Wednesday, May 29, 2019

District judge: Coroner wrongfully withheld autopsy reports in deputy's death

Posted By on Wed, May 29, 2019 at 5:27 PM

The media prevailed in a lawsuit on May 29 over then-El Paso County Coroner Robert Bux's  refusal to release autopsy reports for Deputy Micah Flick and suspect Manuel Zetina last year.

click to enlarge Micah Flick was killed in a gun battle on Feb. 5, 2018. - COURTESY EL PASO COUNTY SHERIFF'S OFFICE
  • Courtesy El Paso County Sheriff's Office
  • Micah Flick was killed in a gun battle on Feb. 5, 2018.
District Judge Michael McHenry awarded attorney fees that are approaching $30,000 for the Independent, Gazette and other local media, said media attorney Steve Zansberg of Denver.

"The media's first responsibility is to our readers, which includes shining a light on government activities," Indy Publisher Amy Sweet said. "The Indy will always fight for the public's right to know."

The case stems from the fatal shooting of Flick by Zetina during a Feb. 5, 2018, attempted take-down of the suspected auto theft at an apartment complex at Murray Boulevard and Galley Road. Three other officers also were injured by Zetina, who also shot bystander Thomas Villanueva, 29, who was left paralyzed from the chest down and has filed a lawsuit against various agencies seeking millions of dollars in damages.

After the Indy and Gazette sought the autopsy reports on several occasions following the shooting and were denied access, Bux filed a petition with the court seeking to withhold the reports citing several reasons, including the emotional impact their release would have on Flick's family.

The Independent and the Gazette hired Zansberg (other media outlets — KDVR, KUSA-TV, KOAA, KKTV, and Fox21 —  joined the fight shortly after), who argued the law requires a coroner to cite substantial injury to the public interest under a unique and extraordinary set of circumstances as a basis for withholding the reports.
click to enlarge Thomas Villanueva and his friends and family protested outside the Coroner's Office on Aug. 15, 2018, demanding the autopsy reports be released. - PAM ZUBECK
  • Pam Zubeck
  • Thomas Villanueva and his friends and family protested outside the Coroner's Office on Aug. 15, 2018, demanding the autopsy reports be released.
In response, Bux eventually released the reports on September 7 after the District Attorney's Office released its report on August 21 and Colorado Springs Police Department, which investigated the shooting, released its report on September 5.

Zansberg tells the Indy that, had the county not challenged the media's attorney fees, the bill might not have exceeded $1,500. But the media sought to recover its fees, triggering two protracted court hearings that ran up the attorney bill to more than $20,000.

It's unclear whether the county will appeal the judge's ruling.

“El Paso County has a long and proud tradition of transparency. When making the decision to withhold Deputy Flick’s and Mr. Zetina’s autopsy reports, the Coroner’s Office consulted with the Flick family, the Colorado Springs Police Department, the El Paso County Sheriff, and the District Attorney," an email from El Paso County Spokesperson Ryan Parsell stated."The County weighed the law along with the integrity of the investigation with the media and the public’s desire for more information.

"We made the decision to litigate in good faith, and while we respect the court’s opinion, we are considering our next legal steps.”

Recapping Judge McHenry's ruling, Zansberg says, "He basically said that the coroner's decision to withhold these two autopsy reports in their totality on July 12 was not proper, particularly because all the officers involved in the incident had already been interviewed and videotaped during those interviews way back on February 8 and 9."

McHenry also noted he agreed with the media's argument that Bux "had been receiving erroneous advice about what standard needs to be met to withhold autopsy reports," Zansberg says.

While the case won't have binding authority on future cases, Zansberg noted it's a welcome finding, especially in light of the fact that Bux had repeatedly withheld autopsy reports attached to criminal cases over the past year, leading the Gazette to fight for the reports in court over and over. He noted that means that Bux's denial of access to the public reports was "a recurring practice."

Bux retired recently and Dr. Leon Kelly was elected as county coroner in November.

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