Confidentiality Agreement Violated in Police Brutality Case, Settlement Forfeiture Demanded

By Carolyn Schuk
Work Daze

It ain’t over ’til it’s over, as Yogi Berra said. And it looks like the excessive force lawsuit against the City of Santa Clara that appeared to be settled a few weeks ago likewise ain’t over.

The day after the City announced the $6.7 million settlement, plaintiff Danielle Harmon Burfine posted on her YouTube page a police body-cam video of the incident, violating the confidentiality terms of the settlement agreement. Although Harmon Burfine’s attorneys told Judge Nathanael Cousins that the video was taken down, it is still widely available on news and social media websites.

According to the “notice of unintentional violation of protective order” filed with the court by plaintiff’s attorney Michael Haddad, Harmon Burfine posted the video to YouTube after being assured by a member of the law firm that the video wasn’t confidential. The firm’s electronic records didn’t show the video designated as confidential, although the original CDs supplied during discovery were clearly marked confidential. Haddad also supplied the video to the Mercury News.

Had Haddad and his partner Julia Sherwin been told that the video was part of the confidentiality agreement, Sherwin wrote in her statement, “we would have negotiated the removal of that designation as a term of the settlement, as the confidentiality designation was improper.”

Defendants’ attorney Alison Berry Wilkinson disputes that.

“At no time during the settlement discussions,” she wrote in her statement, “did the Plaintiff or her counsel inquire of Defendants whether the body camera video of the Plaintiff’s arrest was designated confidential under the protective order, or did they request that any such confidentiality designation be removed as a condition of settlement.”

Sherwin and Haddad deny that this “good faith, human mistake” makes the settlement any less binding.

“While my office has never violated a protective order before, our research reveals that it is not uncommon for protective orders to be violated, whether unintentionally as happened here, or intentionally,” Sherwin wrote. “Violations of protective orders are typically addressed by courts in a motion for sanctions, not by parties breaching settlement agreements.”

Berry Wilkinson says the matter isn’t as trivial as Sherwin paints it, given the enduring nature of internet content.

The body-cam video was designated confidential because of the nature of the officers’ work in the SCPD’s Special Enforcement Team, Berry Wilkinson wrote. “That assignment requires anonymity in order to perform their duties effectively and to protect their safety.” The unit’s work is “on hold as the officers and their supervisors are now readily identifiable and cannot safely or effectively perform their duties.”

“This has impacted not only their individual operations,” the statement continues, “but the effectiveness of the department as a whole. As there are no individuals currently trained as replacements, crimes involving serious violent felonies cannot be pursued. Consequently, the unit has been effectively neutered.” The officers involved have also received death threats, wrote Berry Wilkinson.

In addition to violating the confidentiality terms of the agreement, Berry Wilkinson wrote that the notice of settlement was filed with the court in bad faith, because “all defendants objected” to finalizing any agreement until after a hearing on the breach of confidentiality.

Harmon Burfine was injured in the course of the arrest of her 15-year-old daughter, who at the time was suspected of setting fire to the Santa Clara High School Snack Shack, causing $350,000 in damage to buildings, sports equipment and uniforms. The girl subsequently pled guilty to the charge as an accessory.

Harmon Burfine tried to interfere with the officers, claiming that they couldn’t enter her house or make an arrest without a warrant.

The police stated they did not need a warrant because they were in “fresh pursuit.” According to Harmon Burfine’s complaint the police kicked the door in and “very forcefully” pushed Harmon Burfine through her doorway, slamming her into a rock and mortar outcropping on her porch. She suffered multiple fractures in her left leg, necessitating multiple surgeries, and was diagnosed with disabling Complex Regional Pain Syndrome as a result of the injuries, according to her attorneys.

The case is 16-cv-04228-EJD, in the U.S. District Court Northern California (San José). A hearing is scheduled Oct. 12, although a request was made Monday to move it to Oct. 19