A federal drug agent who accidentally shot himself in his leg is seeking to revive his privacy case against the agency for allegedly releasing to the public a video of the shooting, intentionally embarrassing him.
Ward Meythaler, the lawyer for the agent, Lee Paige, today tried to convince a federal appeals court in Washington that a video clip of the April 2004 shooting was part of a federally protected system of records at the Drug Enforcement Administration. Paige attended today's hearing in the U.S. Court of Appeals for the D.C. Circuit.
Paige shot himself at an event at a community center in Orlando, where he is stationed with the DEA. He was participating in a lecture series, speaking to children and parents, when his gun discharged. Seconds before the shooting, Paige said he was the only person in the room “professional enough, that I know of, to carry this Glock 40.”
Paige sued the DEA in Washington federal district court, alleging that leaking the video violated his privacy rights. A roughly four-minute clip of the shooting—cut and copied from a longer tape of the lecture—made its way online. Click here for the video.
A federal trial judge ruled in December 2010 for the DEA, saying among other things that Paige has failed to identify the leaker and cannot therefore show that any person acted willfully and intentionally. The identity of the leaker remains unknown despite a two-year DEA internal investigation.
The judge, Jack Shanstrom, also noted the shooting occurred in a public forum while Paige was on duty. Paige, once an undercover agent, said the publicity the video received prohibits him from working undercover.
The U.S. Court of Appeals for the D.C. Circuit today spent much of its time examining whether the four-minute video of the shooting was ever a part of the DEA’s “system of records.”
That’s a threshold question for the appeals court. To convince the court that he is entitled to protection under federal privacy laws, Paige must show that the video clip was a part of the DEA's record system.
The four-minute clip was cut from an hour-long video of Paige’s speaking engagement a the community center. The longer copy of the video was in the DEA’s records systems, the Justice Department’s Helen Gilbert said in court today.
D.C. Circuit Judge David Tatel compared the situation in Paige’s case to a hypothetical scenario about documents. A document in a records system that quotes from another source doesn’t necessarily mean the other document is a part of the records file, the judge said.
Gilbert argued today that there’s no evidence the four-minute clip was ever in the records system at the DEA. Judge Janice Rogers Brown seemed troubled. “Why should that protect you?” she asked.
Brown didn’t appear enthusiastic of the notion that as long as a person keeps a particular piece of evidence outside of a records file then the agency or person is absolved from wrongdoing.
Meythaler of Tampa's Merkle, Magri & Meythaler said today the DEA created a "system of records" as soon as it began investigating the shooting. A number was not assigned to the file until days after the shooting, however. Meythaler said the delayed assignment of a case number does not mean the evidence collected was never a part of the agency's records system.
Meythaler also disputed the suggestion that Paige must identify the source of the leak to allow his suit to proceed. "There's no such requirement in the statute," he told the panel judges.
The person who leaked the video, Meythaler said, would have known that DEA rules prohibited disclosure of the evidence. "Those rules are well known to everyone in the DEA," he said.
The appeals court did not immediately rule today.