NC Appeals Court rules against media outlets seeking recordings of Duke basketball DWI stop | 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 ruled against a group of media outlets seeking law enforcement recordings of a November 2021 traffic stop involving two Duke basketball players, including Coach Mike Krzyzewski's grandson.

    That stop eventually led to a guilty plea of driving while impaired from Michael Savarino, Coach K's grandson. Savarino's passenger and Duke teammate, star player Paolo Banchero, initially faced a charge of aiding and abetting DWI. That charge was dismissed the day after Savarino's July 2022 plea.

    A group of media outlets - including the News and Observer, WRAL, WTVD, and WNCN - filed paperwork in December 2021, seeking the "release of all body cam footage, dashboard camera recordings, cell phone recordings, or any other recordings related to this incident," according to the Appeals Court opinion.

    Superior Court Judge Allen Baddour issued a January 2022 order approving release of the recordings. But Savarino's attorney appealed.

    "We cannot address the arguments on appeal from Savarino and Petitioners because we conclude the trial court did not have subject matter jurisdiction in this case," wrote Chief Judge Donna Stroud for the unanimous three-judge panel.

    No party in the case had raised the issue of subject-matter jurisdiction, but Stroud pointed to a February 2023 ruling in another case involving media requests for access to law enforcement recordings.

    In that decision, involving the April 2021 shooting death of Andrew Brown in Elizabeth City, a unanimous Appeals Court panel ruled that a group of media outlets had followed the wrong procedure when trying to gain access to law enforcement recordings.

    Rather than filling out a form provided by the state Administrative Office of the Courts, appellate judges ruled that media seeking footage related to the Brown case should have filed a "civil action" or lawsuit.

    "Here, Petitioners do not include any person depicted in the recording or a custodial law enforcement agency; Petitioners are media organizations," Stroud wrote. "There is no allegation the recording depicts serious bodily injury or death. Saravino [sic], who attempted to intervene, is a person who could petition for disclosure or release ... since he was depicted in the recording, ... but by attempting to intervene, he was seeking to prevent release to Petitioners, not to obtain disclosure or release himself."

    The court form, AOC-CV-270, did not give media outlets legal standing to seek release of the law enforcement recordings.

    "Since Petitioners used form AOC-CV-270 rather than file an 'ordinary civil action[,]' they did not have standing, and, thus, the trial court did not have subject matter jurisdiction," Stroud wrote. "Since the trial court ... lacked subject matter jurisdiction, its proceedings in this case were 'a nullity.'"

    Stroud and fellow Judges Chris Dillon and Fred Gore vacated the trial court order. That means the media outlets will not get access to the recordings.

    In the February case, Judge Jefferson Griffin focused on the state law covering a custodial law enforcement agency recording, also referred to as CLEAR.

    "Section 132-1.4A(g) states that anyone seeking general release of a CLEAR may 'file an action.' 'Action' is a term of art, defined as 'an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment or prevention of a public offense,'" Griffin wrote. "The plain meaning and use of the term 'action' means that our legislature intended for those seeking release under section 132-1.4A(g) to file an ordinary civil action, not a petition using an AOC form."

    Griffin compared the request for law enforcement recordings to a request for public records.

    "Access to public records is not ordinarily contested, but section 132-9 authorizes public record seekers to initiate an action when their request is denied," he wrote. "CLEARs by statute are not public records, are by default not to be released, and therefore proceedings for their release are by their very nature contested. It follows that section 132-1.4A(g) would require an action be filed to resolve a contested matter."

    "The plain language of N.C. Gen. Stat. § 132-1.4A(g) instructs those seeking general release of CLEARs to 'file an action,'" Griffin concluded.