Supreme Court of Virginia

Transcription

1 In The Supreme Court of Virginia RECORD NO EMMETT H. HARMON, Chief of the James City County Police Department, et al., Appellants, v. ADAM L. EWING, Appellee. BRIEF OF AMICI CURIAE LOCAL GOVERNMENT ATTORNEYS OF VIRGINIA, INC., VIRGINIA MUNICIPAL LEAGUE, VIRGINIA ASSOCIATION OF COUNTIES, VIRGINIA ASSOCIATION OF CHIEFS OF POLICE, AND VIRGINIA SHERIFFS ASSOCIATION Annie Kim (VSB No ) 580 Massie Road Charlottesville, Virginia (434) (Telephone) (434) (Facsimile) Counsel for Amici Curiae THE LEX GROUP 1108 East Main Street Suite 1400 Richmond, VA (804) (800) Fax: (804)

2 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES... iii I. INTEREST OF THE AMICI CURIAE... 1 II. STATEMENT OF THE AMICI CURIAE... 4 III. STATEMENT OF THE CASE... 5 IV. ASSIGNMENTS OF ERROR... 6 V. STANDARD OF REVIEW... 6 VI. ARGUMENT... 6 A. Law-Enforcement Personnel Records are Exempt Under Virginia Code (1) The Clear Language of the Exclusion in Virginia Code (1) Includes Law-Enforcement Personnel Records Virginia Code (G) Does Not Strip Law- Enforcement Personnel Records of their Exclusion Under (1) by Subjecting Records to the Requirements and Exemptions of FOIA... 9 a. No Conflict Exists Between (G) and (1) b. The Exclusions in (F)(11) and (G) Do Not Mean that the General Assembly Intended to Treat Law-Enforcement Personnel Records Differently from Other Personnel Records i

3 3. The Plain Meaning Construction Urged by the Police Chief Avoids the Absurd Result Reached by Ewing s Reading B. The Police Chief Did Not Waive Any Necessary Exclusions for Officer Shelton s Records Kept Pursuant to , Nor Did He Waive the (1) Exclusion for Personnel Records C. The Circuit Court Erred in Mandating the Police Chief to Comply with Ewing s Request Under (C) Because it Was Not Reasonably Specific VII. CONCLUSION CERTIFICATE OF SERVICE ii

4 TABLE OF AUTHORITIES PAGE(S) CASES Alston v. Commonwealth, 274 Va. 759, 652 S.E.2d 456 (2007) Bank of the Commonwealth v. Hudspeth, 282 Va. 216, 714 S.E.2d 566 (2011) Campbell v. Harmon, 271 Va. 590, 628 S.E.2d 308 (2006) Conyers v. Martial Arts World of Richmond, 273 Va. 96, 639 S.E.2d 174 (2007) Lawrence v. Jenkins, 258 Va. 598, 521 S.E.2d 523 (1999)... 6, 18, 19, 20 Meeks v. Commonwealth, 274 Va. 798, 651 S.E.2d 637 (2007) Moore v. Maroney, 258 Va. 21, 516 S.E.2d 9 (1999)... 8 Prillaman v. Commonwealth, 199 Va. 401, 100 S.E.2d 4 (1957) Virginia Polytechnic Inst. & State Univ. v. Interactive Return Serv., 271 Va. 304, 626 S.E.2d 436 (2006) STATUTES Va. Code (4)... 7 Va. Code et seq Va. Code (B)... 14, 15 iii

5 Va. Code Va. Code Va. Code (A) Va. Code (B)... 5, 20 Va. Code (B)(1) Va. Code (D) Va. Code Va. Code , 7, 17 Va. Code (1)... passim Va. Code Va. Code Va. Code Va. Code passim Va. Code (C)... 5, 9, 19, 20 Va. Code (F)... 9, 12 Va. Code (F)(11)... 12, 13, 16 Va. Code (G)... passim Va. Code (I)... 9, 11, 14 Va. Code (A) Va. Code (E) iv

