Split Appeals Court rules for Graham police in dispute over media access to recordings | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    The N.C. Court of Appeals has issued a 2-1 ruling favoring the Graham Police Department in its dispute with media outlets over access to law enforcement recordings of an October 2020 protest.

    The decision reverses a trial judge's June 2021 ruling. The trial court would have given media petitioners access to the disputed recordings.

    "The release of recordings in the custody of a law enforcement agency ... requires the petitioning party to show it qualifies and the trial court to so find the basis of that qualification under" state law, wrote Judge John Tyson.

    "The trial court failed to check any of the boxes on Petitioners' eligibility or relevance and failed to make any oral findings of eligibility to release on the transcript in open court," Tyson added. "In the absence of threshold eligibility and statutorily-required findings, the order of the trial court is vacated, and the cause is remanded for additional findings of fact and conclusions of law consistent with the statute and this opinion."

    Tyson also noted trial Judge Andrew Hanford should have considered whether any recordings should be withheld.

    "The trial court also abused its discretion by not redacting irrelevant recordings and in authorizing the immediate and unrestricted release of all of law enforcement recordings requested" in June 2021, he wrote. "The trial court also erred by stating and concluding 'it has no discretion' under the statute."

    Judge Fred Gore signed on to Tyson's opinion. Both are Republicans.

    Judge John Arrowood, a Democrat, dissented. "Specifically, the majority misconstrues the plain language of the statute at issue, N.C. Gen. Stat. § 132-1.4A, in such a way that if allowed to stand it would foreclose members of the media from ever filing a successful petition for the release of any [custodial law enforcement agency] recording in the future," Arrowood wrote. "Because I believe this was never the intent of the statute and is not supported by the plain language of the statute, I dissent."

    The media outlets never asserted that they had a right to the recordings under state law, Arrowood argued. "Here, petitioners do not fall within any of the enumerated categories of persons entitled to disclosure as a matter of right," he wrote. "This, however, does not categorically bar petitioners from being able to seek, and possibly obtain, release of CLEA recordings."

    "Rather, petitioners must obtain a court order," Arrowood wrote. "That is precisely what petitioners have done here: because they were not entitled to disclosure as a matter of right, they petitioned the trial court ... in hopes of a favorable order."

    Arrowood targets his colleagues' interpretation of the state law regarding release of law enforcement recordings. "Most importantly and poignantly, ... the consequence of the majority's reasoning is dangerous: such an interpretation of N.C. Gen. Stat. § 132-1.4A would ensure that members of the media would never be allowed to petition the superior court for release of CLEA recordings, let alone obtain them via court order. I see no support in the statute for such a draconian result."

    The Raleigh News and Observer, WRAL, Greensboro News and Record, WXII, Burlington Times-News, and Carolina Public Press are among the plaintiffs seeking the recordings.

    They stem from controversy surrounding the Oct. 31, 2020, "I Am Change" march in Graham.

    "The organizers of the march secured a permit to march, but were not authorized to close and were instructed not to block the public streets of Graham for the march," Tyson wrote. "When marchers refused to clear an intersection of streets following multiple requests, GPD deployed [pepper spray] canisters to clear the street."

    Marchers moved to the Historic Alamance County Courthouse for speeches. "Before the speeches were concluded, GPD officers and sheriff's deputies discovered a gas-powered generator providing electricity for a sound system. The generator was operating within two feet of a gas container, in violation of the fire code," Tyson wrote. "Officers attempted to disconnect the generator, but attendees resisted the officers' efforts."

    "The event was declared to be unsafe, dispersal orders were issued, but went unheeded," Tyson added. "GPD officers and Alamance County Sheriff's deputies arrested 23 protesters."

    Arrowood's dissent entitles the media outlets to appeal the ruling to the N.C. Supreme Court.