A King County judge revised his ruling from last week, ordering Friday that either he or a special master first will conduct a closed-door review of five Seattle news outlets’ unpublished protest photos and videos before deciding whether any should be turned over to Seattle police for an ongoing criminal investigation.
Superior Court Judge Nelson Lee said he added the provision for the review of the news images — taken during a protest May 30 downtown by journalists for The Seattle Times and TV stations KIRO, KING, KOMO and KCPQ — after grappling with his July 23 oral ruling that the media outlets must comply with a police subpoena.
Despite the revisions, Seattle Times Executive Editor Michele Matassa Flores said the media parties to the case are “disappointed with Judge Lee’s ruling and we will be filing an appeal.
“While we appreciate the judge’s addition of an intermediary — possibly himself — to review the material and select what to hand to the police, we strongly believe this decision poses a risk to the independence of the media and to the safety of photojournalists,” Matassa Flores said.
Police contend the raw news photos and footage, taken during a 1 1/2-hour period when violence erupted during the protests, may help identify several suspects who torched five Seattle Police Department vehicles and stole two police guns.
The judge’s ruling last week that the media had to turn over the images drew widespread criticism from national civil rights and press freedom groups, local and national news organizations and several Seattle City Council members, among others.
Lee’s final written order, entered Friday after hearings about it spanned parts of two days, gives media outlets 21 days to appeal and obtain a stay to his order. If they don’t, the news outlets must turn over all unpublished photos and video footage captured by their photojournalists’ news cameras between 3:30 and 5 p.m. on May 30, in the area between Olive Way and Pike Street, from Fourth to Sixth avenues.
The court estimates the private review will take up to 10 days, with either the judge or a special master to determine if any images depict individuals involved in the arsons and thefts under investigation, according to the order. Images meeting such criteria would be given to police, which could use them only for the arson and theft cases.
The review also could determine “nothing gets turned over to the Seattle Police Department,” Lee said, explaining he aimed “to add another layer of scrutiny” to allay concerns about government intrusion on free speech rights.
Eric Stahl, a lawyer for the media groups, raised no objections with the review, but told the judge: “My clients still feel the decision is wrong … and could put journalists on the ground at risk.”
The May 30 protests in downtown Seattle included nonviolent demonstrations with hundreds of people protesting the killing of George Floyd by Minneapolis police earlier that week. But as the day wore on, the demonstrations disintegrated into violence.
Police clashed with protesters, unleashing pepper-spray, flash-bang grenades and other crowd-control weapons. Vandals smashed store windows, looted businesses and heavily damaged six police vehicles — breaking windows and removing equipment before dousing five of the vehicles with an accelerant and setting them ablaze, according to a police affidavit and other documents.
A loaded Glock 43 semi-automatic pistol and a loaded Colt M4 carbine rifle with a suppressor remain missing, the SPD affidavit states. Police have arrested two people stemming from the thefts and arson, and partially identified others based on available images. Seattle police Det. Mike Magan testified at a previous hearing that he and other officers put in more than 1,000 hours combined investigating the crimes, but the investigation hit a dead end, leading police to obtain the subpoena.
The media groups argued Washington’s shield law, which generally prevents authorities from obtaining journalists’ unpublished materials, protected the images from subpoena. They also contended police didn’t exhaust all alternatives necessary to meet exceptions to the law.
During Stahl’s questioning of Magan, the detective acknowledged police hadn’t made a direct public plea for help to identify the suspects with the photos already available, and Magan testified he had not reviewed all 69 protest images published in a Seattle Times online photo gallery.
Magan testified again on that point Friday, backtracking from his earlier testimony by saying he had, in fact, reviewed all images in the gallery before seeking a subpoena. The detective told the judge he misunderstood Stahl’s questioning during the previous hearing. The judge accepted the explanation, deeming Magan a credible witness despite Stahl’s objections the detective had contradicted himself.
Lee generally has sided with case arguments from SPD’s attorney, Brian Esler, who said the investigation’s unique circumstances passed the tests for an exception to the shield law. Among his reasons, Esler cited a “compelling public interest” that outweighed press protections existed for obtaining the news images to help police apprehend dangerous suspects and missing weapons.
After Lee issued his ruling last week, civil rights advocates, press groups and others quickly denounced it. The American Civil Liberties Union of Washington said the decision “threatens the independence of the media,” and the National Press Photographers Association and Press Freedom Defense Fund jointly said the ruling “unnecessarily pits the free press against the public they report for, and forces them — against their will — to aid the government they are obligated to hold accountable through their reporting.”
Matassa Flores, the Times’ editor, wrote in an editor’s note to readers this week that the newspaper’s opposition to the police subpoena is based on a principled stand for protecting an independent press, not criminals.
“Our reasons have nothing to do with the parties involved,” Matassa Flores wrote. “They have everything to do with our role — the role of journalism — in society. We must stand independent of those we cover.”
Lee first signaled during a hearing early Thursday that he’d revise his oral ruling to include the closed-door review after grappling with the fallout of his ruling for days.
“This case has obviously weighed heavily on me,” Lee said. “… From the onset, this court has been attempting to balance the protections afforded to the free media against the concerns for public safety.”
Still, Lee ruled the investigation qualified as a rare exception to the shield statute, noting the case marked the first time a court interpreted the law’s application for a criminal case since Washington lawmakers passed it in 2007. The judge said the investigation’s unique circumstances combined with his narrowly tailored order gave him assurances the ruling would not “open a stream of cases” where police subpoena the news media.