6 Va. Code Va. Code Va. Code passim Va. Code Va. Code Va. Code Va. Code RULE Va. Sup. Ct. R. 5: v

7 I. INTEREST OF THE AMICI CURIAE The Local Government Attorneys of Virginia, Inc. ( LGA ), the Virginia Municipal League ( VML ), the Virginia Association of Counties ( VACo ), the Virginia Association of Chiefs of Police ( VACP ) and the Virginia Sheriffs Association ( VSA ) (collectively, the Amici Curiae ), by counsel, hereby respectfully submit this Brief Amici Curiae in Support of Appellants Emmett H. Harmon, Chief of the James City County Police Department and the James City County Police Department (collectively, the Police Chief ). The Local Government Attorneys of Virginia, Inc. ( LGA ) is a nonprofit professional corporation whose attorney members represent seventyseven counties, thirty-eight cities and fifty-eight towns. LGA is charged with protecting and promoting the continuing legal education of local government attorneys; furnishing information to local government attorneys and their offices that will enable them to better perform their functions; offering a forum through which LGA members may meet and exchange professional ideas of import to Virginia local government attorneys; and initiating, supporting or opposing legislation or litigation that, in the judgment of LGA, is significant to Virginia local governments. The Virginia Municipal League ( VML ) is an association of political subdivisions of the Commonwealth of Virginia, currently consisting of thirty- 1

8 nine cities, one hundred fifty-six towns and ten counties. It is formed and maintained pursuant to of the Code of Virginia for the purpose of promoting the interest and welfare of its members as may be necessary or beneficial. VML is an instrumentality of its member political subdivisions. The Virginia Association of Counties ( VACo ) is a non-profit, statewide, independent association organized in 1934 to support county officials and to represent, promote and protect the interests of counties effectively in order to better serve the people of Virginia. VACo s membership includes ninety-four counties. Formed and maintained pursuant to of the Code of Virginia for purposes similar to VML, VACo is an instrumentality of its member counties. LGA, VML and VACo occasionally file amicus briefs on matters of importance to their Virginia local government constituents. The Virginia Association of Chiefs of Police ( VACP ), formed in 1926, is a 501(c)(6) non-profit professional membership association consisting of over 600 active and retired federal, state, local and private law enforcement and criminal justice agency executives, administrators and managers. The purpose of the VACP is to promote the professional development of all executive and management personnel within duly constituted law enforcement agencies in the Commonwealth of Virginia; to 2

9 encourage close cooperation of all law enforcement agencies in the prevention of crime, detection of crime and the apprehension of those responsible for the commission of crimes; to promote the highest standards of the police profession through selection and training of law enforcement officers and generally pledge and strive for the highest degree of respect for law and order throughout the Commonwealth of Virginia. The Virginia Sheriffs Association ( VSA ) was organized in 1933 to represent the interests of sheriffs and deputies across Virginia. The VSA maintains significant involvement in the Virginia General Assembly and in the activities of the agencies of the Commonwealth of Virginia relating to criminal justice. Its primary interest is improving public safety throughout Virginia and improving professionalism in law enforcement by enhancing working conditions for sheriffs and deputies. The VSA is the voice, currently, of 8,519 sheriffs, deputy sheriffs and sheriffs office staff from across Virginia and is the only voice in the General Assembly representing the sole interests of sheriffs and their deputies. The Amici Curiae have been authorized by their respective leadership to participate as amici curiae in this case, and both the Police Chief and Appellee Adam L. Ewing ( Ewing ) have consented to the filing of this Brief pursuant to Rule 5:30 of the Supreme Court of Virginia. 3

