The Honorable Nelson K. H. Lee 1 2 3 4 5 6 7 SUPERIOR COURT OF THE STATE OF WASHINGTON KING COUNTY 8 STATE OF WASHINGTON SW No. 20-0-61692-6 9 10 COUNTY OF KING NOTICE OF APPEAL TO WASHINGTON SUPREME COURT 11 Clerk’s Action Required 12 13 14 15 16 17 18 19 20 The Seattle Times Co. (“Times”), Sinclair Media of Seattle, LLC (“KOMO-4”), KING Broadcasting Company (“KING-5”), KIRO TV, Inc. (“KIRO-7”) and Fox Television Stations, LLC (“KCPQ-13”) (collectively, “News Media”), seek review by the Washington Supreme Court of the final Order Enforcing Subpoena and Denying News Media’s Objections to SPD’s Subpoena Duces Tecum (including the Findings of Fact and Conclusions of Law contained therein), entered on July 31, 2020. A copy of the Order is attached to this notice. DATED this 11th day of August, 2020. Davis Wright Tremaine LLP Attorneys for Seattle Times Co., Sinclair Media of Seattle, LLC, KING Broadcasting Company, KIRO TV, Inc. and Fox Television Stations, LLC 21 22 23 24 By /s/Eric M. Stahl Eric M. Stahl, WSBA #27619 25 26 27 NOTICE OF APPEAL TO SUPREME COURT - 1 4815-6227-5015v.2 0104877-000041 Davis Wright Tremaine LLP L AW O FFICE S 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 206.622.3150 main · 206.757.7700 fax 1 Counsel for Seattle Police Department is: 2 3 4 Brian W. Esler, WSBA #22168 Miller Nash Graham & Dunn LLP Pier 70, 2801 Alaskan Way, Suite 300 Seattle, WA 98121-1128 (206) 624-8300 5 6 7 8 9 10 11 Gary Ernsdorff, WSBA #22461 King County Prosecutor’s Office 516 3rd Avenue, Suite W554 Seattle, WA 98104-2390 (206) 477-1987 Cherie Getchell, WSBA #49768 Seattle City Attorney’s Office 610 5th Avenue Seattle, WA 98104-1900 (206) 727-8805 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 NOTICE OF APPEAL TO SUPREME COURT - 2 4815-6227-5015v.2 0104877-000041 Davis Wright Tremaine LLP L AW O FFICE S 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 206.622.3150 main · 206.757.7700 fax DECLARATION OF SERVICE 1 2 The undersigned, hereby declares under the laws of the State of Washington, that on this 3 day he caused to be served, a copy of the foregoing document on the following counsel of record 4 in the manner indicated: 5 6 7 8 9 Brian W. Esler Miller Nash Graham & Dunn LLP Pier 70, 2801 Alaskan Way, Suite 300 Seattle, WA 98121-1128 brian.esler@millernash.com nick.valera@millernash.com Gill.Fadaie@millernash.com 10 Gary Ernsdorff King County Prosecutor’s Office 11 516 3rd Avenue, Suite W554 Seattle, WA 98104-2390 12 Gary.ernsdorff@kingcounty.gov 13 Cherie Getchell 14 Seattle City Attorney’s Office 610 5th Avenue 15 Seattle, WA 98104-1900 Cherie.getchell2@seattle.gov 16 17 [X] Via First Class Mail [ ] Via Overnight Mail [X] Via Email [ ] Via Messenger [X] Via First Class Mail [ ] Via Overnight Mail [X] Via Email [ ] Via Messenger [X] Via First Class Mail [ ] Via Overnight Mail [X] Via Email [ ] Via Messenger DATED this 11th day of August, 2020, at Seattle, Washington. 18 19 /s/Eric M. Stahl Eric M. Stahl, WSBA #27619 20 21 22 23 24 25 26 27 NOTICE OF APPEAL TO SUPREME COURT - 3 4815-6227-5015v.2 0104877-000041 Davis Wright Tremaine LLP L AW O FFICE S 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 206.622.3150 main · 206.757.7700 fax ORDER IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING STATE OF WASHINGTON SW No. 20-0-616926 ORDER ENFORCING SUBPOENA AND DENYING NEWS COUNTY OF KING OBJECTIONS TO SUBPOENA DUCES TECUM This matter arises out of an application by the City of Seattle?s Police Department for a search warrant to obtain evidence for its investigation of certain felonies that were committed on May 30, 2020, to wit the theft of ?ve ?rearms from SPD vehicles, and the arson of six SPD vehicles. Because SPD seeks this evidence from certain media organizations, 2(f) required issuance of a subpoena duces tecum, rather than atypical search warrant. On June 18, 2020, SPD presented a proposed subpoena, along with a supporting Af?davit of Detective Michael Magan (the ?Af?davit.?) Based on the evidence adduced in the af?davit, Judge Patrick Oishi issued a proposed Subpoena to the parties identi?ed in the subpoena, and the following parties appeared through counsel at the hearings described below: KIRO TV, Inc. KING Broadcasting Sinclair Media of Seattle, LLC. Fox Television Stations, LLC and the Seattle Times Company (?Seattle Times?), referred to collectively as the ?News Media Parties.? The Subpoena noti?ed the News Media Parties that SPD was seeking ?