. Zubrod lasted. If it's not clear, please provide notation
those records which specifically show the recordings related to the Sept.22 incident.
in
Please also provide me any report produced by the V/orth County attorney's office that
concluded the actions of deputies Short, Hoch and Smith were justified. And, if you have them
in your possession, please provide copies of the toxicology and autopsy reports.
As you know, Iowa law provides that if parts of a document are exempt from release, the
remainder must be separated and disclosed. Therefore, I ask you to send me all nonexempt
portions of the records, which I have requested, and ask that you cite specific exemptions in Iowa
law for any information you deny. I reserve the right to appeal your decision to withhold any
materials.
If possible, I request that these records
be provided in an electronic format, specifically forwarded to me
in an email to [email protected] If that format is not practical or feasible, please contact me to
anange an alternative.
I am prepared to pay reasonable
research and duplication fees in connection with this request. I
journalist
am a
employed by The Des Moines Register, and intend to use the information to help
EXHIBIT 2
DMR v. DPS
Page 3 of 4
E-FILED 2014 MAR 28 10:35 AM POLK - CLERK OF DISTRICT COURT
inform the public. Therefore, I ask that you waive all search and duplication fees. If you deny
this request, however, and the fees will exceed $50, please notify me of the charges before you
fill my request so that I may decide whether to pay the fees or appeal your denial of my request
for a waiver.
I am making this request in the capacity of a journalist, and this information is of timely
value, I will appreciate your communicating with me by telephone or e-mail, rather than by mail,
if you have any questions regarding this request.
Because
Please note that I have additionally made the same request with the Worth County Sheriff and
Worth County Attorney in an effort to efficiently obtain the public records requested. This was
done to avoid any delay should some of these records be in the possession of one entity but not
the other.
Please confirm that you have received this letter
Thank you.
Sincerely,
Jason Clayworth
EXHIBIT 2
DMR v. DPS
Page 4 of 4
E-FILED 2014 MAR 28 10:35 AM POLK - CLERK OF DISTRICT COURT
Department of Public Safety
Terry E. Branstad
Governor
Kim Reynolds
Larry L. Noble
Commissioner
Lt. Governor
October 31,2013
The Des Moines Register
ATTN: Jason Clayworth
400 Locust Street, Suite 500
Des Moines, lowa 50309
Dear Mr. Clayworth:
The lowa Division of Criminal lnvestigation has received your request for information concerning the DCI
investigation pertaining to Michael Zubrod. Pursuant to your request for information I am providing you
the immediate facts and circumstances of the case. They are as follows:
The lowa DCI was requested fo assl'sf with an investigation peftaining to an
incidenl in Wo¡th Counly lowa. At approximately 11:30 PM, on September 22,
2013, Wotih County Deputy /saac Short responded to a female yelling for help
from within the residence located at 208 4th Street Notlh in No¡Ihwood lowa,
Deputy Shoft entered the residence and proceeded to an upstairs bedroom
where he obserued Michael Zubrod assaulting his girlfriend, Rhonda Schukei,
with a hammer and a pair of scissors. Deputy Shoft gave Zubrod verbal
commands to sfop as well as deploying his taser to no avail. Zubrod approached
Deputy Sho¡l with a pair of pliers and a struggle ensued. Deputy Shayne Hoch
arrived and assisúed Deputy Shotl who was struggling with Zuþrod. Zubrod
approached Depuly Hoch in an aggressive manner, and he deployed f¡r.s fase4
but it had no effect, Deputy Hoch and Deputy Sho¡l continued to struggle with
Zubrod when Deputy John Smith arrived. Zubrod was eventually subdued.
Moments after the incident, Zubrod stopped breathing and the paramedics
immediately sta¡1ed CPR. Zubrod later died at an area hospital.
lowa Code Section 22.7(5) provides for the confidentiality of law enforcement officers' investigative
reports; therefore, no additional information regarding this investigation is being released.
ln response to your request regarding the records retention schedule, please refer to the following for
specific State of lowa retention provisions:
http://www.iowahistory.org/archives/services-to-governmenUsrc_overview.html
Should you have any questions regarding this correspondence, please do not hesitate to contact me at
my direct number 515-725-6015. lf you have additional questions regarding the confidentiality of law
enforcement officers' investigative reports, you are welcome to contact our department's legal counsel,
Assistant Attorney General Mr. Jeff Peterzalek at 515-281-4213. Thank you.
DIVISION OF CRIMINAL INVESTIGATION o 215 EAST 7ïH STREET o DES MOINES, IOWA 50319-0041 o 515-725-6010
Integrity, Fairness, Respect, Honesty, Courage, Compassion, Service
EXHIBIT 3
DMR v. DPS
Page 1 of 5
E-FILED 2014 MAR 28 10:35 AM POLK - CLERK OF DISTRICT COURT
Sincerely
CHARIS M. PAULSON, Director
lowa Division of Criminal lnvestigation
4*/T
GERARD F. MEYERS, Assistant Director
- Field Operations
cc: Jeff Peterzalek, Attorney General's Office
DCI Case File 2013-052946
EXHIBIT 3
DMR v. DPS
Page 2 of 5
E-FILED 2014 MAR 28 10:35 AM POLK - CLERK OF DISTRICT COURT
Department of Public SafetY
Terry E. Branstad
Governor
Larry L. Noble
Kim Reynolds
Commissioner
Lt. Governor
February 28,2014
The Des Moines Register
ATTN: Jason ClaYworth
400 Locust Street, Suite 500
Des Moines, lowa 50309
Dear Mr. Clayworth:
91,2013, the lowa Division of Criminal lnvestigation
13 for information concerning the DCI investigation
st response law enforcement investigative materials
on 227(5). Furthermore, we have been advised that
at the conclusion of the investigation.