10 II. STATEMENT OF THE AMICI CURIAE This case presents issues of broad precedential value to local governments, law-enforcement agencies and thousands of police officers and deputy sheriffs throughout the Commonwealth. In its March 30, 2012 Order (the Order ), the Circuit Court for the City of Williamsburg and County of James City adopted a stark and unprecedented view of the safeguards afforded by the Virginia Freedom of Information Act, Virginia Code et seq. ( FOIA or the Act ). Its ruling comes to this: FOIA categorically excludes law-enforcement personnel records from any protection whatsoever. In addition, even the slightest irregularity in a public body s public records response will trigger a waiver of an otherwise valid exclusion under the Act. This ruling has no basis in the plain language of the Act. Furthermore, this Order, entered by Judge Designate Robert Curran, upsets the careful balance struck by the Virginia General Assembly in Virginia Code (1) and between the privacy interests of law-enforcement personnel and the public s right to obtain public records. If affirmed, this decision will create a substantial, daily burden on officers and their agencies. Law-enforcement officers will be singled out, unaccountably, among all government employees to have their most 4

11 personal records opened to scrutiny life insurance beneficiary designations, records of promotion and demotion, performance reviews, and disciplinary records, to name a few examples. The circuit court also stepped outside FOIA s mandates when it ordered the Police Chief to conduct, essentially, a full investigation into the arrest and charging decisions made by Officer Ryan Shelton and unspecified other officers during the course of an entire year. Of course, the adult arrestee identity and status provisions of Virginia Code (C) mandate nothing of the kind. Ewing s request failed to identify public records with the reasonable specificity required under (B). If affirmed, the circuit court s departures from the plain language and intent of the Act will impair the ability of law-enforcement agencies to protect their employees from intrusion and harassment and to allocate scant staff resources for those duties clearly defined by FOIA. For the foregoing reasons, to be explained further in this Brief, the Amici Curiae support the Police Chief in his appeal to reverse the circuit court s Order. III. STATEMENT OF THE CASE The Amici Curiae adopt the Statement of the Case submitted by the Police Chief in his opening brief. 5

12 IV. ASSIGNMENTS OF ERROR The Amici Curiae adopt the Assignments of Error submitted by the Police Chief in his opening brief, and submit argument as to assignments one and two. V. STANDARD OF REVIEW The Amici Curiae adopt the Standard of Review submitted by the Police Chief in his opening brief. VI. ARGUMENT A. Law-Enforcement Personnel Records are Exempt Under Virginia Code (1) Mandamus is an extraordinary remedy that will be granted in Virginia Freedom of Information Act actions only if the litigant was denied clearly established rights and privileges under FOIA. Lawrence v. Jenkins, 258 Va. 598, 603, 521 S.E.2d 523, 525 (1999). Yet the circuit court granted a writ of mandamus ordering the release of Officer Shelton s personnel records, despite a clearly applicable exclusion for his personnel records. This ruling results from a profound misreading of (1), , , and the Act as a whole. 6

13 1. The Clear Language of the Exclusion in Virginia Code (1) Includes Law-Enforcement Personnel Records In (1), formerly (4), the General Assembly crafted an omnibus exclusion to FOIA s public record provisions for all personnel records. No exception exists for any class of individuals, much less for law-enforcement employees. Absent any clear and express exception to this general exclusion in , , or other provisions in the Act, the exclusion does and must apply to lawenforcement personnel records. Even the nature and placement of reflect the General Assembly s intent to cover the personnel records of all employees. Not simply exempt from disclosure, personnel records containing information concerning identifiable individuals are considered excluded from the provisions of this chapter. Va. Code (1). Like neighboring through , this section lists a number of general exclusions to the Act unrelated to specific agencies. Section then lists limitations to these exclusions, including a limitation to the personnel record exclusion that requires the provision of job positions, classifications, and salary data for employees earning over $10,000. No 7

