Wednesday, August 4, 2021

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Judge won’t mandate release of videos until appeals court ruling

An Alamance County superior court judge has decided not to double down on an order that he issued last month, instructing the release of all law enforcement recordings from a racial equity march on October 31.

During a virtual hearing on Wednesday, Judge Andy Hanford decided not to hold either Graham’s municipal police department or the office of Alamance County’s sheriff to his original instructions that they must release all footage they have from the march by June 25.
Hanford had initially set this deadline in response to a request from a coalition of news outlets led by the McClatchy newspaper chain. On Wednesday, however, the judge chose not to force the issue in light of a challenge that attorneys for Graham’s police chief have announced they’ll pursue with North Carolina’s Court of Appeals.

“There is one order; and it has been appealed,” Hanford said at the end of Wednesday’s proceedings. “Let’s see what the Court of Appeals has to say about what happened.”
Hanford’s succinct declaration came at the end of nearly an hour of back and forth between the legal counsels for Graham’s police chief and Alamance County’s sheriff and the attorney who has been representing the news outlets who’ve requested the footage.

The opposing attorneys ultimately bickered over everything from the privacy rights of police officers to the extent of Hanford’s purview over the case now that it seems destined for the N.C. Court of Appeals. They also argued about judicial protocol – particularly as it relates to the sheriff’s office, which never filed its own appeal of the judge’s directive and yet failed to release the requested recordings by the deadline that Hanford had set. Along the way, these sparring lawyers traded colorful insults, lapsed into legal Latin and folksy expressions, and alternately accused each other of disregarding various aspects of Hanford’s original order.

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The central issue up for consideration on Wednesday was whether Hanford should hold off on his demand for the release of footage from the aforementioned march given Graham’s plans to appeal the judge’s decision. Hanford had initially issued this order on June 15 in response to a request from McClatchy and its co-plaintiffs for all of the law enforcement recordings from the event, which took place on the last day of early voting prior to last year’s general election.

Although the march itself went off without much of a hitch, things went from bad to worse after Graham’s municipal police force decided to use pepper spray to clear the streets ahead of a scheduled rally that the march’s organizers had obtained permission to hold on the grounds of Alamance County’s historic courthouse. By the time it was all over, some 23 people had been arrested by either the city’s police officers or their counterparts from the sheriff’s office, and it wasn’t long before participants in the march were filing lawsuits over the law enforcement response that they perceived to be excessively heavy handed.

McClatchy and its fellow petitioners ultimately sought the recordings that the two agencies had produced in order to make sense of the conflicting accounts that law enforcement officials and the march’s participants shared in the event’s aftermath. The requested materials include footage from the body-worn cameras that are currently issued to members of Graham’s police force. Although the sheriff’s office doesn’t equip its deputies with similar cameras, it nevertheless used tools ranging from camcorders to drones to capture footage of the march from various angles – and these recordings were likewise subject to the request that McClatchy and its fellow petitioners made.

In his order on June 15, Hanford found that the recordings sought by the petitioners included footage that could harm the reputations or even the safety of unspecified individuals. The judge nevertheless decided that the release of these materials would serve the fair and transparent dispensation of justice, and he ordered both law enforcement agencies to release their footage “without redaction or alteration.”

Hanford’s decision prompted a post haste declaration from the attorneys for Graham’s police chief Kristy Cole that they would appeal the judge’s ruling. Yet, it wasn’t until Hanford’s deadline had come and gone that Cole’s lawyers also asked the superior court judge to stay his order while the police chief’s appeal wends its way through the state’s courts system.

Tony Biller, the lead attorney for Cole in this case, told Hanford on Wednesday that this seemingly belated request for a stay was the result of his assumption that the appeal itself had effectively put the judge’s order on ice pending a hearing before the N.C. Court of Appeals. Biller added that he later decided to make a formal request to Hanford “out of an abundance of caution.”

“The motion for a stay is a bit of belt and suspenders,” he told the judge during the virtual hearing. “In this case, where the appealing party has the duty to act, we believe it’s settled law in this state that this deadline is suspended.”

