SEATTLE (CN) — All major Seattle media outlets must turn over to police unedited video of a Black Lives Matter protest that may include images of potential suspects torching police cars and stealing weapons in the vehicles, a King County Superior Court judge ruled Thursday.
Judge Nelson Lee granted the unprecedented subpoena by the Seattle Police Department, saying it did not violate Washington state’s Reporter Shield Law and the video was necessary for the investigation.
The Seattle Times and television stations KIRO, KING, KOMO and KCPQ may appeal the decision and will decide by July 30, the media outlets’ attorney Eric Stahl with Davis Wright Tremaine said.
The media must 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.”
At an initial hearing on June 16, Lee asked detective Michael Magan why photographs of suspects that were in the subpoena affidavit have not been distributed to the public to help with identification and continued proceedings until Magan could find out.
A captain supervising the investigation instructed the photographs to be withheld from the public to prevent the suspects from getting rid of the weapons or changing their appearance, Magan said at Thursday’s hearing.
The suspects’ images were provided only to law enforcement, the detective said.
Magan said he has investigated 35-50 stolen firearms cases and has only asked for public help with identification of suspects as a “last ditch effort.”
Stahl called the decision not to go public with the images “baffling” because all media outlets have reported that officers’ guns were stolen.
“How could it compromise the investigation if it’s known the guns are missing?” Stahl asked, adding SPD can’t say it has exhausted all investigative efforts.
One suspect in the rifle theft was arrested last week, Magan disclosed in his testimony, prompting Stahl to say SPD was able to solve a case without “deputizing the press as an investigative arm of the state.”
Magan said he hoped high-quality images obtained from the media would show three other suspects still wanted.
“I have exhausted all my leads,” Magan said.
Brian Esler, an attorney representing SPD, said subpoenaing the images “really is a last resort.”
Magan said he viewed a photo listed as one of 69 images in the Seattle Times and he would like to see the other 68.
Stahl pointed out they were all online.
“All of the photos are published online in a photo gallery on the Times website,” Stahl said. “Did you not see them?”
Magan replied he did not.
Esler said not everything the media filmed is available online and the unpublished video is “clearly relevant to the investigation.”
Esler also said video taken by journalists at a public event is not the same as information gathered from a private source.
Madeline Lamo, who submitted an amicus brief for Reporters Committee For Freedom of the Press, disagreed. In an interview, Lamo said she was “disappointed” with the ruling and Washington’s Shield Law protects not only confidential sources but also journalists’ unpublished work product.
“Compelling them to turn over to the police unaired video footage and photographs gathered to report the news will sharply increase that risk. Enforcement of the subpoena could mislead the public into perceiving reporters at protests as a mere arm of law enforcement, thus eroding public trust in the news media and increasing the already significant risk of physical harm that journalists face when covering protests,” Lamo’s group said in its brief.
Judge Lee, a former King County prosecutor, agreed SPD has exhausted all “reasonable” means and said he would not second guess why officials chose not to make the suspects’ photos public.
He ordered production of all the requested video, but exempted journalists’ cellphone images.
Lee also ordered the media evidence be used only for the current police firearms theft and arson investigation. If any evidence from the obtained footage is used for other reasons, Lee will hold the party in contempt of court and the evidence will be deemed illegally obtained.
Further proceeding are scheduled for July 30.