14 provision carves out law-enforcement personnel records from protection under (1). While undefined by the Act, personnel records have been interpreted broadly by the courts, Attorney General, and the Freedom of Information Act Advisory Council. No Virginia authority has adopted the view that (1) exclusion may be limited to certain classes of employees. In Moore v. Maroney, 258 Va. 21, 26, 516 S.E.2d 9, 12 (1999), this Court opined, in dicta, that under certain circumstances investigative materials dealing with employee misconduct may indeed be a standard part of employee personnel records. The Attorney General and the FOIA Advisory Council have construed personnel records broadly to include certain records of job applicants and even comments about identifiable employees in broadly distributed employee climate surveys Op. Atty Gen. Va. 9 (holding names and qualifications of applicants for employment and selection panel s notes excluded as personnel records ); FOIA Advisory Council Opinion AO (February 14, 2003) (finding comments in employee survey about identifiable employees protected as personnel records ). Finally, to the extent that the (1) definition of personnel records applies to more than employees, but also to identifiable 8

15 individuals, it is broader than the definition, which is limited to individuals employed by a law-enforcement agency. Given the breadth of this exclusion, then, any law-enforcement exception to the exclusion would need to be clearly established in the Act s language. It is not. 2. Virginia Code (G) Does Not Strip Law- Enforcement Personnel Records of their Exclusion Under (1) by Subjecting Records to the Requirements and Exemptions of FOIA Ewing makes two seemingly attractive arguments to support his theory that (C) strips law-enforcement personnel records of all protection under (1). First, he argues that [l]aw enforcement personnel files cannot be both subject to FOIA under (G) and excluded from FOIA under (1). Brief in Opposition to Petition for Appeal at 12. This leads to a conflict between the sections, he argues, resolved by the conflict resolution clause in (I) trumping (1). Second, Ewing argues that since (F) and (G) expressly exempt certain other categories of records under , but not law-enforcement personnel records generally, then the Act intends to leave them unprotected. Id. at Both arguments are demonstrably wrong. 9

16 a. No Conflict Exists Between (G) and (1) The language of (G) is clear. It contains no language that conflicts with the personnel record exclusion found in (1). As this Court well knows, [w]hen the language of a statute is unambiguous, we are bound by the plain meaning of that language. Conyers v. Martial Arts World of Richmond, 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007) (citing Campbell v. Harmon, 271 Va. 590, , 628 S.E.2d 308, (2006) and Virginia Polytechnic Inst. & State Univ. v. Interactive Return Serv., 271 Va. 304, 309, 626 S.E.2d 436, 438 (2006)). Furthermore, we must give effect to the legislature s intention as expressed by the language used unless a literal interpretation of the language would result in a manifest absurdity. Conyers, 273 Va. at 104; 639 S.E.2d at 178. Likewise, the provisions of (G) are simple and direct: [r]ecords kept by law-enforcement agencies as required by shall be subject to the provisions of this chapter. Clearly, the personnel records exclusion in (1) constitutes one of those provisions. As such, the plain meaning of (G) must be that personnel records kept by agencies pursuant to shall be subject not only to the disclosure provisions of FOIA, but also to its exclusion and exemption provisions. 10

17 This meaning becomes even clearer on examining the Act s basic framework for handling public records and exclusions. FOIA defines public records broadly in , then requires in (A) that [e]xcept as otherwise specifically provided by law, all public records shall be open to inspection and copying... (Emphasis added). Next, the Act provides specific exclusions and exemptions in sections such as But, importantly, the records excluded by these sections still constitute public records. They simply are excluded from public disclosure. Likewise, personnel records of law-enforcement officers, as defined by , are subject to the general disclosure provisions of FOIA through (G). But, at the same time, they are excluded as personnel records under (1) because subsection G makes these records subject to the provisions of this chapter. No conflict exists. And since no conflict exists, the conflict resolution clause in (I) cannot be invoked to trump (1). This Court need not go down the rabbit hole of speculating about legislative intent. Its intent is clear in the words of the statute. Moreover, under the well-known principle of in pari materia, this Court must construe (G) and (1) together and give them both effect, even though they do not refer expressly to each other. Alston v. Commonwealth, 11