Biller also presented a second request to cover the eventuality that the requested recordings may, at some point, see the light of day. The police chief’s attorney said that, should this come to pass, he would like to ensure that any news outlets which publish the law enforcement recordings “redact or obscure the identifying information for the law enforcement officers” by blurring or obscuring their faces.

“There’s been a lot of misunderstanding of the issues and a lot of spinning of the press,” Biller contended. “There’s a real risk of harm here, and a lot of that harm can be avoided simply by protecting the identities of the police officers.”

In addition to Biller, Hanford also heard from Alamance County’s deputy attorney Ben Pierce about the conspicuous absence of a request for a stay from the office of Alamance County’s sheriff.

Earlier this week, Cole’s attorneys modified their original request for a stay to include some mention of Alamance County’s sheriff Terry Johnson. Pierce nevertheless conceded that neither he nor any other lawyer for the sheriff has taken the initiative to pursue a separate request on behalf of the sheriff on the assumption that Cole’s pursuit of an appeal had stopped the clock on Hanford’s order.

“For the record,” Pierce told the judge, “the sheriff hasn’t filed a motion for appeal, and we are here today because of Graham’s motion to stay.”

Pierce went on to concede that he hadn’t complied with the judge’s order because he assumed it was moot. The deputy county attorney tried to justify this decision by pointing to the “inextricable link” that he insisted connects the sheriff’s footage and the recordings that Graham’s police force obtained.

“ACSO’s release of their portion of the videos could be prejudicial to Graham’s appeal,” Pierce told the judge. “These recordings cannot be unreleased once they’re given to the newspapers. Once they’re out, they’re out.

“I thought it most prudent to withhold the release of the recordings until the court had ruled on Graham’s motion,” he added. “The ACSO has the recordings prepared and ready for release pending the outcome of this hearing.”

Pierce’s rationale for the county’s noncompliance didn’t seem to pass muster with Mike Tadych, an attorney for the N.C. Press Association who has also represented the petitioners in this case. Nor was Tadych particularly impressed with the legal arguments that Cole’s lawyers had submitted for the obfuscation of police officers who appear in the footage.
Tadych went on to deliver a scathing rebuke of Biller’s assertion that the judge’s order should be amended to ensure that officers aren’t identified.

“Graham police department’s memorandum is a grab bag of multiple assertions seemingly offered in the hope that one of them might stick to the proverbial wall, and none should,” he told Hanford. “Given that all of this took place on the streets and sidewalks and public areas of Graham, North Carolina,” the attorney added, “there was no expectation of privacy for anyone on the public streets…and not a single Graham police officer appeared or asked to be heard at the hearing on June 10.”

Tadych went on to complain of the impracticality of blurring faces in the 50 hours of footage that Graham’s police department reportedly shot during the march. In the meantime, he presented Hanford with a motion of his own that called on the law enforcement agencies to “show cause” for their failure to comply with the judge’s order.

“It appears that not having prevailed in its attempts to prevent release of the recordings, Graham now asserts irreparable harm and privacy arguments by proxy on behalf of Graham police officers who failed to appear and raise these arguments with the court back in June,” he said. “It’s been 249 days since the march took place. It’s been 183 days since the petitioners filed their petition. It is past time for these recordings to be released.”

Tadych’s arguments – or at least his choice of pejoratives to illustrate his points – appeared to get under the skin of the opposing counsel.

“This isn’t a grab bag, this is fundamental North Carolina law,” Bill told Hanford when he got a chance to respond. “It is a tickytack argument that I don’t think justifies claiming no stay is appropriate.

“To say that law enforcement officers have no privacy rights…flies in the face of legislative history,” he added. “It flies in the face of this court’s order. It’s unfair to these officers, and it’s legally without merit.”

Hanford, for his part, refused to get drawn into the tit-for-tat squabble between the two lawyers who appeared before him on Tuesday. In the end, the judge chucked out Biller’s request for the footage to be obscured, and he dispensed with Tadych’s motion to show cause. He nevertheless approved the request for a stay because, as he went on to explain, “this court is divested of all jurisdiction” now that the matter is headed to the appellate level.

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