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2019 Winter Spring.Indd A PUBLICATION OF THE SILHA CENTER FOR THE STUDY OF MEDIA ETHICS AND LAW | WINTER/SPRING 2019 Media Coalition Wins Legal Victory to Access Body Camera Video in Trial of Former Minneapolis Police Offi cer n April 9, 2019, Hennepin County, Minn. Fourth “critical incident,” such as “the use of deadly force by or against Judicial District Court Judge Kathryn Quaintance a Minneapolis police offi cer.” It was later reported by CNN on reversed an earlier ruling in which she had limited March 26, 2018 that the offi cers had turned their BWCs on and public and media access to key evidence in the trial off several times, as well as muting the cameras. Responding of former Minneapolis Police Offi cer Mohamed Offi cers Scott Aikins’ and Thomas Fahey’s BWCs recorded ONoor, who was found guilty on April 30 of thirddegree murder part of the aftermath of the shooting. Additionally, the AP and seconddegree manslaughter after shooting and killing reported there was no dash camera footage of the shooting or its 40yearold personal health coach Justine Damond in 2017. aftermath. Minnesota v. Noor, No. 27CR186859 (2019). The shooting of On July 26, 2017, The New York Times reported that the MPD Damond, an AustralianAmerican woman whose maiden name had changed its BWC policy. Whereas it previously included only was Ruszczyk and was soon to be married to her fi ancé, Don a limited list of situations in which BWCs must be activated, Damond, garnered international attention, prompting media and the policy was amended to include a list of specifi c situations transparency advocates to push for greater access to the trial, in which the cameras must be turned on, such as immediately as well as to photographs and police bodyworn camera (BWC) after the offi cers start responding to a 911 call or when a footage connected to the case. situation “becomes adversarial.” The policy change also codifi ed The incident began shortly after 11:30 p.m. on July 15, 2017 disciplinary measures for not activating BWCs, which could when Noor and fellow offi cer Matthew Harrity responded to include termination, according to the Times . a 911 call by Damond, who was reporting a possible assault On Sept. 11, 2017, the Minnesota Bureau of Criminal in an alley in Minneapolis’ Fulton neighborhood, as reported Apprehension (BCA) announced that it had completed its by CNN and the Minneapolis Star Tribune the following day. investigation into the shooting, according to WCCOTV, the Twin Within minutes, Noor and Harrity arrived in a police car outside Cities’ CBS affi liate, the following day. Damond’s home, according to Minnesota Public Radio (MPR) On March 20, 2018, Hennepin County, Minn. Attorney Mike News on July 16, 2017. The Star Tribune reported that witnesses Freeman fi led a complaint against Noor in the Fourth Judicial said that Damond had walked towards the vehicle in her District Court. The original complaint included one count of pajamas, approaching the driver’s side door. thirddegree murder, a felony that carried a maximum sentence In an interview with investigators, who later corroborated of 25 years in prison and a minimum sentence of three years. The the details of the media reports, Harrity said he was startled complaint argued that Noor “cause[d] the death of [Damond] by by a “loud sound,” which, allegedly, was Damond slapping or perpetrating an act eminently dangerous to others and evincing thumping the back of the police SUV, though prosecutors refuted a depraved mind, without regard for human life, while using a this allegation during the ensuing jury trial, which began on April fi rearm.” MPR News reported on March 20, 2018 that it appeared 1, 2019. Moments later, Noor, who was in the passenger seat, to be the fi rst time a Minneapolis offi cer had been charged with allegedly pulled his gun and shot across Harrity, who was in the murder in a fatal shooting while on duty, citing the acquittal driver’s seat, through the driver’s side window, hitting Damond in of St. Anthony offi cer Jeronimo Yanez, who was charged with the abdomen. Damond, who was not carrying a weapon, died at manslaughter for shooting and killing Philando Castile during a the scene. Falcon Heights, Minn. traffi c stop in 2017. In the ensuing months, several media outlets reported Count II was seconddegree manslaughter, which carried that details remained largely unclear, with investigators and a maximum sentence of 10 years in prison and/or a $20,000 prosecutors relying almost solely on interviews to determine fi ne. The complaint contended that Noor “caused the death of what transpired. The Associated Press (AP) reported on Sept. [Damond] by his culpable negligence,” meaning he “created an 18, 2017 that although Noor and Harrity had eventually turned on unreasonable risk and consciously took a chance of causing their BWCs after the shooting, they had missed the most pivotal death or great bodily harm to [Damond] while using a fi