18 274 Va. 759, 769, 652 S.E.2d 456, (2007) (applying in pari materia construction to and , two sentencing statutes that do not reference each other); Prillaman v. Commonwealth, 199 Va. 401, 406, 100 S.E.2d 4, 7-8 (1957) (quoting with approval [s]tatutes which are not inconsistent with one another, and which relate to the same subject matter, are in pari materia, and should be construed together; and effect should be given to them all, although they contain no reference to one another, and were passed at different times ). The only way to give full effect to both statutes is to hold that (G) does not create a tacit but gaping exception to the general exclusion for personnel records in (1). Accordingly, the plain language and meaning of (G) and (1), read pursuant to this Court s canons of statutory construction, support the Police Chief s interpretation that law-enforcement personnel records receive protection from public disclosure. b. The Exclusions in (F)(11) and (G) Do Not Mean that the General Assembly Intended to Treat Law- Enforcement Personnel Records Differently from Other Personnel Records Contrary to Ewing s second argument, the existence of other exclusions in (F) and (G) has no bearing on whether the personnel record exclusion applies to law-enforcement officers. Ewing 12

19 attaches great significance to minor movements of subsection language over the long history of But a quick look at this statute confirms that its structural design is to address, one at a time, which specific lawenforcement records must be disclosed, may be disclosed, or may be excluded. Section may freely, and without prejudice to the personnel record exemption, exclude in subsection (F)(11) records of background investigations of applicants, administrative investigations relating to allegations of wrongdoing by law-enforcement employees, and other administrative investigations made confidential by law. The overlap between these records and personnel records makes no difference. Just as need not reference criminal history record information, as defined by Virginia Code and , to ensure that those records remain protected, so, also, the statute need not reference personnel records. Ewing cannot demonstrate that the other provisions in amount to a clear intent to except lawenforcement personnel records from the general (1) exclusion. 3. The Plain Meaning Construction Urged by the Police Chief Avoids the Absurd Result Reached by Ewing s Reading The Police Chief s interpretation of the Act leads to a reasonable, predictable result: law-enforcement personnel records receive the same protection as any other public employees personnel records under

20 3705.1(1). Ewing s reading leads to pure absurdity. This Court has stressed repeatedly that [t]he plain, obvious, and rational meaning of a statute is to be preferred over any curious, narrow, or strained construction, and a statute should never be construed in a way that leads to absurd results. Bank of the Commonwealth v. Hudspeth, 282 Va. 216, 221, 714 S.E.2d 566, 569 (2011) (quoting Meeks v. Commonwealth, 274 Va. 798, 802, 651 S.E.2d 637, 639 (2007)). Ewing does not even try to suggest rational grounds for the General Assembly to discriminate against law-enforcement officers with respect to their personnel records. To be sure, the heightened need to protect lawenforcement officers from intrusions into their personnel records is all too obvious. The fact is, Ewing s construction of (G) would even force agencies to disclose an officer s personnel records to a criminal defendant during an active criminal case due to the conflict resolution clause in (I). At the same time, no other FOIA exclusion or exemption would enable the agency to withhold the officer s full personnel records. This absurd and unjust result can be avoided by rejecting Ewing s strained construction of FOIA. The Police Chief s construction of (G) and (1) also effects the public policy of FOIA stated in (B): 14

21 The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law. This chapter shall not be construed to discourage the free discussion by government officials or employees of public matters with the citizens of the Commonwealth. (Emphasis added). As an exclusion to FOIA, (1) must be narrowly construed. But, as the next phrase in (B) makes clear, that means no record shall be withheld unless specifically made exempt pursuant to this chapter... Section (1) specifically excludes personnel records. The legislature did not need to repeat this exclusion in to ensure that law-enforcement personnel records were excluded. Its intent, fully expressed in (1), should have been followed by the circuit court to deny Ewing s writ for mandamus. B. The Police Chief Did Not Waive Any Necessary Exclusions for Officer Shelton s Records Kept Pursuant to , Nor Did He Waive the (1) Exclusion for Personnel Records Ewing argues on appeal that the Police Chief invoked an exemption only for the personnel records component of Officer Shelton s records, and thus waived partially applicable exemptions for other 15

