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Update 10:33 a.m.
SARATOGA SPRINGS – A temporary restraining order related to city officials discussing and accessing information related to the Nov. 20 shooting in Saratoga Springs has been dropped, according to Public Safety Commissioner James Montigino and the judge’s law clerk Thursday morning.
However, it was not immediately clear if that was due to the filing of the Article 78 by Saratoga County District Attorney Karen Heggen Wednesday.
A press conference on the issue is expected from the city later Thursday morning, Public Safety Commissioner James Montigino said.
Montigino did not have a formal explanation from the district attorney’s office for the discontinuance and suggested there wouldn’t be.
“The reality is they don’t want a judge to actually make a ruling that tells them they were dead wrong in trying to curtail the First Amendment rights of 400 city employees,” Montigino said.
According to the Public Safety Commissioner and the judges law clerk the TRO has been dropped. It’s unclear if it was due to the filing of the Article 78 by DA Heggen yesterday. I’m told the city will hold a press conference later today. https://t.co/fOZgN8QSzP
— Shenandoah Briere (@ByBriere) December 22, 2022
Our original story:
SARATOGA SPRINGS – Saratoga County District Attorney Karen Heggen has filed an Article 78 proceeding against Saratoga Springs Mayor Ron Kim and Public Safety Commissioner James Montigino regarding the dissemination of information following a shooting incident on Broadway last month, she announced late Wednesday.
An Article 78 proceeding asks the state courts to review decisions or actions made by state officials or governing bodies.
“This filing seeks an order from the Court to prohibit them from accessing and disseminating information and evidence regarding the November 20th incident for a period of 60 days or until the Saratoga County grand jury reviews the incident,” she said in a statement.
The announcement comes less than a day before outside counsels for the district attorney and the city were set to go before state Supreme Court Judge Dianne Freestone in Saratoga County over a temporary restraining order Heggen requested preventing city employees from speaking about the Nov. 20 shooting. The order was granted by Freestone on Nov. 23, just days after city officials hosted a press conference to discuss the shooting and released police body camera footage of the incident that left two injured.
Heggen has said in a Dec. 2 letter to the city that the gag order was needed to bar public officials from further discussing the case after Kim and Montagnino “offered speculation and inaccuracies to the media while outside City Hall crucial evidence was still being gathered on Broadway by police.”
The most recent move by Heggen comes a day after outside counsel representing her in the case reached out to the city Tuesday to try and resolve the matter before it was to be heard in court.
The city was requested to respond by noon Wednesday on whether they agreed to Heggen’s proposal that the city would follow Policy 324, which states how the city police department will handle media relations, according to a letter sent Tuesday by Karl Sleight, the outside counsel representing Heggen to city attorney Anthony Izzo and James Knox, the outside counsel representing the city.
“Simply put, the SSPD (Saratoga Springs Police Department) Policy governs all the issues that are of concern to the District Attorney and that resulted in the TRO (temporary restraining order) request to Justice Freestone,” Sleight said in the letter.
Under Policy 324 for the police department all media requests would be filtered through the public information officer or supervisor if the public information officer was unavailable.
The policy also noted that those responding to the media should consider the following:
- No comments or information should be released to the media without prior approval by the public information officer or supervisor.
- When there are multiple agencies or departments involved in an incident then there should be a coordinated effort to release information to the media that has been authorized by representatives of each involved agency
- That no one in the department is allowed to make any comments to the media on incidents not involving the Saratoga Spring Police Department without prior approval from the chief of police. In those cases the person must direct the media outlet to the appropriate agency.
If the city agreed to Heggen’s request then she would have agreed to request the court order be discontinued, according to the letter from her attorney.
Heggen said the city rejected her proposal.
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“I have repeatedly attempted to engage the representatives of the City of Saratoga Springs in an effort to reach a mutual understanding regarding the issues surrounding the dissemination of evidentiary videos and information regarding the officer-involved shooting on November 20, 2022,” she said.
Both Kim and Montagnino said they were unaware of the filing or statement made by Heggen.
“Tomorrow (Thursday) is the first time that a judge will hear our side and we had fully briefed this prior to DA Heggen having any sort desire to speak to us about this issue in a substantive way because basically her original invitation was simply ‘I’m going to keep the gag order but you can talk to me,’” Kim said. “So, this is regrettable, she’s escalating this but we do believe in the end the First Amendment rights of our constituents and city officials will be vindicated.”
Kim said the city was unable to have discussions with Heggen because it needed to secure outside counsel first which is a “difficult process.”
At a special city council meeting Dec. 16 the city hired Knox, of E. Stewart Jones Hacker Murphy, for $400 per hour to handle the matter and file responses the judge had requested on the issue after the city attorney indicated he did not have enough background in handling these sorts of court matters.
“Until we had retained an attorney who could consult with us we had delayed moving forward with any kind of letter or discussion because we wanted attorneys involved,” Kim said. “When we did get that basically they advised us to file our briefs, do what the court has asked us to do, which is what we’ve done and then if the DA wants to meet us great we’re happy to do that. We communicated that to her.”
Kim also said Policy 324 only relates to the police department and not public officials.
“There’s nothing in there that we violated when we had a news conference to make sure that our public was safe after this awful incident in our city,” Kim said.
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Montagnino said Heggen violated the Constitutional rights of city employees when she originally got the gag order, which he alleges she got without a legal basis and did not properly notify them of.
“Now, after the City filed its answering papers and is prepared for the Judge’s decision, the DA says, ‘Never mind. I’m withdrawing the gag order,’ then in virtually the same breath, she announces publicly that she is going to file yet another lawsuit – this time through an outside law firm,” Montagnino said in a statement.
He said Heggen is abusing the legal system.
“More than a month has passed since the shooting incident on Broadway,” Montagnino said. “Despite the fact that the crime was captured by multiple high-definition cameras, not a single arrest has been made and not a single charge has been filed. It’s time for the DA to end the partisan political sideshow and either do her job or ask that a special prosecutor be appointed to do it for her.”
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