Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
On Appeal Contracts Expression
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The Seattle King County Superior Court granted an application by the City of Seattle’s Police Department (SPD) for a subpoena to obtain unpublished photos and video footage of protesters from five news media outlets. The SPD filed the subpoena as journalists and photographers from the media outlets were present during both the theft of firearms from SPD vehicles and the arson of six SPD vehicles on May 30, 2020. The media outlets objected to the subpoena on the grounds that compliance would compromise their independence, by acting as an investigative arm of the police, and risk the safety of their journalists. The Court held that the SPD had fulfilled the statutory requirements of the qualified Washington shield law to obtain the material as it was relevant and necessary to their investigation; all alternative means to obtain the evidence had been exhausted and there was a compelling public interest in the disclosure.
During the summer of 2020, protests and demonstrations were held across the United States against police brutality and racial injustice following the killing of George Floyd in Minneapolis by a white police officer. On May 30, 2020, during a protest in the city of Seattle, Washington, a crowd broke off between approximately 3:30pm and 5pm in the downtown area. The crowd lit six Seattle Police Department (SPD) vehicles on fire and stole five firearms from SPD vehicles, two of which remain unrecovered. The five news media organizations concede that their journalists were present at the scene during this time with high quality equipment.
Following the protest on May 30, several of the media organizations published photos from the area of downtown Seattle, including 69 photos that remain online at the Seattle Times website. The principal witness for the SPD, Detective Magan testified that these photos had been reviewed by the SPD on June 8, despite his claims to the contrary during cross-examination. Detective Magan also claims that the SPD contacted local businesses to collect surveillance video, as well as review publicly-aired video footage from the news media. In total, Detective Magan and 29 other colleagues spent over 1000 hours on investigating the impugned crimes in collaboration with the Federal Bureau of Investigation (FBI), the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), and the U.S. Attorney’s Office.
The SPD made several informal attempts to obtain photographic evidence regarding the “number of assaults, arsons, burglaries and other crimes that occurred… in Downtown Seattle.” [p. 11] On June 2, Detective Magan contacted Steve Miller, a Sinclair Media of Seattle, LLC (KOMO) cameraperson, who confirmed that he had filmed one of the crimes, yet would be unlikely to share the file without a court order. The SPD also sought the public’s help to provide information regarding the crimes, including setting up an Evidence Submission Portal. Visual images posted on the internet were also reviewed by the SPD. Detective Magan claims that the SPD’s investigation into the identity of the suspects and recovery of the two firearms is at a “dead end.” [p. 15]
On June 18, 2020, the City of Seattle’s Police Department (SPD) submitted a subpoena to five news media organizations: KIRO TV, Inc. KING Broadcasting, Sinclair Media of Seattle, Fox Television Stations, LLC, and the Seattle Times Company. Judge Patrick Oishi issued the proposed Subpoena to the news media parties, notifying them that SPD was seeking “[a]ny and all video footage or photographs, including but not limited to all unedited and/ or raw video footage, taken on Saturday, May 20, 2020, from 1530 hours to 1800 hours from the locations of Olive Street to Pike Street and also from 6th Avenue to 4th Avenue in Seattle, Washington.” [p. 1-2]
On June 29, the media organizations filed “Objections and Request to Quash the Subpoena For Protected Newsgathering Material”, along with a supporting Declaration of Danny Gawlowski and an amicus curiae from the Reporters Committee for Freedom of the Press.
On July 16 and July 23, the Court held telephonic hearings to consider the arguments of legal counsel, Detective Michael Magan and the amicus. During and before the proceedings, the SPD offered the five news media organizations a “proposed protective order” to address their objections and limit the use of the requested evidence. During the July 23 hearing, the news media organizations declared that the “proposed order did not address their overbreadth and undue burden concerns.” [p. 15]
The Honorable Judge Nelson K. H. Lee delivered the opinion of the King County Superior Court in the state of Washington.
