IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In re:
Seattle Police Department Subpoena
Duces Tecum.

No. 9 8 8 7 9 - 0
RULING GRANTING EMERGENCY
MOTION FOR STAY

Petitioners 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 to stay a
King County Superior Court order enforcing a subpoena duces tecum requiring the
news media to produce raw news video footage and still photographs for in camera
review in relation to respondent City of Seattle Police Department’s (SPD’s)
investigation of destruction of police vehicles and theft of police firearms during a mass
disturbance in downtown Seattle. The stay is granted for reasons stated below.
The underlying facts are related only briefly. On May 30, 2020, thousands of
people flooded the streets of downtown Seattle to protest racial injustice and related
social problems. Unfortunately, acts of violence broke out. Several police vehicles were
parked in the area and several of them were set on fire. Five loaded firearms were stolen
from some of these vehicles: two Colt AR-15 rifles, two Colt M4 carbines, and a Glock

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43 nine-millimeter semiautomatic pistol.1 The AR-15s and one of the M4s were
recovered, but the second M4 (with a recoil/noise suppressor) and the Glock are still
unaccounted for.2 A suspect was arrested on suspicion of stealing the still missing M4
but has thus far not cooperated as to its whereabouts.
SPD is trying to identify and locate five suspects implicated in the
above-mentioned violence: (1) a man who participated in burning police vehicles (arson
suspect); (2) a man who smashed out a window in a police vehicle and stole a rifle or
carbine that was subsequently recovered (red sweatshirt suspect); (3) a man who stole
a second rifle or carbine that was also recovered (Adidas tracksuit suspect); (4) a man
who reached into the broken window of a police vehicle and stole a fanny pack
containing the Glock pistol (Glock suspect); and (5) a man who broke open the window
of a police vehicle and stole a third rifle or carbine (Rolling Stones sweatshirt suspect).3
Reporters, photojournalists, and camera crews working for the news media were
on the scene during this disturbance. In an effort to identify the above listed suspects
and gain insight on the whereabouts of the missing firearms, SPD investigators
reviewed video and still images broadcast and published by the news media, video
1

SPD’s description of the AR-15 as the “less sophisticated cousin” of the M4 is not
well taken. Response at 4. The AR-15 described in this case is a civilian or law enforcement
version of the Vietnam War era M16 infantry rifle. The M4 is a lighter and shorter (carbine)
successor to the M16 and currently is the standard issue infantry weapon in the United States
military and, as the facts of this case illustrate, is used by law enforcement agencies,
including SPD. The AR-15 and M4 fire .223 Remington or 5.56 x 45 millimeter NATO
ammunition fed from a detachable box magazine (usually 20 or 30 round capacity). As a law
enforcement tool, the AR-15 arguably is no less sophisticated than the M4. One might
wonder why these military grade weapons were left in unoccupied police vehicles in the
midst of a violent public disturbance, but this is not the place to discuss that question.
2
The
Glock
43
is
available
for
civilian
purchase.
See
https://www.cabelas.com/shop/en/glock-43-subcompact-semi-auto-pistol. (last visited
Aug. 19, 2020) (advertising a sale on Glock 43 pistols).
3
The briefing and record provided are confusing as to the connection between these
suspects and the type of long guns stolen. As indicated, two AR-15s and two M4s were stolen
but SPD’s list of suspects suggest three AR-15s were stolen and then recovered. In any event,
the only long gun still missing is an M4. There is no apparent indication that the unidentified
suspects sought by SPD are connected to that firearm. One unidentified suspect stole the
Glock.

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surveillance videos and photos, and other photographs and videos posted on social
media. SPD reviewed thousands of images. SPD also appealed to the public, but its
online video portal was flooded with pornography. SPD believes the news media are in
possession of high quality unpublished or unreleased images—raw footage—that will
assist its investigation.
As indicated, SPD arrested a suspect in the theft of the missing M4, but the
agency did not rely on images published by the news media to apprehend that person;
rather, the suspect appeared in a YouTube video showing him stealing the weapon, and
he posted on social media photographs of himself vandalizing police vehicles. SPD
tracked the suspect down with the help of a tipster.
On June 18, 2020, SPD applied to the superior court for a subpoena requiring the
news media to produce unedited or raw video footage or photographs taken between
3:30 pm and 5:00 pm in an area bordered by Olive Street and Pike Street and 4th and
6th Avenues in downtown Seattle. On June 29, 2020, the news media filed objections
and a motion to quash the subpoena.
The matter proceeded to telephonic hearings conducted on July 16, 23, and 30,
2020. On July 31, 2020, the superior court entered an order enforcing the subpoena and
denying the news media’s objections. More specifically, the court ordered that the news
media produce the following:
Unedited or raw video footage/photographs from KIRO TV, KING TV,
KOMO TV and KCPQ, and the Seattle Times for Saturday, 05-30-20, taken
from 1530 hrs. to 1700 hrs. in the area from Olive Street to Pike Street and
from 6th Avenue to 4th Avenue as taken by assigned videographers or
photojournalists under the News Media Parties’ employment, agency, or
control; however, no such video or photographs shot on cell phones need be
produced.

