State’s top court orders new reviews of two high-profile media access disputes

A state Supreme Court decision in May involving media access to law enforcement video recordings could help resolve two similar high-profile legal disputes dating back to 2021.

One involves the shooting death of Andrew Brown in Elizabeth City. The other focuses on a driving while impaired traffic stop of two Duke basketball players in Orange County.

In separate orders Friday, the state’s high court agreed that the state Appeals Court should revisit decisions blocking media access to law enforcement recordings connected to the Brown shooting and Duke basketball DWI traffic stop. In both cases, appellate judges ruled that media outlets had followed the wrong procedure in seeking access to the recordings.

The state Supreme Court issued a 5-2 ruling on May 23 rejecting a similar Appeals Court decision in a case involving law enforcement recordings of a protest in Graham. The Supreme Court majority agreed that media outlets could use a petition developed by the Administrative Office of the Courts to seek access to the recordings.

“[A]nyone may seek copies of law enforcement recordings under the provision in N.C.G.S. § 132-1.4A invoked by petitioners, so the trial court had no reason to question their eligibility to proceed,” Justice Trey Allen wrote in the Graham case. “Moreover, we do not accept the Graham Police Department’s argument to this Court that the statute required petitioners to file a civil action instead of a petition.”

The decision prompted a rare split among the court’s five Republican justices. Three of the Republicans joined with their two Democratic colleagues to rule that media outlets did not have to file a lawsuit to gain access to law enforcement recordings.

Two Republican justices criticized that decision. “The majority has, under the guise of statutory construction, improperly amended N.C.G.S. § 132-1.4A(g) to allow for the initiation of proceedings by the filing of the petition mentioned in subsection (f) of the statute,” wrote Justice Phil Berger Jr., joined by Chief Justice Paul Newby.

“But the statute is clear — two distinct processes exist — one for those that the legislature deemed presumptively authorized to receive the video evidence and another for those who are not so authorized,” Berger added. The law’s provisions “clearly and unambiguously establish separate mechanisms for obtaining video evidence from law enforcement, yet the majority eliminates these distinctions by reading ambiguity into a statute where none exists.”

The media outlets should have filed a civil suit, Berger argued. “Because appellants failed to file a complaint necessary to properly institute an action as required by subsection (g), the trial court lacked subject matter jurisdiction over appellants’ petition,” he wrote.

Now the Supreme Court is calling on appellate judges to apply the May ruling to other active disputes over law enforcement recordings.

Andrew Brown’s shooting death

A unanimous state Court of Appeals panel ruled in February 2023 against media outlets seeking law enforcement recordings linked to Brown’s April 2021 shooting death in Elizabeth City.

Appellate judges agreed the media outlets should have filed a lawsuit to seek access to “custodial law enforcement agency recordings.” The outlets instead had filed paperwork provided by the state office overseeing NC courts. The ruling upheld a November 2021 decision from Superior Court Judge Jerry Tillett.

“Our review of the relevant statutory scheme shows that our legislature intended two different procedures for individuals seeking release of custodial law enforcement recordings: an expedited petition process for certain enumerated individuals, and an ordinary civil action for all others. We hold that Judge Tillett properly dismissed Petitioners’ petition for lack of standing because they failed to ‘file an action’ as required” by state law, wrote Judge Jefferson Griffin.

The 20 media plaintiffs featured national outlets CNN, New York Times, and USA Today, along with the state’s largest print and broadcast media. They first sought access to the recordings within five days of Brown’s shooting death. Brown had “suffered fatal gunshots during the attempted service of arrest and search warrants,” Griffin wrote.

In May 2021, Judge Jeffery Foster first rejected the media outlets’ request. “In balancing the interest of release to the public and the media against the State’s interest, Judge Foster found the State’s interest weighed more heavily because ‘[r]elease would create a serious threat to the fair[] and orderly administration of justice’ and there was a need to protect the State’s ‘active internal or criminal investigation,’” Griffin explained.

That same month, the Pasquotank County district attorney announced he would bring no charges in connection with Brown’s shooting. Media outlets then asked again for access to the recordings. Tillett considered their request in September 2021.

Appellate judges agreed with Tillett that the media outlets failed to follow the proper procedure. They should have “filed an action,” rather than use a petition form provided by the state Administrative Office of the Courts.

“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.

Judges John Tyson and Jeff Carpenter joined his decision.

Duke basketball DWI traffic stop

Former Duke basketball coach Mike Krzyzewski’s grandson urged the state Supreme Court in June 2023 to reject a case involving media access to law enforcement recordings. The recordings are tied to a traffic stop of two Duke basketball players that led to drunk-driving charges.

Michael Savarino’s lawyers filed paperwork asking justices to leave a state Court of Appeals ruling intact.

“The decision below neither poses questions of major significance to the jurisprudence of the state, nor does it raise an issue of significant public interest,” attorney Cyrus Griswold wrote.

Savarino is Coach K’s grandson. He was a Duke player in November 2021 when he and Duke star Paolo Banchero faced a traffic stop in Orange County. Authorities charged Savarino with driving while impaired. Banchero faced charges of aiding and abetting DWI.

Savarino pleaded guilty to DWI in July 2022. Authorities dismissed the charges against Banchero the following day.

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 an Appeals Court opinion in the case.

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

A unanimous Appeals Court panel ruled against the media outlets in April 2023. Chief Judge Donna Stroud cited as precedent the court’s two-month-old ruling in the Brown case from Elizabeth City.

In both cases, media outlets used a form developed by the state Administrative Office of the Courts to seek access to recordings. Appellate judges ruled that the media outlets should have filed civil suits instead.

A media coalition petitioned the state Supreme Court in May 2023 to take both cases. Media lawyers argued that the state’s highest court could “untangle the jurisprudential morass” created by lower court decisions in the two cases.

“[T]he AOC’s form-driven process for seeking release pursuant to N.C. Gen. Stat.§ 132-1.4A(g) has been used hundreds of times since 2016,” a media coalition legal brief noted. “[C]onsequently, the Court of Appeals’ ruling has perpetuated significant confusion and uncertainty for law enforcement, the courts, and the public (including the members of the Media Coalition).”

“The Media Coalition respectfully requests that this Honorable Court resolve the uncertainty and confusion resulting from the Court of Appeals’ decisions by granting this Petition for Discretionary Review and exercising its general supervisory authority to promote the expeditious administration of justice regarding the release of law enforcement recordings.”

Savarino’s court filing rejected media arguments. “N.C. Gen. Stat. S 132-1.4A(b) provides that recordings are neither ‘public records’ nor ‘personnel records.’ The decision by the Court of Appeals in no way alters, expands, or otherwise changes the definition of ‘custodial law enforcement recordings’ that have been determined to be neither ‘public records’ nor ‘personnel records’ under N.C. Gen. Stat. {132-1.4A(b),” Griswold wrote.

“The decision by the Court of Appeals simply requires a member of the public who is not depicted in such a recording, and who is also seeking release of such a recording, to follow the procedure for release laid out in clear, unambiguous language by N.C. Gen. Stat. S 132-1..4A(g),” he added.

The media coalition “is not contending that the Court of Appeals employed incorrect legal principles in reaching its decision.” Instead the coalition “takes issue with the Court’s application of settled legal principles of statutory construction,” Griswold wrote.