Analyzing possible implications of release of Joe Mixon assault video
If University of Oklahoma star running back Joe Mixon thought his violent altercation with a female classmate at Pickleman’s Gourmet Café in Norman, Okla. on July 25, 2014, was resolved and forgotten, the Oklahoma Supreme Court on Wednesday delivered him unwelcome news. The Court ruled that a surveillance videotape of the altercation is a public record under Oklahoma law. As a consequence, the Oklahoma Association of Broadcasters can petition a court to order that the video be released and shared with the public.
Over the last two years, local police and the District Attorney’s Office for the 21st Judicial District have steadfastly refused to release the video. Among other reasons for their refusal, law enforcement officials maintain that the video is not a public record under Oklahoma law and thus there is no legal obligation to turn it over. Under Oklahoma law, public officials who take custody of videos and other materials as part of their official business usually must make those materials available upon request. For their part, Oklahoma law enforcement normally must make videos available when those videos relate to facts concerning an arrest.
Mixon was never arrested. Therein lies the core of a legal debate that has worked its way up Oklahoma’s courts.
A graphic video and its aftermath
The dispute centers on a soundless surveillance video of approximately three minutes in length. The video reportedly shows the 6’1”, 225-pound Mixon, who was celebrating his 18th birthday, and University of Oklahoma student Amelia Rae Molitor, then 20 years old, engaged in heated early-morning argument that takes place inside and outside the restaurant. The argument escalates and becomes violent, with both landing hits on the other. According to a police report depiction of the video, Molitor, who is much shorter and smaller than Mixon, slapped Mixon around his face. In response, Mixon “struck [Molitor] on the left side of her face with his closed right fist.” Mixon’s punch caused Molitor to hit a table and then the ground. Published reports indicate that Monitor suffered a fractured jaw, fractured cheekbone and other serious injuries to her face.
Mixon, who reportedly left the scene before police arrived, was not arrested. A few weeks later, however, a police officer filed an affidavit asserting that probable cause existed for Mixon to be arrested. Mixon would soon be charged with misdemeanor assault and arraigned in court. The distinction between Mixon being arrested and being charged and arraigned may sound like splitting hairs, but it was crucial in terms of the state’s open records law. Even though Mixon appeared in court to face a charge, was processed by law enforcement and remained in custody until the posting of a bond, he was never “taken” into custody in an active sense—that is, he was never arrested. Instead, he surrendered on his own and appeared in court, with his attorney, to face a charge. On Oct. 30, 2014, Mixon voluntarily entered into an “Alford plea”—where a defendant pleads guilty in order to resolve a matter while simultaneously maintaining his innocence—to the misdemeanor charge.
As part of Mixon’s deal with prosecutors, he received a deferred sentence (no jail time and can be expunged from one’s record), community service and mandatory counseling. The University of Oklahoma suspended Mixon, a five-star recruit from Oakley, Calif., for one year.
Mixon returned to play for the Sooners in the 2015 season and rushed for 753 yards and seven touchdowns. He and sophomore running back Samaje Perine comprise one of the most dynamic backfields in college football.
Media demands a copy of the surveillance video
Open records laws, which vary significantly by state, generally enable the public to learn of the conduct of public officials, including law enforcement officers. The basic idea behind these laws is that the public should be able to scrutinize those who represent them and scrutinize those who are entrusted with public resources and accompanying responsibilities. Journalists often use open records laws, along with arguments grounded in the First Amendment, to obtain materials from public officials that those officials would prefer not to share.
It is clear that law enforcement did not wish to share the surveillance video of Mixon. Yet given that the video was of obvious interest to the public—it featured a high-profile, superstar football recruit who was allegedly engaged in violent conduct—various media companies filed requests for a copy of the video. Law enforcement refused, stressing, among other points, that Mixon had not been arrested and thus the video was not subject to public disclosure under Oklahoma law. Further, law enforcement insisted, Mixon voluntarily worked out a plea deal, which cut against the idea that there was an arrest or something akin to it. Media were invited watch the video from the police headquarters and about 40 journalists did so. These journalists, however, were prohibited from recording or taking photos of the video.
Dissatisfied, the Oklahoma Association of Broadcasters went to court, insisting that the absence of a formal arrest of Mixon should not shield a newsworthy video from public view. A restricted viewing of the video—from the police headquarters and for some journalists but not the public at large—also seemed inapposite with public access to an open record. District court and appellate court judges disagreed, reasoning that because Mixon was never arrested, the video could not have depicted an arrest or any facts concerning an arrest. Along those lines, one judge emphasized that an arrest requires the “taking of a person into custody to be held to answer for a public offense.” While Mixon appeared in court to answer for a public offense, he did so as part of a negotiated process that the judges viewed as a surrender rather than an arrest. Therefore, regardless of the video’s newsworthy quality, it fell outside the scope of the open records law.
The broadcasters appealed to the Oklahoma Supreme Court and argued, among other points, that Mixon’s voluntary submission to the custody of a court after an affidavit of probable cause was tantamount to an arrest. On Wednesday, the Supreme Court agreed. It is now only a matter of time before the video becomes public and is undoubtedly shared on social media.
Mixon’s future in the NFL could be impacted
From a criminal law perspective, the release of the surveillance video will not impact Mixon in any way. His Alford plea and apparent completion of the terms of his punishment have resolved the matter.
From a civil law perspective, however, the video’s disclosure could impact Mixon. If Molitor has sued or plans to sue Mixon in a personal injury lawsuit, the video might influence potential jurors. A review of Oklahoma court records does not reveal any related lawsuit, but under Oklahoma law, Molitor has two years from the date of the injury—in other words, until July 25, 2016—to sue. At least in theory, Moliter might have greater leverage in settlement talks with Mixon if both sides know the video could inflame potential jurors. It is possible, of course, that Molitor and Mixon have already reached a confidential out-of-court settlement, in which case the video’s disclosure would not have such an impact.
The real worry for Mixon from the video’s release is not a legal one but a reputational one. Mixon graduated from high school in 2014, meaning under the NFL’s eligibility rule, he could declare himself eligible for the ’17 NFL draft. Having just completed his redshirt freshman year, Mixon could also wait until the ’18 draft or the ’19 draft. Whenever he opts to enter the draft, NFL teams will certainly evaluate Mixon’s likelihood to succeed as an NFL running back. They will also closely scrutinize his character and judgment. Mixon will need to convince NFL teams that the misconduct depicted on a video from ’14 was a mistake by someone who had just turned 18, and that he has learned from that mistake and will never repeat it.
Even if Mixon proves convincing, NFL teams—and companies that would otherwise be interested in discussing endorsement opportunities with Mixon—will remain cautious. Consider that despite Ray Rice’s determined efforts to restore his image in the aftermath of the video of him hitting and dragging his then fiancée, Janay Palmer (now Janay Palmer Rice), the now 29-year-old has yet to catch on with an NFL team. Rice’s career may be over. While the Rice and Mixon videos are different in numerous ways, a video seen by the public can irreversibly alter the public’s perception of someone. It remains to be seen what impact a public viewing of Mixon’s video will have on his future.
Michael McCann is a legal analyst and writer for Sports Illustrated. He is also a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He also created and teaches the Deflategate undergraduate course at UNH, serves as the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law and is on the faculty of the Oregon Law Summer Sports Institute.