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Jim Kenyon: Canaan police transparency case reaches NH Supreme Court

  • Canaan Police officer Sam Provenza, center, and Sgt. Ryan Porter investigate a single-motorcycle crash that injured its driver and passenger in West Canaan, N.H., on June 17, 2012. (Valley News - Theophil Syslo) Copyright Valley News. May not be reprinted or used online without permission. Send requests to permission@vnews.com. Theophil Syslo

Valley News Columnist
Published: 10/20/2021 9:44:51 PM
Modified: 10/20/2021 9:44:58 PM

The fight for greater transparency and accountability in police matters reached the New Hampshire Supreme Court on Wednesday.

The five justices heard oral arguments in Provenza v. Town of Canaan, a case that could determine whether the public under the state’s right-to-know law can gain access to investigative reports of alleged police misconduct.

Provenza, a former Canaan police officer who is now a trooper with New Hampshire State Police, is trying to block the town from releasing an outside consultant’s report that delved into his conduct during a 2017 traffic stop.

After Grafton Superior Court Judge Peter Bornstein denied his request last December to keep the report under wraps, Provenza appealed to the state’s highest court.

In his ruling, Bornstein referred to another 2020 New Hampshire public records case in which the judge wrote “bad things happen in the dark when the ultimate watchdogs of accountability — i.e. the voters and taxpayers — are viewed as alien rather than integral to the process of policing the police.”

At Wednesday’s hearing, Justice James Bassett pointed out that the investigation, which cost $6,000, was paid for with taxpayers’ money. Bassett, who has served on the court for nearly a decade, asked, “Why aren’t taxpayers entitled to know what the results are?”

To my way of thinking, that’s been a vital issue all along. The public has a right to see what it’s getting for its money.

In 2018, the Canaan Selectboard hired Municipal Resources Inc., better known as MRI, of Meredith, N.H., to investigate a roadside encounter between Provenza and resident Crystal Eastman on Nov. 30, 2017, which I wrote about shortly thereafter.

Eastman had heard that her daughter’s school bus driver was prone to speeding. Wanting to check for herself, Eastman followed the bus, with her daughter aboard, during its afternoon run.

Responding to a call from the bus company that someone was following its bus, Provenza caught up with Eastman while she was parked on Grafton Turnpike Road.

Due to a lack of video evidence, what happened next is up for debate. Canaan officials have maintained from the beginning that the dashboard video camera in Provenza’s cruiser wasn’t working that day.

According to Eastman, Provenza became angry when she didn’t hand over her driver’s license and registration as fast as he would have liked. When she didn’t comply with his order to exit her SUV, Provenza grabbed her ponytail and forced her to the ground, where she was handcuffed, Eastman said.

Provenza has denied using excessive force.

All the public knows for sure is that the 5-foot-2, 115-pound Eastman left the scene in an ambulance. She had suffered a ruptured ACL in her left knee that required two surgeries. The injury, which still hinders her mobility, forced Eastman to give up her job as a heavy equipment operator at the New Hampshire Department of Transportation. (She now works at a manufacturing plant.)

For reasons I can’t quite fathom — unless Canaan police and the town’s prosecutor were trying to justify Provenza’s conduct — Eastman was charged with two misdemeanors. A Lebanon Circuit Court judge acquitted her of resisting arrest, but found her guilty of disobeying an officer. In an unusual move, the judge didn’t require Eastman, who had no criminal record, to pay a fine.

In September 2020, Eastman, who now goes by her married last name of Wright, and her husband, Doug, filed a federal civil suit against the town, alleging Provenza used excessive force.

After learning that MRI had completed its report, I asked the town for a copy under the right-to-know law. But Canaan own officials, claiming the report was a personnel matter, wouldn’t make it public.

In May 2020 — only days before the murder of George Floyd by police in Minneapolis — the New Hampshire Supreme Court issued two rulings that seemed to open the door to some police records. That led me to request the document for a second time. Again, Canaan officials refused.

The town also let Provenza know the Valley News was seeking the report. Almost immediately, Provenza filed his lawsuit against the town in Superior Court.

It was a lawsuit the town welcomed. When the case became a court matter, Canaan officials could say the decision to release the report was permanently out of their hands. They couldn’t be blamed for making a wrong decision because the decision was no longer theirs to make.

The town “more or less invited (Provenza) to file a lawsuit,” Henry Klementowicz, a staff attorney with the the American Civil Liberties Union of New Hampshire, told justices at Wednesday’s 30-minute hearing.

To prevent Provenza and Canaan officials from keeping the report permanently out of the public domain, the Valley News, had asked in 2020 to join the lawsuit.

The nonprofit ACLU, which has a long history of arguing for greater government transparency, is representing the paper at no cost.

The case has never been about just the Canaan roadside encounter, though. New Hampshire cops — and the powerful unions behind them that hold a lot of sway in Concord — like not having to answer to the public. And they want to keep it that way.

Concord attorney John Krupski, who does legal work for the New Hampshire State Police troopers’ union, is representing Provenza.

On Wednesday, Krupski argued that making investigatory reports such as this public information could “incentivize people to make complaints (against police officers) that are not valid or true.”

Although the MRI report is not public, I think it’s safe to say from what I heard Wednesday and during earlier court proceedings, the investigation cleared Provenza of any wrongdoing.

Krupski said as much when he argued that New Hampshire law requires investigative reports of “unsubstantiated and unfounded” allegations against police officers remain confidential.

“Police officers are the targets of people who become upset and annoyed that they’ve been arrested,” Krupski said.

Justice Anna Barbara Hantz Marconi, who was nominated to the court by Republican Gov. Chris Sununu in 2017, seemed the most sympathetic to Krupski’s argument. Even if a report exonerates an officer, it may still include “random comments that could be defamatory and damaging to an officer’s reputation,” she said.

I’d argue — and the ACLU did so on the paper’s behalf — that just because a taxpayer-funded investigation doesn’t find any wrongdoing it shouldn’t be hidden from the public.

The public’s “interest is extremely high” in cases involving police conduct, Klementowicz told justices. “We’re talking about a person with a badge and a gun.”

In his questioning of attorneys, Chief Justice Gordon MacDonald, who joined the court in March, zeroed in on the need for the public to see the results of an investigation, which in this case was conducted by a former New Hampshire state trooper, to make informed decisions.

“How is the public to know (whether) the town of Canaan took the allegation seriously or not” without seeing the report? asked MacDonald, a Hanover High School graduate whose father was a Dartmouth professor.

It will probably take a few months for the court to announce its ruling.

In the meantime, police can continue to operate without having to worry about increased public oversight.

Jim Kenyon can be reached at jkenyon@vnews.com.




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