and circumstances
However, we do believe additional information relating to the immediate facts
surrounding this event can be provided. Those are set forth below:
pursuant to your request for information I am providing you the immediate facts and circumstances of the
case. TheY are as follows:
patrolling
;',i::^ieRHONDA
:tieet No¡lh. Deputy SHORI enþred the residence
a locked bedroom door' Deputy SHORI
encountered
he
where
and proceeded upstairs
it
òou¿ near SCHUKET screaming on the other side of the door so he proceeded to kick
open.
tJpon entering the room, Deputy SHORI
l¿
MTCHAEL ZTJBROD h¡t SCHUKEI in the hea
SHORI drew his gun and ordered ZUBRO
SCHUKEI. ZUBROD dropped lhe hammer a
hotster. Once Deputy SHORI'S gun was b
Deputy
sc¡ssors from the'headboard of a-nearby bed and stabbed SCHUKEI in the nec4.
Deputy
effect.
no
lo
with
little
ZUBROD
it
at
fired
SHOR¡ drew his Taser and subsequentty
é¡lOnf alp,mpted to subdue ZUBROD by using a drive stun lechnique wilh the Taser, hut it
was knocked out of his hand during the altercation.
A physical altercation ensued
Deputy SHORI in the leg mult
and handcuff one of his wrisfs
ZIJBROD was able to get to his feet before th
but it
into the soulhwest be-droom. Deputy HOCH drew his Taser and fired it at ZUBROD,
ZUBROD
wilh
struggle
to
conlinued
HOCH
beputy
ana
SHORT
\.9n
htad no effect. Deputy
he was not getting
aùàmpt to nanAcit i¡m. ZUBROD continueA to resíst the officers, stating
tired and he was going to killthem.
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EXHIBIT 3
DMR v. DPS
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E-FILED 2014 MAR 28 10:35 AM POLK - CLERK OF DISTRICT COURT
sho¿ time tater, Worlh County Deputy JOHN SMITH arrived on scene to assisf Depulies
HOCH and SHORT. Deputy SMITH drew his Taser and attempted to fire it at ZUBROD, but
it matfunctioned. Afler Deputy SMITH'S Taser failed to fire, Deputy HOCH loaded anolher
caflridge in his Taser fhing it at ZUBROD'S leg. After liring the caftridge at ZUBROD'S leg
from close range, Depuly HOCH reached up and allempted a drive stun technique with the
Taser. White pertorming the drive stun technique, ZUBROD grabbed the Taser and pulled it
away lrom his body. The aforemenlioned Taser techniques had litlle effect on ZUBROD who
contintted to reslsf anesf.
A
The deputies were eventually able to subdue ZUBROD, handcuffing bolh his /egs and wrisfs.
ZUBROD was ptaced on his side without anything blocking his airway and he stafted to
snore. Moments tater deputies notice ZUBROD did not appear to be breathing and they
notified the paramedics who were across the hall tending to SCHUKEI'S iniuries. The
paramedics immediately staded to pertorm chest cornpressions on ZUBROD while also
removing him from the residence. ZUBROD was transpoñed to Mercy Hospital i¡t Maso¡¡
CiIy where he was later pronounced dead.
During the morning hours on September 23, 2013, an autopsy of ZUBROD'S body was
conducted by the State Medical Exa¡niner's Office in Ankeny, lowa'
sent away for additional toxicology and cardiology testing prior to ruling on
ZUBROD'S cause and manner of death. ln December 2013, fhe SME's Office ruled the
cause of death "Cardiac anhythmia following an altercalion with law enforcetnent in the
seffrng of acute methamphetamine intoxication," and the cause of death was ruled
"Homicide." The SME's office also noted ZUBROD was found to have elevated levels of
methamphetamine in hr.s system as well as coronary aftery dysplasia at the time of the
incident. tt is believed the aforementioned factors, coupled with lhe physicalsfress of hrs
assau/t of SCHUKEI and subsequent altercation with law enforcement, contributed to
Ihe SME's Office
ZUBROD'S death.
The Woñh Counly Attorney, Jeffrey Greve, concluded the actions of Deputies SHOR7,
HOCH and SMITH were iustified.
Should you have any questions regarding this correspondence, please do not hesitate to contact me at
my dírect number 515-725-6015. lf you have additional questions regard¡ng the confidentiality of law
enforcement officers' investigative reporls, you are welcome to contact our department's legal counsel,
Assistant Attorney General Mr. Jeff Peterzalek at 515-281-4213, Thank you.
Sincerely,
JAMES J. SAUNDERS, Director
I nvestigative Operations
lowa Department of Public Safety
2lPage
EXHIBIT 3
DMR v. DPS
Page 4 of 5
E-FILED 2014 MAR 28 10:35 AM POLK - CLERK OF DISTRICT COURT
GERARD F. MEYERS, Assistant Director
lowa Division of Criminal lnvestigation
-
Field Operations
cc: Jeff Peterzalek, Attorney General's Office
DCI Case File 2013-052946
3lPage
EXHIBIT 3
DMR v. DPS
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