22 records found in (F)(11) and (G). Brief in Opposition to Petition for Appeal at This argument misreads the clear language of The only categories of requested documents that could conceivably apply to Officer Shelton are personnel records. The personnel records definition covers not only specified types of personal data, but also other pertinent personal information. This category includes the disciplinary and administrative investigation documents Ewing seeks about potential complaints or concerns raised about Officer Ryan Shelton s behavior or conduct or investigations into Officer Ryan Shelton s behavior or conduct. On the other hand, arrest records, noncriminal incidents reports, investigative reports and reportable incidents records plainly refer to records compiled by lawenforcement agencies about the public not their employees. Investigative records, in particular, refer to criminal investigation documents: reports of any systematic inquiries or examinations into criminal or suspected criminal acts... There are no other records for Officer Shelton that the Police Chief failed to cover in his response. As such, this Court need not entertain Ewing s argument that the Police Chief should have, but failed, to 16

23 invoke exemptions to protect these purported other categories of records. To the extent Ewing argues on appeal, as he did below, that the Police Chief waived the personnel record exclusion under (1) by failing to invoke it correctly, he finds no support in the record or the law. Ewing s own evidence shows that the Police Chief invoked the (1) exclusion in a timely manner, leaving the sole argument that the Police Chief failed to identify with reasonable particularity the volume and subject matter of withheld records pursuant to (B)(1). This basis is insufficient. Ewing admitted, through his Verified Petition for Writ of Mandamus Pursuant to Va. Code (A) Virginia FOIA, the following evidence of the Police Chief s procedural compliance: (1) the Police Chief s initial December 21, 2011 response identifying the withheld personnel records as the entire personnel record and citing as the basis for exemption; (2) the December 29, 2011 letter from counsel for the Police Chief further clarifying those records as a personnel file containing approximately 100 pages, excluding insurance information; and (3) counsel for Ewing s letter of December 22, 2011 acknowledging that the December 21, 2011 response was timely. (JA 19, 28, 26). Thus, Ewing s 17

24 waiver argument for this exclusion rests entirely on the Police Chief s imprecision in describing the volume of the withheld personnel records. This is too thin a reed to support the complete waiver of an otherwise clearly established exclusion, and should be rejected by this Court. Even if this Court accepts Ewing s argument that the Order rests on waiver, rather than the applicability of the personnel records exemption in (1), the law does not support the finding of a waiver. First, the language of the Act contains no hint of the punitive waiver theory urged by Ewing. Section (E) does provide that [a]ny failure by a public body to follow the procedures established by this chapter shall be presumed to be a violation of this chapter. However, this simply means that the reviewing court must consider any violations to be bona fide violations subject to the imposition of fees and penalties under This section establishes a violation, not a litigant s ability to claim the application of an exclusion. Second, this Court correctly held in Lawrence v. Jenkins, 258 Va. 598, 603, 521 S.E.2d 523, 525 (1999), that the final analysis in FOIA mandamus actions rests on whether the requesting party has been denied clearly established rights and privileges under FOIA. In Lawrence, Jenkins had received all the material he would otherwise have been 18

