Greensboro asks N.C. Supreme Court to lift gag order
On Sept. 11, the City of Greensboro’s attorneys filed their second appeal of the gag order that prevents from discussing the police body camera videos of Zared Jones’ 2016 arrest.
In December 2017, the city filed two petitions for the release of that footage to the mayor and council In January 2018, the trial court granted the petition, but with restrictions, including a broad one against discussing the footage the public.
In January 2018, the trial court granted petitions but placed restrictions on the Greensboro City Council, including a broad one against discussing the footage with the public in March of that year.
On Aug. 6, Court of Appeals ruled “gag order does not violate the City’s First Amendment rights” and that it “does not impermissibly infringe on the city council’s ability to perform its official duties,” adding that “the city council members have no right to the information in the first place, as the court “could have denied the request to the view the body-cam footage altogether.”
Under North Carolina’s police body-worn camera statute § 132-1.4., enacted in 2016, police bodycam footage is not a public record, and a city council or county board of commissioners first have to get permission from a Superior Court judge to review the footage. The judge has broad discretion to place stipulations on the request.
Page two of the appeal to the N.C. Supreme Court describes the gag order:
“. . .. the superior court found the City to have shown a compelling need for access and released the footage to the City Council. But, purporting to exercise its ‘discretion’ under the statute, the court also issued a gag order preventing the Council members from discussing what they learned from the footage with their constituents, at all, forever. “
That appeal identifies several key issues, including “accusations of police misconduct” and the constitutional right to regulate “the internal government and the police,” as well that of “the people’s representatives to speak on precisely those issues.”
Page 27 includes two sentences address broad aspects of the case, one stating that where police bodycams “were designed to provide answers for the public,” the opinion from the Court of Appeals “has simply created more questions.” Another states that “Elected officials have not only the right to speak but also an obligation to do so.”
This passage on page nine speaks to the concern, expressed by the mayor and others, that the gag order puts them at risk if they even watch the footage (as they’re allowed to do), as they might unintentionally divulge what they’ve seen. It also refers to Bray’s censure of attorney Holt for describing alleged police misconduct in his email to the city council.
The entire document can be read here.
Council members made the decision not to watch the footage while subject to the gag order, to avoid a situation in which they had a duty to speak to the public and yet would be held in criminal contempt if they did so. Now, with the law established by the Court of Appeals opinion (granting the trial court unfettered discretion to issue a gag order without appropriate First Amendment analysis), the Council remains gagged and cannot address an issue of ongoing public important.
This discretion afforded by the Court of Appeals also gives insufficient weight to the interests of . . . the people of the State of North Carolina, who “have the inherent, sole, and exclusive right of regulating the internal government and police thereof.” N.C. Const. art. I, § 3. Restrictions on an elected official’s ability to perform her duties implicate the interests of two distinct parties: the official herself and the people, with their attendant right “to be meaningfully represented by their elected officials.” Citizens in this State have a right to demand that their elected representatives be equipped to talk about issues of public concern such as police conduct.
Unless the Court of Appeals opinion is vacated, a superior court judge will be able to impose a content-based, prior restraint on speech without satisfying strict scrutiny—in fact, without applying the First Amendment at all. The implications of this decision are severe.
The appeal drew praise from one longtime critic of the city and its policies and police, retired attorney Lewis Pitts, who called it “a legal masterpiece extolling democratic self-government” that, in appropriate constitutional terms, “bashes both Judge Bray and the Court of Appeals for essentially undertaking no First Amendment analysis when the entire case is about the linkage of the First Amendment rights of council and the people and how those rights are fundamental to democratic self-government.”
Pitts also commented this excerpt from page nine:
“The City’s fears of criminal sanctions were well-founded. After the Court of Appeals issued its decision, the trial court began disciplinary proceedings against an attorney who represented some of the arrestees from the incident, because the attorney had emailed other authorized viewers his impression of what the footage shows.”
Pitts said this passage was relevant to what he called “the highly improper action of Judge Bray when she initiated disciplinary charges against civil rights attorney Graham Holt. “