Seattle Judge Rules Against the Press
by Jennifer Karchmer
Seattle Times and TV Stations Must Hand Over Footage to Police
Despite Washington state’s reporter shield law that protects journalists from having to relinquish notes, documents or sources in most cases, freedom of the press was dealt a disturbing blow on July 23 when a Seattle judge ordered The Seattle Times and four Seattle TV stations to provide police with video and photos to help in a criminal investigation.
On July 23 at 9:07 a.m., I attended via phone conference a public hearing presided over by King County Superior Court Judge Nelson Lee. The case pitted the Seattle Police Department and the city of Seattle against The Seattle Times, KIRO, KING-5, KOMO and KCPQ Fox News.
A month prior, Seattle police was ordering the news outlets to give them digital photos and videos taken during the Memorial Day weekend demonstrations and protests that erupted over the killing of George Floyd. Police were investigating car fires along with firearms that were stolen from a police vehicle, and were seeking the media’s help, so they sent a subpoena, a legal way of forcing the press to supply documents.
By the end of the two-hour hearing, Judge Lee had sided with Seattle police, ordering the news outlets to give up video and images to aid in the investigation. According to the subpoena, Seattle police wanted all raw video footage and still photographs that were taken on Saturday, May 30, between 3:30 p.m. and 5 p.m. from the locations of Olive Street to Pike Street and also from 6th Avenue to 4th Avenue in Seattle. During that time, suspects set police cars on fire. Separately, a suspect or suspects stole firearms from a police car.
Hearings Conducted Via Phone
The July 23 hearing followed an earlier hearing held on July 2 that didn’t produce enough information for the judge to make a decision. Due to Covid-19, the hearings were conducted via phone with attendees calling into a conference line. The proceeding was open to the public, and, at the end of the session, Judge Lee said there were about a dozen callers in attendance (it’s unclear whether this number included the judge and litigators or only public attendees).
In attendance and speaking were:
• Judge Nelson Lee, King County Superior Court Judge.
• Madeline Lamo, a representative with the Reporters Committee for Freedom of the Press who read a statement called an amicus brief.
• Eric Stahl, an attorney with Davis Wright Tremaine representing The Seattle Times and the Seattle TV stations.
• Brian Esler, an attorney with Miller Nash Graham & Dunn representing the Seattle Police Dept.
• Gary Ernsdorff, Senior Deputy Prosecuting Attorney for the King County Prosecutor’s Office.
• Seattle Police Dept. Detective Michael Magan.
Stahl requested that the judge quash (throw out) the subpoena, mainly arguing that the media do not work for law enforcement and shouldn’t be compelled to provide materials like video footage or photographs. Two days before the hearing, I had an email exchange with The Seattle Times Executive Editor Michele Matassa Flores on this topic.
“The media exist in large part to hold governments, including law enforcement agencies, accountable to the public,” she wrote on July 21. “It’s important to our credibility and effectiveness to retain our independence from those we cover. Now more than ever, because of pervasive divisiveness in our country, we cannot be seen by the public as serving as a branch of law enforcement.”
During the hearing, Esler, representing the police department, had the burden of convincing the judge that the subpoena was enforceable, that the news outlets were not, in this instance, covered by Washington state shield law, known as RCW 5.68.010. Esler needed to show:
• that there are reasonable grounds to believe a crime has occurred
• that the material being requested (video and photo footage) “is highly material and relevant”
• that the material being requested is “critical or necessary”
• that there is “a compelling public interest in the disclosure”
• that the“party seeking such news or information has exhausted all reasonable and available means to obtain it from alternative sources”
In his testimony, Detective Magan laid out the steps he and his police team had taken in the investigation, including knocking on doors of downtown businesses, requesting surveillance video, talking to the large department stores in the area, including Nordstrom, the Gap, and Old Navy. In one case, he was able to obtain footage from a downtown Starbucks; however, the quality of video, in black and white, was “horrible,” Magan said, deeming those clips unusable in terms of clearly identifying a suspect.
An amateur videographer had provided some usable footage, but that was only one person, Magan explained. Apparently, the Seattle police have an evidence portal where the public can post videos anonymously. Out of more than 27,000 uploads, only about 200 clips were of even minimal use — much of it was pornographic, according to Magan. Police were able to get two suspects stemming from the thefts and the arson and partially identified others based on other images, but were at a standstill, according to the detective. “I’ve burned shoe leather and doubled back,” Magan testified. “I don’t know what direction to go. I’m sitting in mud spinning my wheels.”