The Court found that there was no procedural impropriety concerning the issuance of the subpoena. The evidence sought by the SPD in their criminal investigation was held by media organizations, requiring a subpoena for production of evidence (subpoena duces tecum), rather than a standard search warrant. Superior Court Criminal Rule 2.3(f), concerning “Searches of Media, requires that “the court shall issue a subpoena duces tecum in accordance with CR 45(b).” [p. 18] The Court disagreed with the argument by the news media parties that the “full panoply of provisions in CR 45 apply.” [p. 18] However, Judge Lee found that the provisions of CR 45 had nonetheless been met as the subpoena duces tecum, among other requirements, had stated the name of the court from which it was issued, was “properly served on the appropriate parties” and “affords the served parties more than 14 days after service of the subpoena to submit written objections.” [p. 18]
The Court then considered the Washington Shield Statute (RCW 568.010), which establishes a “privilege against compelled disclosure when police issue a subpoena.” [p. 20] The statute is a qualified privilege, prohibiting any “judicial, legislative, administrative, or other body with the power to issue a subpoena or other compulsory process” to enforce the media to provide information without fulfilling certain criteria. [p. 20] Judge Lee found that Judge Patrick Oishi, who had approved the subpoena duces tecum on June 18, had followed the correct procedure. Further, it was “undisputed” that the SPD was investigating “numerous serious felonies” and sought information that was not confidential. In such situations, the shield statute provides that the court may compel the production of “outtakes, photographs, video or sound takes, [or] film” if the four-part test has been fulfilled. [p. 20] Therefore, the SPD must establish by “clear and convincing evidence” that the information sought is (i) “highly material and relevant”, (ii) “critical or necessary”, (iii) that the SPD “has exhausted all reasonable and available means to obtain” the evidence from alternative sources and (iv) that there is a “compelling public interest in the disclosure.” (RCW 5.68.010(2)(b)(i)-(iv) [p. 20] “Clear and convincing” evidence exists where the fact at issue is “highly probable” according to the evidence. (State v. Dobbs, 180 Wn.2d 1, 11, 320 P.3d 705, 710 (2014)) [p. 21] The Court addressed each of these statutory elements separately.
Applying the first requirement of the four-part test, Judge Lee held that the SPD “has shown by clear and convincing evidence that the material requested is highly material and relevant to its investigation.” [p. 23] The Court reasoned that the employees of the news media parties were present at the impugned time and location and captured higher resolution images of the suspect than what was already available via security footage and cell phone images. The identity of the suspects is also “highly material and relevant” to the SPD investigation into the arson and theft of firearms. The high quality images gathered by the media organizations’ photographers were considered to be “highly likely to assist in SPD’s investigation.” [p. 23] However, the Court acknowledged that it was unclear whether such images of the suspects of the firearms theft “exists at all beyond what has already been published” or if they would be of “greater evidentiary value.” [p. 23] Although the news media parties argued that the SPD must demonstrate exactly what images they sought, the Court rejected this standard as too high a bar. Rather, “reasonable inferences” were sufficient as “there may be instances in which the content of the unpublished news is not known to the party seeking it, but can be inferred from the content of the published portion or from witnesses accounts or from the circumstances surrounding its creation.” (In Re Grand Jury Subpoena to National Broadcasting Co., Inc., 178 Misc.2d 1052, 1058, 1059, 683 N.Y.S.2d 708, 713 (N.Y. Sup. Ct. 1998) [p. 24] As such, the Court found that the SPD had demonstrated by “clear and convincing” evidence that the material requested was “highly material and relevant” to their investigation.