rearm.” moments, despite the Minneapolis Police Department’s (MPD) The complaint also included an arrest warrant to be served BWC policy requiring the offi cers to activate the cameras in a Noor, continued on page 3 Inside This Issue Winter/Spring 2019: Volume 24, No. 2 1 Media Coalition Wins Legal Victory to Access Body Camera 27 Actions by Media Outlets and Companies Raise Ethical Video in Trial of Former Minneapolis Police Offi cer Questions Cover Story Ethics 8 WikiLeaks Founder Julian Assange Arrested on Computer 32 Google Faces Renewed Concerns Regarding Data Privacy in Hacking Charges, Fueling Concerns Over Press Freedom the U.S. and Abroad First Amendment Data Privacy 10 Department of Justice Continues Mulling Policies 35 Facebook Faces Continued Scrutiny Over Data Privacy and Regarding Jailing, Subpoenaing, and Searching U.S. Cambridge Analytica Scandal Journalists Data Privacy First Amendment 37 The Reporters Committee for Freedom of the Press 13 Justice Thomas Calls for Supreme Court to Reconsider the Prevails in a FOIA Lawsuit Regarding FBI Impersonation of Actual Malice Standard Documentary Filmmakers Supreme Court News FOIA 14 Federal Judge Dismisses Defamation Lawsuit Against 39 Journalists and Other Travelers Targeted at U.S. Borders, BuzzFeed News ; News Organizations Face Signifi cant Creating More Confusion and Lawsuits Defamation Lawsuits and Settlements Searches and Seizures Defamation 42 Federal Judge Strikes Down Iowa’s “Ag-Gag” Law; Coalition 20 Journalists in the U.S. and Abroad Continue to Face of Animal Rights Groups Challenges Nation’s Oldest “Ag- Violence and Imprisonment; U.S. Court Holds Syria Liable Gag” Law for Role in Journalist’s 2012 Death Ag-Gag Laws Reporters in Danger 45 2019 Spring Forum Tackles Balancing Freedom of the Press 24 Fourth Circuit and Western District of Wisconsin Rule and the Right to a Fair Trial Public Offi cials Violated the First Amendment By Blocking Silha Center Events Social Media Users First Amendment SILHA C ENTER S TAFF JANE E. KIRTLEY SILHA C ENTER D IRECTOR AND S ILHA P ROFESSOR OF M EDIA E THICS AND L AW SCOTT M EMMEL SILHA BULLETIN E DITOR KIRSTEN N ORDSTROM SILHA R ESEARCH A SSISTANT SARAH W ILEY SILHA R ESEARCH A SSISTANT ELAINE H ARGROVE SILHA C ENTER S TAFF 2 Noor, continued from page 1 handled press coverage differently in the trial of Jake Patterson, against Noor. The full complaint and warrant are available online who was accused of kidnapping teenager Jayme Closs and killing at: https://www.mprnews.org/story/2018/03/20/noorbookedjail her parents in the winter of 2018/2019. The court “went as far as ruszczyk#docs. allowing news organizations to livestream audio and video from On Nov. 30, 2018, the Star Tribune reported that prosecutors the courtroom,” according to MPR News. intended to add a seconddegree murder count in addition to In response to Quaintance’s order, on March 29, Ballard the existing charges, reasoning that Noor shot Damond from Spahr LLP attorney Leita Walker wrote a letter to Bernhardson close range and with “tragic accuracy” past Harrity and through on behalf of a coalition of media organizations that included a “narrow space of the open driver’s window.” On December 11, the Star Tribune Media Company, LLC, CBS Broadcasting Inc., the prosecution, after a series of motions and other proceedings, MPR, TEGNA, Inc., and Fox/UTV Holdings, LLC (collectively formally fi led an amended complaint, which included the second “Coalition”). The letter fi rst stated the Coalition was “extremely degree murder charge. The amended complaint contended that concerned about what it anticipates to be woefully inadequate Noor “caused the death of [Damond] with intent to effect the press and public access to the Noor trial.” death of that person or another, with a fi rearm.” The felony charge carried a “I appreciate the concerns that are being COVER STORY maximum sentence of 40 years in prison. raised [in cases like this], but it seems to On Sept. 19, 2018, MPR News reported me that [the courts] are overlooking the that Hennepin County prosecutors wanted the court to prohibit the disclosure of some evidence in the case, fact that the public and the press have including grand jury testimony, performance review documents, a First Amendment right of access to a and BWC video of the aftermath of the shooting, reasoning criminal proceeding like this one.” that it was confi dential data under the Minnesota Government Data Practices Act (MGDPA). Minn. Stat. § 13.01 et seq. The prosecutor’s motion is available online at http://mncourts. — Jane Kirtley, gov/mncourtsgov/media/HighProfi leCases/27CR186859/ Silha Center Director and Silha Professor of Memo091918.pdf. Media Ethics and Law On March 29, 2019, the Star Tribune reported that during a pretrial hearing on the same day, Judge Quaintance had announced several restrictions on public and media access to Second, the letter contended that the court “did not the forthcoming jury trial.
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