No Public Request
The Seattle Police Department did not hold a press conference, put up printed or digital posters, go to the crime tips website Crimestoppers, or otherwise broadcast a request to the public, according to Magan. In an effort to show that the police had not exhausted all avenues, Stahl questioned Magan why the police department had not appealed directly to the public asking for video before coming to the media.
Magan stated that he was directed by the assistant police chief not to ask the public for help because the investigation involved firearms and was considered a “public safety concern.” During the hearing, I did a Google search and found a post on Seattle.gov entitled, “Police Seek Videos and Photos as They Investigate Destruction, Violence In Downtown Core,” which was published on June 1, 2020. It’s unclear if this link had been broadcast to the public or promoted on social media.
“I believe I have exhausted all of my leads and have nowhere else to go,” Magan continued in his testimony. “I’ve been a police officer for almost 34 years. I’ve never seen a case of this magnitude. I’ve never seen police cars burned, seen firearms stolen from vehicles.”
Defending the press, Stahl resumed his argument saying that forcing the media to hand over footage to aid in a police investigation could, and would, be perceived by the public as assisting law enforcement and in turn stir up even more public distrust with journalists — a profession already suffering from high levels of public contention and physical attacks, from the public at demonstrations and even police.
“We believe there is a substantial public interest in maintaining the independence of the press,” Stahl said.
Judge Lee didn’t buy that argument, saying that distrust and attacks, while damaging and alarming, were not caused by police and were separate issues from the subpoena.
To be clear, the required footage that the outlets would need to produce is from each stations’ “high quality” cameras, not from personal cell phones of individual reporters.
According to a July 23 report in The Seattle Times, the media outlets were deciding whether to appeal the judge’s decision. Another telephonic hearing was scheduled for July 30 at 9 a.m. Portions of this article were previously published at https://medium.com/@journalist_jk.
Sources and Further Reading
• Subpoena The Seattle Times et al.: https://www.documentcloud.org/documents/6979683-Subpoena-Duces-Tecum-Seattle-Times-Company-Et-Al.html
• The Seattle Times Objections to Subpoena: http://www.jenniferkarchmer.com/uploads/9/9/9/1/9991267/2020-06-29_objections_to_subpoena_for_protected_newsgathering_material.pdf
• The Seattle Times’ Danny Gawlowski’s statement: http://www.jenniferkarchmer.com/uploads/9/9/9/1/9991267/2020-06-29_declaration_of_danny_gawlowski_in_support_of_objections_to_subpoena_for_protected_newsgathering_material.pdf
• Reporters Committee for Freedom of the Press, Amicus Brief: https://www.rcfp.org/wp-content/uploads/2020/06/Amicus-Brief-of-Reporters-Committee-for-Freedom-of-the-Press.pdf
• “Seattle Judge Mulls Over Police Subpoena for Journalists’ Videos,” July 15, 2020, Courthouse News Service: https://www.courthousenews.com/seattle-judge-mulls-over-police-subpoena-for-journalists-videos/
• Subpoena for search warrant: https://www.documentcloud.org/documents/6979683-Subpoena-Duces-Tecum-Seattle-Times-Company-Et-Al.html
• “Seattle Times, other media fight Seattle Police Department subpoena for raw footage, photos of protest,” July 3, 2020, The Seattle Times: https://www.seattletimes.com/seattle-news/seattle-times-other-media-fight-seattle-police-department-subpoena-for-raw-footage-photos-of-protest/#comments
• Seattle.gov, “Police Seek Videos and Photos as they Investigate Destruction, Violence In Downtown Core,: June 1, 2020: https://spdblotter.seattle.gov/2020/06/01/police-seek-videos-and-photos-as-they-investigate-destruction-violence-in-downtown-core/
• Seattle.gov, Seattle Police Department: https://www.seattle.gov/police/about-us/about-the-department/command-staff
• “A New Shield Law in Washington State,” May 4, 2007, Columbia Journalism Review: https://archives.cjr.org/behind_the_news/a_new_shield_law_in_washington.php
• Washington State Shield Law, RCW 5.68.010: https://app.leg.wa.gov/RCW/default.aspx?cite=5.68.010
• Digital Media Law Project, Washington Protections for Sources and Source Material: http://www.dmlp.org/legal-guide/washington/washington-protections-sources-and-source-material
Jennifer Karchmer is a freelance and independent journalist covering press freedom, the First Amendment and reporter safety. She was an instructor at WWU from 2006-2014 and has served as editor of Whatcom Watch. More at: www.jenniferkarchmer.com.