LOUISVILLE, Ky. (WDRB) -- The raw video from a recent WDRB News story about a suspect in a police shooting is a "valid tool to aid in the investigation of a potential crime," the Jefferson Commonwealth's Attorney's office argued in a court motion filed Monday.
Assistant Commonwealth's Attorney Jeanne Anderson disagreed with attorneys for WDRB, who have called a subpoena for the video a "fishing expedition" and an attempt by Louisville Metro Police to intimidate the media.
In her motion, presented to Jefferson Circuit Court Judge Mary Shaw, Anderson argues a crime has likely been committed and the raw video -- not aired to the public -- could provide relevant details, such as the suspect telling a reporter how far away he was while fleeing from the officer, or naming a possible accomplice.
On Monday, Shaw set a hearing date for Oct. 27.
Police have said Dimitri 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 said in an Aug. 28 interview with WDRB that he didn't have a gun and that he believed the officer instead inadvertently shot himself.
Harris spent two months in jail after the incident on a probation violation in a previous case. He was on home incarceration when WDRB talked with him.
The raw video could aid in proving a crime was committed or a suspect has been wrongly blamed, Anderson said in the motion.
"The information, in combination with other evidence before the grand jury, might even exonerate Mr. Harris himself," she wrote.
The station's attorneys are arguing 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."
Attorneys Jon Fleischaker and Jeremy Rogers say the subpoena, issued by a Jefferson County grand jury at the request of a prosecutor and the Louisville Metro Police Department, is "unreasonable and oppressive," meant "simply to harass WDRB" and the man interviewed for the story, according to a motion to dismiss.
WDRB is also arguing it is a First Amendment violation to force the station to turn over materials gathered for a story, which could include confidential sources or information the station does not want to disclose.
But Anderson argues in her motion that WDRB has no First Amendment right in this case, as the information in the raw video could be germane for "a proper inquiry" as part of the investigation. In addition, she contends that state law protects "only confidential sources, not the information itself."
Louisville Police initially served a search warrant last month 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, 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.
The subpoena had required WDRB to bring the raw video to the grand jury room at 514 W. Liberty Street on Friday.
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."
"However, that being said, we do learn from every experience, and with that it looks like coming at it with a subpoena or a court order may be a better way to go," Conrad said. "And based on the directions from a judge, that's exactly what we are going to do."
WDRB has agreed to preserve the raw video.
The station was ordered to appear in court earlier this month to show why it should not be held in contempt for failing to comply with the search warrant. 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."
Copyright 2017 WDRB News. All Rights Reserved