State’s highest court wrestles with media access to law enforcement recordings from Graham protest

November 7, 2023

Chief Justice Paul Newby, center, asks a question during oral arguments at the state Supreme Court. (Image from Supreme Court of North Carolina YouTube channel)

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  • The state Supreme Court heard oral arguments Tuesday in a dispute pitting a coalition of media outlets against Graham police over release of police video recordings.
  • The recordings stemmed from a protest March in Graham in October 2020.
  • A trial judge ruled in favor of the media outlets in 2021. A split 2-1 decision from the state Court of Appeals last year favored Graham.

The state Supreme Court will decide in the months ahead whether a coalition of media outlets can gain access to law enforcement video recordings from a 2020 protest in Graham. Justices heard an hour of oral arguments in the case Tuesday.

A split decision last December from the state Court of Appeals rejected the media arguments. Appellate judges overruled trial Judge Andrew Hanford, who would have given the media access to all recordings.

The case focused on the rules surrounding the release of so-called “custodial law enforcement agency recordings” to people other than those who appear in the recordings. Media outlets have been using a form developed by the state Administrative Office of the Courts to request recordings.

“We, as a firm, have pursued more than 60 of these release actions or petitions — whatever they have been called,” said Michael Tadych, representing the media coalition. “The forms prescribed by the AOC back in 2016 have worked well for our clients, for us, for the courts, and — we believe — for the law enforcement. If we’ve done something wrong here, we need to know what it is and how we can correct that.”

Michael Tadych at the state Supreme Court
Attorney Michael Tadych presents an oral argument at the state Supreme Court. (Image from Supreme Court of North Carolina YouTube channel)

“The General Assembly placed this statute in the middle of the public-records law — a law that this court has interpreted for 30-plus years to err on the side of openness and access,” Tadych added.

On the other side of the case, attorney Anthony Biller argued on behalf of Graham’s police chief that media outlets should have filed a lawsuit to gain access to the recordings. A lawsuit would have resolved problems created by the AOC’s petition process. That process forces judges and law enforcement agencies to wade through dozens of hours of footage to determine which recordings can be released.

“This inordinate burden — this burden shifting on judges, police departments — ought not to happen,” Biller said. “When the statute is followed, and action is commenced, none of this burden should happen. If this burden happened 60 times previously, it’s simply unfortunate that the courts did not enforce the statute as it is written. It would have avoided these difficulties.”

Anthony Biller at state Supreme Court
Attorney Anthony Biller presents an oral argument at the state Supreme Court. (Image from Supreme Court of North Carolina YouTube channel)

Six of the seven justices aimed questions at the two lawyers.

“Does the media have any obligation to try to narrow or more precisely define what they’re looking for so that the agency is able to hone in on what’s being requested?” Chief Justice Paul Newby asked Tadych.

“I don’t believe there’s any such obligation under the statute,” Tadych responded.

Part of the argument involves use of the words “petition” and “action” in state law. Graham argues that “action” means a civil lawsuit.

Justice Anita Earls questioned that interpretation. “Doesn’t the statute in several places in essence use the word ‘petition’ and ‘action’ interchangeably?” she asked Biller.

Arguments ended with an exchange between Justice Trey Allen and Hugh Stevens, a second lawyer representing media outlets. Stevens quoted from Hanford’s order to release the recordings.

“This court gives great weight to transparency and public accountability with regard to police action and considers a failure to release this information to possibly undermine the public interest and confidence in the administration of justice,” Stevens argued. “I think a judge who wrote that last sentence understood that he did have broad discretion and that he was exercising that discretion. He was doing so because he had not been asked to do otherwise.”

Hugh Stevens at state Supreme Court
Attorney Hugh Stevens presents an oral argument at the state Supreme Court. (Image from Supreme Court of North Carolina YouTube channel)

“He seems to have been under the impression that the default rule under the statute is release,” Allen interjected. “Is that how you read the statute?”