25 entitled to receive under FOIA just not a timely citation to the correct exemption. This Court found that this procedural violation did not bring about a denial of any rights or privileges afforded to Jenkins under the provisions of FOIA and did not operate as a waiver of Lawrence s otherwise valid exercise of an applicable exemption. Lawrence, 258 Va. at 603; 521 S.E.2d at 525. While the Police Chief did not provide any of the personnel records requested, Ewing was never entitled to receive them. So, also, any minor violation purportedly committed by the Police Chief falls short of denying Ewing clearly established rights and privileges under FOIA. C. The Circuit Court Erred in Mandating the Police Chief to Comply with Ewing s Request Under (C) Because it Was Not Reasonably Specific In granting Ewing s requests for adult arrestee information under (C), the circuit court exceeded the bounds of the Act s public record requirements. As this Court well knows, (D) provides that no public body shall be required to create a new record if the record does not already exist. But the Order goes one step farther. It mandates not only the identity and status of all adult individuals arrested or charged by Officer Ryan Shelton within a set period, but also the identity and status of all adult individuals arrested or charged by another officer based on 19

26 information provided or incidents witnessed by Officer Shelton. (JA 114) (Emphasis added). No law-enforcement agency could respond to this portion of the Order without conducting an investigation. This investigation would need to focus not only on Officer Shelton, but also every other officer to whom he provided information leading to an arrest. The agency would then need to evaluate whether other arrests and charges not made by Officer Shelton or even communicated by him nevertheless resulted from incidents witnessed by Officer Shelton. FOIA s public disclosure provisions do not, of course, require such steps. Conducting research of this kind would drain the already tight resources of law-enforcement agencies and divert their efforts from their primary law-enforcement duties. Simply put, Ewing s requests should not have been granted by the circuit court because they failed to identify requested records with reasonable specificity as required by (B). Here, too, the circuit court exceeded the bounds of FOIA s mandates under and (C). Mandamus should not have been granted, and the circuit court s Order should be reversed. VII. CONCLUSION Manifestly, the Police Chief did not deny Ewing any clearly established rights and privileges under FOIA entitling him to a writ of 20

27 mandamus. Lawrence, 258 Va. at 603; 521 S.E.2d at 525. Judge Curran misinterpreted the clear exclusion for personnel records under Virginia Code (1), disregarded the plain meaning of the Act, and erred in holding that Ewing had substantially prevailed in his mandamus action. For these and all of the foregoing reasons explained in this Brief, the Amici Curiae in support of the Police Chief respectfully submit to this Court that the Order of the Circuit Court should be reversed. LOCAL GOVERNMENT ATTORNEYS OF VIRGINIA, INC., VIRGINIA MUNICIPAL LEAGUE, VIRGINIA ASSOCIATION OF COUNTIES, VIRGINIA ASSOCIATION OF CHIEFS OF POLICE, AND VIRGINIA SHERIFFS ASSOCIATION By Counsel Annie Kim, Esq. (VSB #44243) 580 Massie Road Charlottesville, Virginia Phone: (434) Fax: (434) Counsel for the Amici Curiae: Local Government Attorneys of Virginia, Inc. Virginia Municipal League Virginia Association of Counties Virginia Association of Chiefs of Police Virginia Sheriffs Association 21

28 CERTIFICATE OF SERVICE Pursuant to Rule 5:26(e) of the Rules of the Supreme Court of Virginia, I certify on this October 17, 2012, that fifteen bound copies and one electronic copy on CD, of the foregoing Brief Amici Curiae were filed with the Clerk of the Supreme Court of Virginia by hand delivery, and that three bound copies and one electronic copy of the same, were served via, UPS Ground Transportation, to: Leo P. Rogers, Esq. County Attorney Lola Rodriguez Perkins, Esq. Assistant County Attorney County of James City, Virginia 101-D Mounts Bay Road Post Office Box 8784 Williamsburg, Virginia Counsel for Appellants Emmett H. Harmon, Chief of the James City County Police Department, and the James City County Police Department and Thomas H. Roberts, Esq. Andrew T. Bodoh, Esq. Thomas H. Roberts & Associates, P.C. 105 S 1 st Street Richmond, Virginia Counsel for Appellee Adam L. Ewing Annie Kim, Esq. 22