The Oklahoma Highway Patrol is withholding public records because of an ongoing investigation, but some say that violates state law.
Troopers involved in a high-speed Tulsa County chase that resulted in the death of an Owasso woman may not have followed guidelines the department recommends for all state law enforcement, records show.
According to a sworn affidavit by a state trooper investigating the pursuit, three Oklahoma Highway Patrol cars chased a man in a stolen pickup through numerous red lights, at speeds greater than 100 mph, until the pickup ran a stop sign and hit a car driven by Etoyce Johnson, 64, of Owasso. She died shortly afterward of injuries sustained in the wreck.
Department Public Information Officer Capt. Paul Timmons issued a statement recently denying that troopers failed to follow policy.
“Our policy regarding pursuits incorporates well-established practices and techniques and is in conformance with Oklahoma and federal law. Our policy has never been found to be unconstitutional or contrary to law. The Troopers involved in this pursuit acted in conformance with OHP Policy,” the emailed statement reads.
The account comes more than three weeks after the June 26 incident, after The Frontier requested the records for the accident from the Oklahoma Department of Public Safety, the parent agency of the Patrol. A record of the pursuit, in radio logs, the affidavit and short teletype were released Tuesday, though DPS officials have still refused to release the official accident report and the department’s pursuit policy.
Etoyce Johnson. Courtesy
According to the affidavit, sworn in by Trooper Matthew Ledbetter, the pursuit began after Trooper Mark Tschetter noticed a red 2004 Dodge pickup, ran the tag and learned it was stolen, then pulled the truck over. Two other patrol cars arrived at the scene to assist, according to the account.
“As troopers prepared to conduct a felony traffic stop, the Dodge fled northbound on Mingo,” the affidavit states. “A pursuit ensued with Tschetter leading as the primary pursuing trooper. Tschetter had his emergency red and blue lights activated and his siren activated. The pursuit continued northbound on Mingo as the Dodge failed to stop for numerous traffic lights which were red at the time the suspect approached/entered the intersections. On many occasions the Dodge travelled left of center and travelled at speeds greater than the posted speed limits.”
The radio log from the chase transcribe Tschetter saying “We are running past 103 Mph…Passing bus plant. I’m going to TVI when I have chance.”
“TVI” stands for Tactical Vehicle Intervention, a maneuver in which a patrol car drives into the rear corner of a vehicle being pursued. It often causes the vehicle to slew sidewise and usually runs it off the road, sometimes with fatal results. A recent case in Seminole County on June 22 led to the death of a man whom troopers say appeared to be driving drunk.
In this case, Tschetter appears to have not been able to close on the runaway pickup. The radio logs tick off the blocks: 36th Street North… “Blew through the light at 46th”…56th, 66th, “Passed vehicle in no passing zone” then… “At approximately 9:49 a.m., the Dodge struck a red Chevrolet four-door sedan at the intersection of 76th Street North and Mingo, in Tulsa County, Oklahoma,” the affidavit states. “The driver of this vehicle, Etoyce Johnson, was critically injured at the scene. Medics from Owasso EMS responded to the scene to treat Johnson. Johnson was transported by Owasso EMS to St John Medical Center in Tulsa. She succumbed to her injuries and was pronounced deceased. The driver and sole occupant of the Dodge was identified as BLAKE LEE FERGUSON.”
The patrol got their man, but at the cost of Johnson’s life. So what does the pursuit policy of DPS state?
The department refused to release those records.
However, documents obtained by The Frontier show DPS has previously issued instructions to all law enforcement in the state that certain protocols should be followed at the onset of a chase.
In the “Performance Plan and Highway Safety Plan for Oklahoma,” the document stresses safety concerns for the operation of state vehicles and use by personnel. It also calls for “relevant law enforcement agencies in the state,” to adopt the policies instituted by the International Association of Chiefs of Police.
Among the contingencies of those policies, the report admonishes would-be pursuing officers that “The decision to initiate a pursuit must be based on the pursuing officer’s conclusion that the immediate danger to the officer and the public created by the pursuit is less than the immediate or potential danger to the public should the suspect remain at large.”
The policy goes on: “Unless circumstances dictate otherwise, a pursuit shall consist of no more than two police vehicles: a primary and a secondary unit.”