Considering the second element, the Court found that the SPD had proven by “clear and convincing” evidence that the information sought was “critical or necessary” to their investigation. Detective Magan testified that all other available sources had been reviewed and were not of sufficient quality to identify any suspects. Judge Lee held that the footage shot by the news media parties would be the “best evidence available to identify these suspects” as well as aid in the recovery of the two stolen firearms. [p. 25] The Court referenced a similar subpoena upheld in In re Grand Jury Subpoenas Served on Nat. Broad. Co.m Inc, 178 Misc. 2d 1052, 683 N.Y.S.2d 708 (N.Y. Sup. Ct. 1998), in which a grand jury subpoena was issued to several media companies to obtain footage of a demonstration in which police officers were assaulted. Applying New York’s similar shield statute, the trial court held that the footage was “critical or necessary” as no other witnesses were available “other than the broadcast camera crews.” (In re Grand Jury Subpoenas Served on Nat. Broad. Co.m Inc, 178 Misc. 2d at 1058, 683 N.Y.S.2d at 712 (N.Y. Sup. Ct. 1998)) [p. 26] Despite some factual differences between In re Grand Jury Subpoenas and the present case addressed by the news media parties, the Court applied the case “given the lack of Washington case law.” [p. 26]
The Court then held that the SPD had fulfilled the third requirement of the four-part test by providing “clear and convincing” evidence that it had “exhausted all reasonable and available means to obtain” [p. 27] information from alternate sources. The SPD had sought evidence from an incident report from a citizen who had recovered two of the stolen firearms, a video captured by the SPD Police Department, surveillance footage from local businesses, video footage sent by citizens in the area, published video footage from KIRO TV, KING TV, KOMO TV, KCPQ, as well as published photos in the Seattle Times. Over 1,000 hours of work by the SPD in collaboration with the FBI, ATF and U.S. Attorney’s Office had been dedicated to the search into available evidence. The Court rejected the news media parties’ suggestion that there could be a “digital milk carton” appeal for information. Judge Lee argued that it is “easy to criticize” a police investigation by suggesting alternative means to obtain evidence. However, the Shield Statute requires that the police only exhaust “all reasonable and available means” of investigation before obtaining a subpoena. Judge Lee did not consider a wider public appeal as likely to be helpful, considering the limited public assistance thus far. The Court reasoned that the SPD “should not be denied the video footage and photographs requested until they have looked for the proverbial needle in the haystack.” [p. 29] Accordingly, the Court held that the SPD had exhausted all “reasonable and available means” to obtain the information via alternative sources.
Applying the final element of the four-part test, the Court determined that the SPD had shown by “clear and convincing evidence” that there is a “compelling and public interest” in the disclosure of the evidence sought. Referencing both the First Amendment and the Washington State Constitution, the Court recognised that the news media “is not and should not be an arm of the government.” [p. 30] Nonetheless, neither the state nor federal constitution exempts the press from providing the government with evidence for an investigation. Citing the Supreme Court, “the public has a right to every man’s evidence” for a criminal investigation, including the President of the United States. (Trump v. Vance, 591 U.S., 2020 WL 3848062) [p. 30] As such, both the state and federal constitutions only recognize a qualified reporters’ privilege that can be overcome when necessary. (Branzburg v. Hayes, 408 U.S. 665, 691, 92 S. Ct. 266, 33 L.Ed.2d 626 (1972)) The Shield Statute also requires that a “court may consider whether or not the news information was obtained from a confidential source in evaluating the public interest in disclosure.” RCW 6.68.010(2)(a)(iv) [p. 31] As the evidence required relates to acts committed in public, it was not confidential. The Court then considered the argument by the news media parties and amicus curiae about the potential threat of violence toward journalists when reporting at future protests. The Court recognised that it was “undisputed” that there had been a rise in violence against the media, yet found that there was “no evidence” to suggest that issuing a subpoena “has caused or will cause such violence.” [p. 31] Therefore, the Court held that the public interest lay in identifying the felony suspects and recovering the stolen firearms, which may “one day be used against an individual or individuals, including during future protests.” [p. 32]
Finally, the Court held that there was no “overbroad and unduly burdensome” objection to the Shield Statute. The Washington Shield Statute does not include a no “overbroad and unduly burdensome” exception, applying instead the four-part test. However, the Court agreed with the news media parties that “every effort must be made to keep the scope of what is obtained as narrow as is reasonably necessary for the specific investigation.” [p. 32] The Court recognised that the SPD was not seeking any cell phone video or photographs from the parties, who had offered to enter into a “protective order” to limit the use of the collected evidence. The Court had also offered an additional “layer of scrutiny” by ordering that all materials be reviewed by the Court in-camera beforehand. As such, the Court did not find there to be a valid objection to the subpoena as “overbroad and unduly burdensome.”
Having applied the four-part test, the Court found that the City of Seattle Police Department had overcome the qualified privilege of the Washington Shield Statute. Judge Lee therefore granted the application by Seattle Police Department for the search warrant to obtain evidence for their criminal investigation.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision restricts expression by creating a precedent within Washington State to allow the police to overcome the state shield statute and obtain evidence from news media organizations for their investigations.
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