Atlanta Eagle's lawyers want city fined, billed for cost of restoring destroyed records

By Rhonda Cook

The Atlanta Journal-Constitution

The back and forth continued Monday between lawyers for a Midtown gay bar and the city as the businesses’ attorneys said Atlanta is deflecting attention away from allegations that police officers deleted electronic records that a federal judge had ordered turned over.

The lawyers for the Atlanta Eagle bar, which APD’s Red Dog unit raided a year ago, asked a federal judge to find the city’s attorneys in contempt and to order Atlanta to pay what is expected to be a high cost to retrieve e-mails, text messages and cell phone photographs that were deleted.

The Eagle’s lawyers noted that the city acknowledged records were deleted but offered no reason for the destruction or a way of retrieving the information that has been requested in a federal lawsuit filed against APD and Atlanta government.

Dan Grossman, one of the bar’s attorney's, wrote Atlanta’s lawyers continue to ignore “some of the most important issues completely and offers red herring defenses.”

The filing Monday was in response to a document the city's lawyers filed a week ago. In that filing, the city's attorneys acknowledge that records were destroyed, but they say they should not be blamed because two of the four members of Atlanta's legal team had only recently been added to the case.

The lawsuit concerns a controversial raid at the gay bar on Sept. 10, 2009. Bar owners, employees and patrons said APD violated their civil rights by forcing some of them to lie on the barroom floor while members of the Red Dog drug unit searched and peppered them with anti-homosexual comments.

APD initially said the Red Dog officers went to the bar based on reports that drugs were openly sold and men were engaging sex acts while others watched. Eight people were charged with city ordinances involving licensing. A municipal court judge dismissed the cases against three of them and then prosecutors later dropped charges against the remaining five.

As the lawsuit has progressed, one of the biggest issues has been Atlanta Eagle’s complaints that the city’s lawyers have spent most of their energy hiding information or simply ignoring court filings asking for evidence, called discovery. Mayor Kasim Reed  promised an aggressive investigation into claims officers and the Atlanta Police Department erased text messages, cell phone photos and e-mails after a judge ordered turned over to the Atlanta Eagle’s lawyers.

In a court filing on Monday, the Atlanta Eagle noted that the city made no “specific or meaningful attempt to explain or rebut the most serious allegations raised,” the destruction of electronic records and writings about the raid.

The city’s “failure to offer any innocent explanation [for the destruction of data] suggests that no such innocent explanation exists,” the Eagle wrote.

For example, Grossman wrote for the Eagle bar, one officer's cell phone contained 755 contacts in its address book and he sends and receives dozens of text messages daily. Yet when the phone was surrendered to an APD technician for analysis, all information before Aug. 24, had been deleted.  A text message he sent about the raid was found on another officer’s phone, however.

The filing Monday also noted that:

-- One officer’s cell phone address book had 427 contacts and the phone also contained 181 photographs. But text messages sent or received before Aug. 25 were deleted and seven photographs taken during the raid were gone.

-- There were only three pages in the training file of the 18-year APD veteran who was in command of the raid.

-- E-mails  sent to or by Maj. Debra Williams, a member of the police department’s command staff,  after November 2008 were deleted. “But we know that Major Williams used e-mail after November 2008 and that she used e-mail in connection with the Eagle raid because during her deposition she authenticated an e-mail she sent about the Eagle raid on Sept. 11, 2009…. Her e-mail files are now missing,” the lawyers wrote.

-- APD “has detailed minutes of special enforcement section supervisory meetings for every week during the past few years except for the week after the Eagle raid. It is not too much … to assume that a meeting was held that week as well,” the Eagle’s lawyers wrote.