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In re Custodial Law Enforcement Recording Sought

Court of Appeals of North Carolina

August 6, 2019

IN THE MATTER OF CUSTODIAL LAW ENFORCEMENT RECORDING SOUGHT BY CITY OF GREENSBORO

          Heard in the Court of Appeals 8 May 2019.

          Appeal by Plaintiff from order entered 23 February 2018 by Judge Susan Bray in Guilford County Superior Court Nos. 17-CvS-9423, 17-CvS-9539, 17-CvS-9540, 17-CvS-9673-74.

          Fox Rothschild LLP, by Patrick M. Kane and Kip David Nelson, and City of Greensboro Attorney's Office, by Rosetta Davidson Davis, for Petitioner-Appellant City of Greensboro.

          Rossabi Reardon Klein Spivey PLLC, by Gavin J. Reardon and Amiel J. Rossabi, for Other-Appellee Involved Greensboro Police Officers.

          Julius L. Chambers Center for Civil Rights, by Mark Dorosin and Elizabeth Haddix, ACLU of North Carolina Legal Foundation, by Christopher A. Brook, and Tin, Fulton, Walker & Owen, PLLC, by S. Luke Largess and Cheyenne N. Chambers, for Amici Curiae.

          DILLON, JUDGE.

         Petitioner City of Greensboro (the "City") appeals from the trial court's order denying its Motion to Modify Restrictions placed on Greensboro city council members, which allowed them to view certain recordings from body cameras ("body-cams") worn by Greensboro Police Department officers, but which limited their ability to discuss the recordings in a public setting. The City contends that the trial court's restrictions interfere with the city council members' fundamental responsibilities to their constituents and violate council members' First Amendment rights. After careful consideration, we affirm.

         I. Background

         This case arises from a 10 September 2016 incident in downtown Greensboro, resulting in the arrest of several individuals by Greensboro police officers (the "Officers"). The parties to this action are the City and the Officers.

         Video footage of the incident was recorded by the Officers' body-cams. The City petitioned the footage be made available to members of its City council to view.

         In January 2018, the trial court entered orders (the "Release Orders") allowing members of the City's governing council and certain other City officials to view the body-cam footage, but subject to a limited gag order, as follows: those City officials choosing to view the footage would not be allowed to discuss the footage except amongst themselves in the performance of their official duties. This Release Order further provided that any violation of the gag order would subject the offender to a fine of up to five hundred dollars ($500.00) and imprisonment of up to thirty (30) days. The Release Order, though, allowed the City Attorney to seek modification of the gag order in the future.

         The following month, in February 2018, the City moved to lift the gag order, to allow its officials to discuss the body-cam footage with their constituents and others. After a hearing on the matter, the trial court entered orders denied the City's motions for modification (the "Modification Denial Order").

         The City appealed.[1]

         II. Analysis

         On appeal, the City argues that the trial court committed error by refusing to ...


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