The fight over access to video of police shootings is nothing new. The news media have always wanted to see the best evidence when there's a public controversy, and as more and more police departments integrate dash cams and body cams into their operations, video evidence becomes increasingly important.
The fight took an unusual turn in a Ninth Circuit case recently. In Mendez v. City of Gardena, a federal district judge found that the news media had a right to see the video in a case involving the shooting death of a (wrongly identified, it turned out) suspect in a bicycle theft case. The lawsuit seeking access was brought by the Los Angeles Times, The Associated Press, and Bloomberg. The judge ruled that the right of access was so clear that there was no valid reason to stay his finding, and so the video was released. On appeal, the City of Gardena has asked the Ninth Circuit to rule that the release of such information should always be stayed pending appeal.
In the amicus brief, the Reporters Committee, joined by 26 other news organizations, argued that the current standard is appropriate:
The district court in this case correctly followed U.S. Supreme Court precedent in applying a four-part test to determine whether to grant the City’s request for a stay that examined: (1) the likelihood that the City would succeed on the merits on appeal, (2) the possibility of irreparable injury to the parties requesting the stay, (3) the possibility of substantial injury to others, and (4) the public’s interests in secrecy and disclosure. Order at 13. In short, before rejecting the City’s request for a post-dismissal stay of its unsealing order, the district court considered the interests of all parties, including the City, other interested persons, and the public at large. Id.
An automatic-stay regime in cases like this one would upend the flexible nature of this equitable remedy, converting a stay from a remedy available only through the exercise of a court’s measured discretion into a predetermined outcome that disregards the competing interests at stake. See Meredith v. City of Winter Haven, 320 U.S. 228, 235 (1943) (“An appeal to the equity jurisdiction conferred on federal district courts is an appeal to the sound discretion which guides the determinations of courts of equity.”). It would also undermine a key feature of this equitable remedy: a judge’s discretion in issuing a stay must necessarily be concerned with how such a stay would affect the public.
In examining the four factors, the brief emphasized that the public's interest was properly given weight:
The fundamental interest in public access to court records and proceedings springs from the fact that “a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.” Mills v. Alabama, 384 U.S. 214, 218 (1966). First Amendment freedoms “share a common core purpose of assuring freedom of communication on matters relating to the functioning of government.” Richmond Newspapers, 448 U.S. at 575 (plurality opinion). In short, access allows journalists and ordinary citizens to keep a “watchful eye on the workings of public agencies.” Kamakana, 447 F.3d at 1178 (internal quotation marks omitted); see also Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 386 n.15 (1979) (“[I]n some civil cases the public interest in access, and the salutary effect of publicity, may be as strong as, or stronger than, in most criminal cases.”).
Furthermore, an automatic stay of release would ill serve the public.
An automatic stay would fail to account for the paramount importance of open and transparent government in our constitutional system. That is, an automatic stay would impede not only the judiciary’s role as “guardian of the free press,” but also the press’s role as “guardian of the public interest.” Leigh v. Salazar, 677 F.3d 892, 900 (9th Cir. 2012). “The business of the press . . . is the promotion of truth regarding public matters by furnishing the basis for an understanding of them.” Associated Press v. United States, 326 U.S. 1, 28 (1945) (Frankfurter, J., concurring). This case concerns not only a public matter, but a public matter that is particularly relevant at this moment in our history. As the City itself states, “The simple fact is that our communities have been rocked by violence over the last several months as incomplete and evocative videos have been released, often before the entire facts of the case are known.” Appellant’s Opening Brief at 20. Thus, it is the press’s role and duty to encourage discussion on the issue of officer-civilian relations and related topics, and disseminating information on these issues is part and parcel of this duty.
Somewhat surprisingly, the City also argued that it should have been able to keep the videos sealed and unavailable to the public because such secrecy was a motivation for it to settle the case.
The City argues that it paid “a premium”—namely, the $4.7 million settlement figure—to keep the videos confidential. Appellant’s Opening Brief at 7; Order at 12. But, as the district court recognized, this sort of consideration does not constitute a compelling reason justifying confidentiality. “In general, ‘compelling reasons’ sufficient to outweigh the public’s interest in disclosure and justify sealing court records exist when such ‘court files might have become a vehicle for improper purposes,’ such as the use of records to gratify spite, promote public scandal, circulate libelous statements, or release trade secrets.” Kamakana, 447 F.3d at 1179 (quoting Nixon v. Warner Commc’ns, Inc. 435 U.S. 589, 598 (1978)). Getting one’s money’s worth from a bargain purposely designed to use public money to avoid public accountability cannot possibly be treated as a compelling interest under this standard.
The city, the amicus brief argued, benefitted from improper secrecy already, and was properly denied the chance to maintain the secrecy in a case of great public interest:
The City also ignores the fact that the videos remained under seal, without the City demonstrating that such sealing was justified, far longer than they should have. There are two standards that a court may invoke in determining whether sealing a court record is warranted. During discovery, the relevant standard is whether “good cause” exists to seal the information; this is done by “balancing the needs for discovery against the need for confidentiality.” Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010) (internal quotation marks omitted). “When discovery material is filed with the court, however, its status changes.” Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1134 (9th Cir. 2003). The new standard — a much higher burden for the party seeking confidentiality — is the “compelling reasons” standard applied by the district court in this case. Pintos, 605 F.3d at 678; see Order at 11.
Thus, once the sealed material is filed with the court, it can remain sealed only by satisfying the higher burden. See Kamakana, 447 F.3d at 1180 (“[A] ‘good cause’ showing alone will not suffice to fulfill the ‘compelling reasons’ standard that a party must meet to rebut the presumption of access to dispositive pleadings and attachments.”). The district court considered this issue thoroughly when the media organizations sought to have the disputed videos released. Critically, the dashcam footage first entered the record in late January 2015 as part of the plaintiffs’ opposition to the defendants’ motion for summary judgment. Order at 6. This is the point at which the higher standard to justify sealing arose.
The appeal has been fully briefed, and will be argued in the next few months.