Graham challenges media access to law enforcement recordings from 2020 protest | Eastern North Carolina Now

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

    On the same day that media outlets urged the N.C. Supreme Court to take up two cases involving access to law enforcement recordings, the city of Graham asked the court to rule against media access to recordings in a third case.

    A brief filed Tuesday asks the state's highest court to affirm a split December 2022 Appeals Court decision favoring Graham. The 2-1 ruling blocked media access to recordings from an October 2020 protest.

    "Passed in 2016, N.C.G.S. § 131-1.4A presents an orderly process by which individuals may seek Custodial Law Enforcement Agency Recordings ("CLEAR"). The North Carolina General Assembly crafted a process by which the judiciary regulates the release of CLEAR and enumerated factors for judges to use as they evaluate whether release is appropriate," Graham's lawyers wrote.

    "Despite the statute's linear and sequential structures, with evident distinctions provided for the differing categories of individuals seeking CLEAR, the process enacted by the North Carolina legislature became distorted and misused," the brief continued. "Zealous media organizations abused the Legislature's clear intent by lodging omnibus requests for CLEAR footage. This resulted in a process not contemplated by the statute: law enforcement and judges doing the media's job for the media."

    Media outlets seeking access to Graham's footage are the "appellants" in the case.

    "If the Appellant's construction of this statute was correct, it would mean that the Legislature tasked law enforcement agencies and the judiciary with the job of reviewing and culling vast swaths of CLEAR to determine which footage was newsworthy for use by media companies," Graham's lawyers wrote. "Appellant's interpretation tasked the trial judiciary and law enforcement agencies with the tedious and time-consuming job of reviewing hundreds of hours of CLEAR to extract portions suitable for the media's use."

    "It was law enforcement's obligation, according to Appellants, to identify and explain what CLEAR should not be produced," Graham's lawyers argued. "[T]he statute has been turned on its head."

    Graham supports the Appeals Court's December 2022 decision. "The North Carolina Court of Appeals rectified the statutory perversions in part, by interpreting N.C.G.S. § 132-1.4A in the fashion it was written - a linear, sequential procedure that allows petitioners to focus their requests on the material they actually want and why, keeping the burden with petitioners, not with the judiciary and law enforcement."

    The city faulted a trial judge's earlier decision to release the recordings to media outlets. "[T]he failure to follow the statutory process itself adversely effected the burdens of proof - shifting everything onto already overtaxed law enforcement agencies and the trial court," according to Graham's brief. "The trial court turned the evidentiary burdens of the statute upside down - charging law enforcement to join the court in reviewing dozens of hours of footage to determine what should not be produced, and concluding that despite finding a likelihood of harm occasioned by the release, that the trial court lacked authority to place any conditions or restrictions on the release."


    The brief also cited the key issue in the other two cases now on appeal at the N.C. Supreme Court. Those cases deal with law enforcement recordings tied to a fatal shooting in Elizabeth City and a high-profile drunk driving stop in Orange County. Like the Appeals Court judges who decided both of those cases, Graham's lawyers argued that media outlets failed to follow the proper procedure to secure access to the CLEAR recordings.

    Media outlets seeking the Graham recordings will have a chance to respond in writing to the city's legal arguments. The N.C. Supreme Court has not yet scheduled the case for oral arguments.