WDRB News fights 'clearly illegal' search warrant from Louisville Metro Police
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.
LOUISVILLE, Ky. (WDRB) – A Jefferson Circuit Court judge on Tuesday defended his decision to sign a search warrant allowing Louisville police to comb through WDRB News' newsroom and access computers, notes and unpublished material gathered for a recent news story about a suspect in a police shooting.
While a WDRB attorney argued the search warrant requested by the Louisville Metro Police Department was "clearly illegal" under a federal law meant to protect journalists' First Amendment rights, Judge McKay Chauvin said it was the quickest way to ensure the station would not destroy or lose raw video from its interview.
"That's all that was, was saying, 'Hey, don't destroy that,'" Chauvin said. "Somehow it turned into something much bigger."
The judge acknowledged, however, that the warrant was "drafted overbroadly" and dismissed it, telling police to instead issue a subpoena to WDRB. That would allow the station to present any arguments in court and a judge to hear both sides.
WDRB has agreed to preserve the raw video.
At a hearing, Chauvin questioned why WDRB would hesitate to turn over the materials police want.
"What's the problem with (providing the) raw footage?" Chauvin asked WDRB Attorney Jeremy Rogers, talking about video of the interview that is not shown to viewers. "It seems like something that is very doable."
WDRB typically does not provide raw video or any notes or other news gathering materials to law enforcement, said Jennifer Keeney, the station's assistant news director.
Jon Fleischaker, an attorney representing WDRB, said it is the first time he has seen such a warrant signed by a judge 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. LMPD had chosen not to enforce the warrant, and the station had not complied with it.
"They need to get what they need to get," Chauvin said of police. "And you're not in the business of preventing that to which they are entitled."
Rogers attempted to argue that police are not entitled to the raw video but the judge cut him off.
"It's not something worth fighting about," Chauvin told Rogers. "There really aren't opposing sides here. It's not an attack on the First Amendment. It's not an attack on the Constitution. It's just a miscommunication about how best to secure that to which they are entitled."
Rogers did not contradict the judge, telling him "we can argue about to what extent they are entitled to it" at a later date.
An LMPD spokesman said the department will "respect the decision of the court."
But LMPD Lt. Aaron Crowell stood up after the hearing and addressed the judge, asking exactly what he had decided.
Crowell clarified to the judge, "so they will not supply" the raw video, looking at Rogers, who confirmed this.
Chauvin told him police would need to get a subpoena to get the information but that WDRB wasn't trying to stand in the way of justice.
In a motion to dismiss the warrant and contempt hearing filed earlier Tuesday, Fleischaker accuses police of attempting to “send a message to the media” and argues both the department and judge have acted improperly.
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. LMPD has declined to comment on the shooting and denied WDRB's request for police-worn camera footage of the incident under Kentucky's open records law.
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 of 1980, law enforcement is prohibited from searching for or seizing materials from journalists and news organizations except in “very limited circumstances,” WDRB’s motion says.
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.
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