According to the affidavit, three troopers were in pursuit in the Owasso chase that resulted in Johnson’s death. And according to the policy, if undertaken, the chase is to be monitored by a supervisor: “Supervisors are responsible for managing all vehicular pursuits to include determining whether the pursuit should continue or be terminated.”
Records show no supervisor is indicated in radio logs or the affidavit related to the crash that killed Johnson. The supervisor is also supposed to approve or disprove the initiation of tactics, such as the TVI: “A supervisor’s permission should be obtained prior to the use of intervention tactics,” the plan states.
Perhaps most crucial in the chain of events in the Owasso chase was the decision to pursue the Dodge in the first place. The policy championed by OHP for all state law enforcement suggests pursuit should only be undertaken for cases where the suspect is presenting an imminent threat. For instance, in the case out of Seminole County, the trooper stated the driver appeared to be drunk and driving erratically at high speeds, a danger to anyone on the highway.
“Pursuit is authorized only if the officer has a reasonable belief that the suspect, if allowed to flee, would present a danger to human life or cause serious injury. In general, pursuits for minor violations are discouraged,” the policy states.
These factors do not appear in the Owasso chase affidavit. Records show drug paraphernalia was found only after the pursuit was over and both cars wrecked. The only reason given for the initial contact was a possible stolen vehicle.
Around the country, most states have adopted guidelines or policies similar to the ones adopted by OHP for the state’s law enforcement authorities to follow. Most discourage or even prohibit undertaking a high-speed chase for any reason but imminent threat.
The Frontier has repeatedly sought records related to the chase that killed Johnson. Officials at OHP still refuse to release several, including the full accident report and the department’s written policy on vehicle pursuits.
Department of Public Safety general counsel Steve Krise said the accident report needs to be withheld pending the outcome of an investigation. Releasing a routine report would be “cutting in line,” Krise said, and claimed that an ongoing lawsuit by The Frontier’s editor in chief, Ziva Branstetter, has discouraged agency from releasing records in the “prompt, reasonable” timeframe required under Oklahoma law.
“It (the lawsuit) was by your editor. So I’ve been forced to adopt the process that treats everybody the same… We used to be able to give reporters things like accident reports quite quickly.”
Records generated during such an incident include a report normally compiled by the Highway Patrol involving any accident, usually within hours. Krise first agreed to release the document, then rescinded that agreement within hours.
“The incident report will not be complete until the investigation has concluded,” Krise said in an email. “However, we are checking to see if any other records associated with the incident may be available for release.”
Joey Senat, president of Freedom of Information Oklahoma and an Oklahoma State University journalism professor, said state law forbids law enforcement from withholding incident reports on the basis of “investigation.”
“They cannot withhold the basic information from an incident report while an investigation is ongoing,” Senat said. “An incident report is public regardless of whether an investigation is completed.”
Senat cited a letter from Oklahoma Attorney General Scott Pruitt instructing law enforcement authorities to release incidents reports despite any ongoing investigation. That letter, written in 2011 to the Oklahoma Association of Chiefs of Police, is available on the FOI Oklahoma website.
The letter states that law enforcement “access to records which under the Oklahoma Open Records Act, would otherwise be available for public inspection and copying, shall not be denied because a public body or public official is using or has taken possession of such records for investigatory purposes or has placed the records in a litigation or investigation file.”
“They are a state agency. There’s not much debate that Pruitt can tell them what the law is, so they need to follow what he said in the letter to law enforcement,” Senat said.
The litigation Krise cited as another reason for not releasing the records is an ongoing lawsuit filed by Branstetter, then working at the Tulsa World, against Gov. Mary Fallin and her appointee, DPS Commissioner Michael C. Thompson, demanding the release of records associated with the botched execution of Clayton Lockett in 2014.
Krise said that he places all OHP records in a file because of the lawsuit, establishing the records as a “queue” in which many are not released when requested, despite already existing. He said the Owasso incident might be “behind” a longer report produced earlier, so he would need to finish the longer one first.
Senat said the records are necessary to give the public oversight of its own law enforcement department, and to determine whether or not those policies are safe for the public.
“The law doesn’t prohibit them from releasing those documents,” he said. “They are choosing not to. And when they choose not to…that makes it look like they are covering their ass.”