[a]ny and all video footage or photographs, including but not limited to all unedited and/or raw video footage, taken on Saturday, May 30, 2020, from 1530 hours to 1700 ORDER ENFORCING SUBPOENA AND DENYING NEWS OBJECTIONS TO SUBPOENA DUCES FINDINGS OF FACT AND OF LAW hours from the locations of Olive Street to Pike Street and also from 6th Avenue to 4th Avenue in Seattle, Washington.? The Subpoena further noti?ed the News Media Parties that a hearing was set for June 29, 2020 at a time to be determined to ?consider and rule upon any objections to permitting such production, inspection and copying, which shall not be required until after such hearing.? SPD then served the Subpoena, along with the Af?davit, on the various News Media Parties; according to the af?davits of service, KIRO, KING, KOMO, and KCPQ were served on June 19, 2020; the Seattle Times was served on June 22, 2020. The Court subsequently reset the hearing to July 16 at 1:30 pm. The News Media Parties ?led ?Objections and Request to Quash Purported Subpoena For Protected Newsgathering Material? on June 29, 2020 (the ?Objections?), along with a supporting Declaration of Danny Gawlowski (?Gawlowski Amicus curiae the Reporters Committee for Freedom of the Press (?Reporters Committee?) moved to submit an amicus brief, which motion was unopposed and granted, and ?led a brief the same day in support of the News Media Parties. SPD ?led a Response in Opposition to News Media Objections and Request to Quash (the ?Opposition?) on July 13, 2020, along with a supporting Declaration of Brian Esler (?Esler The News Media Parties ?led a Reply In Support Of Objections And Request To Quash? (the ?Reply?) on July 14. I The Court held 'a telephonic hearing on the afternoon of July 16; all parties stipulated to conducting the hearing by telephone. At that hearing, the Court considered the arguments of counsel, and also took testimony from Detective Michael Magan. The Court declined to rule that day, and set a further telephonic hearing on July 23 starting at 9:00 am. At the July 23 hearing, all parties again stipulated to conducting the hearing by telephone. At that July 23rd hearing, the Court took further testimony from Detective Magan, and considered the further arguments of counsel for the parties and the amicus. SPD also requested at the July 23 hearing that the Court take judicial notice of a July 3, 2020 Seattle Times online article entitled ?Seattle Times, other media ?ght Seattle Police Department subpoena for raw footage, ORDER ENFORCING SUBPOENA AND DENYING NEWS OBJECTIONS TO SUBPOENA DUCES FINDINGS OF FACT AND CONCLUSIONS OF LAW photos of protest? (the ?Article?), which Article included a hyperlink to Detective Magan?s Af?davit. Hearing no objection, the Court granted that request. Having considered the above-described evidence, the submissions and arguments of all parties (including amicus), and the pleadings and ?lings herein, the Court enters the following ?ndings of fact and conclusions of law (which incorporate by reference the above procedural description): ORDER ENFORCING SUBPOENA AND DENYING NEWS OBJECTIONS TO SUBPOENA DUCES FINDINGS OF FACT AND CONCLUSIONS OF LAW L1.) I. FINDINGS OF FACT 1. There was no dispute raised in court that on Saturday, May 30, 2020, between approximately 3:30 pm and 5 pm in the area of Olive Street to Pike Street in downtown Seattle, six SPD vehicles were lit on ?re, and ?ve ?rearms were stolen from SPD vehicles, as further described in the Af?davit. These thefts and arsons constitute serious felonies. 2. No party disputed the events and evidence described in the Af?davit, the Court incorporates those by reference in these ?ndings, and describes those events and that evidence summarily below. The protests and demonstrations of May 30, 2020 lasted well into the night. The Court also takes judicial notice Of this fact. 3. The stolen ?rearms consist of two loaded Colt AR 15 ri?es, two loaded Colt M4 carbines, and a loaded Glock Model 43 semiautomatic pistol. The AR 15 ri?es, as well as one of the M4 carbines, were later recovered. However, one of the M4 carbines (with suppressor) as well as the Glock pistol, remain unrecovered. The continued circulation of these unrecovered police weapons in the community threaten public safety. ORDER ENFORCING SUBPOENA AND DENYING NEWS OBJECTIONS TO SUBPOENA DUCES FINDINGS OF FACT AND CONCLUSIONS OF LAW 4. Detective Magan watched the civil unrest of May 30, 2020 unfold via local television stations while off-duty that day. He noted that it appeared to him that the vast majority of the coverage by the News Media Parties seemed to occur with a four-block area between 4th Avenue to 6th Avenue and Olive Way to Pike Street. He testi?ed in his Af?davit that ?[b]ased on when the incidents under investigation occurred, there is probable cause to believe that those media sources captured images of the suspects in the footage/photo graphs taken in that area between 3:30 PM to 5 PM, which footage/photographs have not yet been published.? Magan Aff., at 13-14. 5. On Sunday, May 31, 2020, SPD assigned Detective Michael Magan to investigate those thefts and arsons. Af?davit, at 2. There was no dispute raised in court that, as described in his June 18 Af?davit, the following events occurred in and around the area circumscribed by Olive Street to Pike Street and 6th Avenue to 4th Avenue in downtown Seattle. 6. At about 2 pm, ?ve SPD vehicles park in 1600 block of 6th Avenue on West side of street in front of one vehicle parks in 500 block of Pine Street. 7. Around 3 :30 pm, civil unrest began to occur in a concentrated area between 4th Avenue to 6th Avenue and Olive Way to Pike Street. A KCPQ cameraperson (or persons) captured some of the unrest in the 500 block of Pine Street on video. Af?davit, at 7. ORDER ENFORCING SUBPOENA AND DENYING NEWS OBJECTIONS TO SUBPOENA DUCES FINDINGS OF FACT AND CONCLUSIONS OF LAW