Seattle Judge Mulls Over Police Subpoena for Journalists’ Videos

People gather and have discussions outside the Seattle Police Dept. East Precinct building in this June 11, 2020. (AP Photo/Ted S. Warren)

SEATTLE (CN) — A Seattle judge is asking for more information before ruling on a police subpoena directed at the city’s five major media outlets seeking images of potential suspects in the torching of police cars and theft of weapons in the vehicles during a May 30 protest.

An attorney representing the news organizations called the subpoena “unprecedented” and a clear violation of Washington’s reporter shield law.

“This doesn’t target a single reporter or two, it’s a blanket that targets every major outlet in the city,” Eric Stahl, an attorney with Davis Wright Tremaine representing the media companies, said at a King County Superior Court hearing Thursday.

The Seattle Police Department is on a “fishing expedition and has not come close to meeting its burden,” to show the video requested is critical and necessary for the investigation, Stahl said.

The SPD wants the Seattle Times and television stations KIRO, KING, KOMO and KCPQ to turn over all videos and photos taken over a 90-minute period in the downtown blocks surrounding a demonstration protesting the killing of George Floyd.

During the demonstration, suspects set fire to five police cars and stole a loaded Glock Model 43 semi-automatic pistol and a loaded Colt M4 carbine rifle, according to the SPD affidavit filed with the subpoena.

Under the Washington Shield Law, the party seeking disclosure must show the information sought is “highly material and relevant,” “critical or necessary” to a claim that has compelling public interest and must show it has “exhausted all reasonable and available means.”

Stahl said police are just speculating that the media have better images than investigators have already seen on surveillance video and social media.

Judge Nelson Lee asked Stahl if he thought the police hoped some journalist had photos of the culprits stealing guns.

“Hope is not enough to get past the shield law,” Stahl said.

Police have the burden to show “clear and convincing evidence” that materials subpoenaed are necessary, not speculation.

“Is that really speculative? Being where they were, limiting requests for raw footage for a specific time and area?” Lee asked.

“I don’t think the subpoena narrowly targets individuals who took images,” Stahl replied.

Stahl said the police are asking for “everything from every journalist” who was there in the 90 minutes.

The time and effort to go through all the footage taken by journalists would be “extremely burdensome” for the news organizations, Stahl said.

Reporters already face hostility in covering protests because they are seen as being with the cops, he said. Journalists are not acting as an arm of the state and they need to be credible to do their jobs.

Brian Esler, an attorney representing SPD, said the broad subpoena was “an unusual procedure,” and one not usually used by the department.

“We are trying to identify suspects and recover stolen guns,” he said.

Lee suggested police and the media outlets could work together to narrow the scope of the subpoena to pinpoint certain journalists.

Esler agreed it might be a solution, but Stahl said it would still be “extremely burdensome” for news organizations.

Lee asked Detective Michael Magan, who filed the affidavit, if video evidence from the media was vital and necessary for the case.

Magan said things were looking promising in one investigation involving the firearms theft and arson and it would be a “coin toss” whether the new evidence might help.

Lee pressed Magan on what other avenues SPD used to investigate the case before turning to a media subpoena.

Magan said the SPD website posted a link where members of the public could anonymously upload relevant video to the investigation. Out of 27,800 videos submitted through the site, “most were pornographic videos or links to other websites” that were not useful.

Stahl asked Magan why photographs of suspects that were in the affidavit have not been distributed to the public to help with identification.

Magan said he was told by his superiors not to circulate the images and the court would have to ask his bureau chief or the chief of police.

Lee said he wanted to know why the suspects’ pictures were not released to the public and asked Esler to find out.

Lee said he wouldn’t decide on the motion to quash the subpoena until he had that information and continued the hearing for next week.

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