“Well, that’s the way this court has read the Public Records Act generally for many, many years,” Stevens replied.

“But this statute says the records are not public records,” Allen responded. “Is there anything in the text of the statute that indicates that the presumption is release?”

Justice Trey Allen on state Supreme Court bench
Justice Trey Allen asks a question during oral arguments at the state Supreme Court. (Image from Supreme Court of North Carolina YouTube channel)

The Court of Appeals issued a 2-1 ruling on Dec. 20 favoring the Graham Police Department in the dispute. That decision reversed Hanford’s June 2021 ruling. The trial court would have given media petitioners access to the disputed recordings.

“The release of recordings in the custody of a law enforcement agency … requires the petitioning party to show it qualifies and the trial court to so find the basis of that qualification under” state law, wrote Appeals Court Judge John Tyson.

“The trial court failed to check any of the boxes on Petitioners’ eligibility or relevance and failed to make any oral findings of eligibility to release on the transcript in open court,” Tyson added. “In the absence of threshold eligibility and statutorily-required findings, the order of the trial court is vacated, and the cause is remanded for additional findings of fact and conclusions of law consistent with the statute and this opinion.”

Tyson also noted Hanford should have considered whether any recordings should be withheld.

“The trial court also abused its discretion by not redacting irrelevant recordings and in authorizing the immediate and unrestricted release of all of law enforcement recordings requested” in June 2021, he wrote. “The trial court also erred by stating and concluding ‘it has no discretion’ under the statute.”

Judge Fred Gore signed on to Tyson’s opinion. Both are Republicans.

Judge John Arrowood, a Democrat, dissented. “Specifically, the majority misconstrues the plain language of the statute at issue, N.C. Gen. Stat. § 132-1.4A, in such a way that if allowed to stand it would foreclose members of the media from ever filing a successful petition for the release of any [custodial law enforcement agency] recording in the future,” Arrowood wrote. “Because I believe this was never the intent of the statute and is not supported by the plain language of the statute, I dissent.”

The media outlets never asserted that they had a right to the recordings under state law, Arrowood argued. “Here, petitioners do not fall within any of the enumerated categories of persons entitled to disclosure as a matter of right,” he wrote. “This, however, does not categorically bar petitioners from being able to seek, and possibly obtain, release of CLEA recordings.”

“Rather, petitioners must obtain a court order,” Arrowood wrote. “That is precisely what petitioners have done here: because they were not entitled to disclosure as a matter of right, they petitioned the trial court … in hopes of a favorable order.”

Arrowood targets his colleagues’ interpretation of the state law regarding release of law enforcement recordings. “Most importantly and poignantly, … the consequence of the
majority’s reasoning is dangerous: such an interpretation of N.C. Gen. Stat. § 132-1.4A would ensure that members of the media would never be allowed to petition the superior court for release of CLEA recordings, let alone obtain them via court order. I see no support in the statute for such a draconian result.”

The Raleigh News and Observer, WRAL, Greensboro News and Record, WXII, Burlington Times-News, and Carolina Public Press are among the plaintiffs seeking the recordings.

They stem from controversy surrounding the Oct. 31, 2020, “I Am Change” march in Graham.

“The organizers of the march secured a permit to march, but were not authorized to close and were instructed not to block the public streets of Graham for the march,” Tyson wrote. “When marchers refused to clear an intersection of streets following multiple requests, GPD deployed [pepper spray] canisters to clear the street.”

Marchers moved to the Historic Alamance County Courthouse for speeches. “Before the speeches were concluded, GPD officers and sheriff’s deputies discovered a gas-powered generator providing electricity for a sound system. The generator was operating within two feet of a gas container, in violation of the fire code,” Tyson wrote. “Officers attempted to disconnect the generator, but attendees resisted the officers’ efforts.”

“The event was declared to be unsafe, dispersal orders were issued, but went unheeded,” Tyson added. “GPD officers and Alamance County Sheriff’s deputies arrested 23 protesters.”