Judge rejects Louisville police demand for WDRB's unaired footage
"Are we to understand that LMPD is now going to depend on reporters to generate crucial evidence of criminal wrongdoing in our community?" Judge Charles Cunningham asked in his ruling.
LOUISVILLE, Ky. (WDRB) – A Louisville judge has rejected efforts from the Louisville Metro Police Department and Jefferson Commonwealth's Attorney's office to obtain raw video from a WDRB News story about a suspect in a police shooting.
Chief Jefferson Circuit Court Charles Cunningham described it as a "close call" in dismissing a subpoena that would have required WDRB to turn over raw video -- not aired to the public – of an Aug. 27 interview with Dimitri Harris.
Police have repeatedly said Harris shot at officers while leading them on a foot chase in June near Kemmons Drive between the Watterson Expressway and Goldsmith Lane, hitting Officer Brad Shouse in the foot.
But police never charged Harris, who told WDRB that he didn't have a gun and that he believed the officer instead inadvertently shot himself.
While prosecutors argued investigators and a Jefferson County grand jury needed the raw footage to find the truth of what happened, Cunningham criticized this investigative method.
"It is a poor way to build (or reject) a case involving a wounded policeman," he ruled. "Are we to understand that LMPD is now going to depend on reporters to generate crucial evidence of criminal wrongdoing in our community?"
The WDRB interview with Harris took place two months after "the police had already staked out a public position" that Harris shot the officer, Cunningham wrote. "If they didn't already have enough evidence to indict him, and thus really need this footage, why did they say such disparaging things in the first place?"
Harris, the judge said, had limited means to try and clear his name and "if the media feel they are going to be beset by subpoenas every time they try to help a citizen air his side of the story, folks might get prosecuted in the media rather than in the courts."
However, Cunningham has ordered WDRB to preserve the footage in case the Commonwealth's Attorney's office appeals the ruling.
In addition, Cunningham wrote that his ruling did not address whether WDRB reporter Chris Sutter, who conducted the interview with Harris, can be subpoenaed to testify before the grand jury.
Commonwealth's Attorney Tom Wine said his office was reviewing whether to appeal the ruling, but that he had implemented a new policy requiring subpoenas to media outlets to be approved by him or his first assistant.
LMPD Sgt. John Bradley said, "We honor decisions the court makes.”
Attorney Jon Fleischaker, who represents WDRB, said the ruling is important not so much for the Harris case, "but it affirms the grand jury and state do not have an absolute right to get this information any time they want it for any reason. LMPD never gave any thought to the important First Amendment issues involved in going after a reporter's information."
Louisville police initially served a search warrant on WDRB that would have allowed police to comb through the station's newsroom and access computers, notes and unpublished material gathered for the story.
WDRB attorneys argued the search warrant was "clearly illegal" under a federal law meant to protect journalists' First Amendment rights.
Jefferson Circuit Court Judge McKay Chauvin defended his signing of the search warrant, saying it was the quickest way to ensure the station would not destroy or lose raw video from its interview. The judge acknowledged in a hearing, however, that the warrant was "drafted overbroadly" and dismissed it, telling police to instead issue a subpoena to WDRB.
"They need to get what they need to get," Chauvin said of police at the time. "And you're not in the business of preventing that to which they are entitled."
In a hearing last month, Assistant Jefferson Commonwealth's Attorney Stacy Grieve argued in front of Cunningham that prosecutors have subpoenaed media raw video many times before and this was the first time it became an issue of contention.
She said investigators and a Jefferson County grand jury are seeking the truth of what happened and Harris may be a "suspect or witness" -- and that he told WDRB something different than what he initially said to police.
The station's attorneys argued in court records that LMPD has been sure enough of Harris' involvement to repeatedly accuse him publicly, yet "instead of arresting or charging him, the police now seem to suggest that WDRB's unaired footage of the interview in which Harris denied the accusation is somehow necessary to secure a grand jury indictment."
Police Chief Steve Conrad has declined to comment when asked if Shouse was shot by a fleeing suspect or instead accidentally shot himself in the foot during the chase.
LMPD denied WDRB's request for police-worn camera footage of the incident under Kentucky's open records law, saying the shooting is under investigation.
However, LMPD typically releases body camera footage immediately in incidents in which officers have shot someone, despite those cases also being under investigation.
Conrad has said this is a different situation "where you don't have the same level of, necessarily, community interest" as when police use deadly force.
Asked if police were incorrect in obtaining a search warrant, Conrad said the information WDRB has may be "critical" to the investigation and he didn't "have a problem with that being done."
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