Posted on 09/05/2017 12:09:07 PM PDT by Bratch
LOUISVILLE, Ky. (WDRB) – WDRB News is fighting what its attorney calls a “clearly illegal“ search warrant obtained by Louisville Metro Police that would allow officers to comb through the station’s newsroom and access computers, notes and unpublished material gathered for a recent news story about a suspect in a police shooting.
Jon Fleischaker, an attorney representing WDRB, said it is the first time he has seen such an order in at least the last 40 years, when federal law prohibited law enforcement agencies from serving search warrants on news organizations except in extremely rare cases.
“There are very serious First Amendment concerns about allowing the police to interfere, in essence, in protected activities,” Fleischaker said in an interview Tuesday. “I’m very surprised by this. I think a lot of people would be surprised by this.”
WDRB was ordered to appear in court Tuesday afternoon to show why the station should not be held in contempt for failing to comply with the search warrant he signed last week.
At a hearing Tuesday afternoon in Jefferson Circuit Court, Judge McKay Chauvin said LMPD is entitled to the raw video but will have to obtain it through a subpeona -- a process that could involve a grand jury. Another attorney for WDRB, Jeremy Rogers, said the station would likely fight a subpeona.
But Chauvin also said he didn't believe that a search warrant, which he signed last week, was inappropriate and asked "what's the problem" with turning over raw footage. "They need to get what they need to get," the judge said., referring to LMPD.
In a motion to dismiss the warrant and contempt hearing, Fleischaker accuses police of attempting to “send a message to the media” and argues both the department and judge have acted improperly.
An LMPD spokesman did not immediately provide a comment on the case.
LMPD Sgt. Don Burbrink obtained the search warrant on Aug. 29, one day after WDRB aired an interview with Dimitri Harris, who admitted to fleeing from police in June but denied shooting an officer, as the police department has alleged.
Harris, who has not been charged in the shooting, told WDRB he thinks Officer Brad Shouse shot himself in the foot during the June 21 incident.
Police have said Harris led officers on a foot-chase near Kemmons Drive, firing multiple shots at officers and striking Shouse. Harris said he never had a gun. He has not been charged but spent two months in jail on a probation violation.
The day after WDRB’s Aug. 28 story aired, Burbrink presented the station with a warrant seeking “all footage, including raw and final” and any notes, videos, sound bites and other information obtained during the interview.
Fleischaker argues the warrant is an attempt to send a message to the news media and Harris that he should not speak to journalists again.
A different attorney for the station told Burbrink the warrant violated federal law and WDRB could file a lawsuit against the city and police, according to the motion filed Tuesday by the station to dismiss the search warrant.
That attorney, Monica Dias, told Burbrink the “proper method” to seek the information was through a subpoena, which would allow the station to present any arguments in court and a judge to hear both sides.
Burbrink, according to WDRB’s motion, agreed to return the search warrant as “unexecuted” and “would, instead obtain a subpoena as required by law.”
But on Aug. 30, Chauvin issued the contempt hearing motion, noting he had been “insufficiently advised” about the matter, Fleischaker wrote.
Fleischaker argues in the motion that WDRB should not be held in contempt because the station did not “refuse” or “fail to comply” with “a clearly unlawful search and seizure.”
When presented with the search warrant, WDRB contacted an attorney and spoke “in a professional and courteous manner” to Burbrink, properly informing him he was violating the law, Fleischaker wrote.
Under the federal Privacy Protection Act enacted in 1980, law enforcement is prohibited from searching for or seizing materials from journalists and news organizations except in “very limited circumstances,” according to WDRB’s motion.
Law enforcement must have reason to believe that the information they are obtaining is necessary to prevent someone from being hurt or could prove that the reporter has committed a crime.
In this instance, the raw footage and reporter Chris Sutter’s notes are “clearly protected,” as “neither exception even remotely applies here,” Fleischaker wrote.
LMPD has obtained a “blanket command” to seize WDRB newsgathering materials “based on nothing more than the speculative hope that the materials might contain something relevant,” according to the motion.
Forcing journalists to turn over unpublished or unbroadcast news gathering materials could have a have a “chilling effect” on the freedom of the press, Fleischaker argued.
“What they are trying to do is prohibited by law,” he said.
As much as I hate the news media (in general) I agree- this is a ballsy-ass move.
GOOD THING YOU LIBERAL JOURNALISTS ALL SUPPORTED GROWING BIG GOVERNMENT INTRUSION INTO EVERYONE’S LIVES!
Oh.. you didn’t think it would apply to you? Isn’t that cute...
Cry me a river. Your days of being privileged characters in this country are over.
Well, isn't this an extremely rare case. LOL
First time in 40 years? Sounds rare to me.
Does doesn’t it. “:^)
They are trying to CONFISCATE all guns and Ammo in the US Virgin Islands!
The illegal “order” by the so-called “governor” this is at this link, which downloads a copy to your desktop. I say, COME AND GET’EM!! But you are getting all the AMMO first!
http://dailycaller.com/wp-content/uploads/2017/09/NATL-GUARD.pdf
Someone not bent on being such an ass might have read the actual criteria, which are rarely met and clearly not met here.
You are such a dip-stick.
Now tell me I have blasphemed God and be done with it.
There is nobody that despises the "liberal news media" more than I, a former TV news reporter. However, illegal is illegal, and it could bite those who are honest (and there ares some). Be careful.
No, it suffices here to say you’re a self-filled ass.
The First Amendment rights recognized for the media should also be recognized for individual citizens.
If an individual citizen had video-recorded a conversation with Harris and posted it on YouTube, the police would have long since removed the recording from the citizen, and tasered him if necessary, with barely more than a quick warrant.
Well maybe not. A self-filled buffoon ass.
Now that’s one of the best arguments you’ve made in years.
Not that it’s a good argument mind you, but hey you didn’t pretend to be God and claim I had blasphemed you.
Congrats...
You raise an excellent point. Technology has forever blurred the line between “the media” and everyone else.
We are all Journalists now.
You obviously think you scored points there.
Do you have any idea how many people contacted me to say you’re an idiot based on their experiences with you and your actions yesterday?
You need to rethink your approach. What you are doing is not working for you.
A police officer was shot. Articles in the paper led the police to believe the paper knew who the suspect was. The police asked for the right to access records.
That isn’t out of line.
Some folks will claim the paper should not be subject to this, but some folks will also find it reasoned to seek any way to find out who the criminal is.
What are you acting like here other than a self-filled buffoon ass?
The First (and Fourth) Amendment rights, which exist for all citizens, should apply no differently whether those citizens are the media or not.
No, they aren't. That's an order to access all supplies, not just guns and ammo, that the National Guard might need during or after an emergency, such as when a cat 5 hurricane flattens the island.
Now maybe they’ll support ending the information gathering on all Americans.
If an individual citizen had video-recorded a conversation with Harris and posted it on YouTube, the police would have long since removed the recording from the citizen, and tasered him if necessary, with barely more than a quick warrant.
Absolutely agreed on both points. The media shouldn't get any special privileges. Who is, and is not designated as "media" is completely arbitrary and subjective.
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