Order Enforcing Subpoena at 33. The court required the news media to produce the
video and photographic images within 21 calendar days of the order, effectively not
later than August 21, 2020.

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The news media seek direct review in this court and filed an emergency motion
for a stay pending review in this court. Now before me is whether to grant the motion
for a stay. Whether this court should retain the appeal of the superior court order is a
separate question to be decided later. RAP 4.2
An appellate court may issue a stay of superior court proceedings under either
RAP 8.1(b) or RAP 8.3. The former rule applies to civil cases. RAP 8.1(a). SPD argues
the subpoena at issue here was issued in relation to a criminal investigation and
therefore RAP 8.1 does not apply. When a prosecuting agency seeks evidence of a crime
in the possession of news media, it must obtain it by way of a subpoena duces tecum
issued in accordance with CR 45(b).4 RCW 10.79.015(3); CrR 2.3(f)(2). The news
media argue that in light of CR 45, it is appropriate to consider this a civil matter for
purposes of RAP 8.1. The matter at issue here certainly is something of a hybrid, a
subpoena issued to a non-suspect in accordance with a civil rule in relation to an
ongoing criminal investigation of unidentified suspects. Whether RAP 8.1 applies in
this situation is an issue that may need to be resolved on appeal, though it is premature
to say whether such review should be in this court in the first instance. See RAP 4.2(a).
Assuming without deciding that RAP 8.1(b) applies, an appellate court deciding
whether to issue a stay will “(i) consider whether the moving party can demonstrate that
debatable issues are presented on appeal and (ii) compare the injury that would be
suffered by the moving party if a stay were not imposed with the injury that would be
suffered by the nonmoving party if a stay were imposed.” RAP 8.1(b)(3).
As to the existence of a debatable issue, a news media outlet cannot be compelled
to produce information obtained as part of its newsgathering operations unless the
superior court finds that the requesting agency established by clear and convincing
4

There is an exception if there is probable cause that the person in possession of the
evidence was a participant in the crime or that the evidence will be hidden or destroyed.
RCW 10.79.015(3). There are no such allegations here.

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evidence that (1) there are reasonable grounds a crime has been committed, (2) the
sought after information is “highly material and relevant,” (3) the information is
“critical or necessary” to proving the agency’s case or material issues in the case, (4)
the agency “exhausted all reasonable and available means to obtain it from alternative
sources,” and (5) “there is a compelling public need for the disclosure.”
RCW 5.68.010(2). Whether SPD established all of these statutory requirements is
debatable. There is no question crimes occurred, but whether additional visual images
will yield information that is “highly material and relevant” or “critical or necessary”
seems uncertain, if not speculative. RCW 5.68.010(2)(b)(i)-(ii). Also, whether SPD
availed itself of all reasonably alternative means of obtaining the identity of suspects
has no clear cut answer. RCW 5.68.010(2)(b)(iii). While the public will likely be
interested in the release of more images of the mayhem of that day, and while the public
also has a strong interest in the retrieval of stolen firearms, whether the public has a
“compelling” need for this information can be fairly argued. RCW 5.68.010(2)(b)(iv).
Comparing the injuries if a stay is imposed or not, the news media express
legitimate concerns about invasion of their First Amendment right to gather, produce,
and disseminate news, as well as how the public perceives them as independent
observers and reporters of the day’s events. SPD is correct that any information initially
disclosed to the superior court will be reviewed in camera, but that view downplays the
harm flowing from being forced to disclose the information at all.
As for harm to SPD, the public threat of stolen firearms cannot be ignored. But
three of the five firearms were recovered. The still missing M4 and Glock were stolen
more than two-and-a-half months ago and may have entered the wider realm of a
country flooded with firearms, stolen and possessed legitimately, including

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semiautomatic pistols like the Glock and military style weapons like the M4.5 The
person who allegedly stole the M4 has already been arrested, though he has thus far not
been cooperative in tracking down the weapon. As for the Glock, whether a better
quality image of the person who stole that weapon exists is also speculative.6 As for the
other suspects, apart from the theft of already recovered firearms and the destruction of
police vehicles and other public and private property, there is no clear showing that
these individuals are an imminent or ongoing threat to public safety such as to compel
immediate disclosure of constitutionally and statutorily protected journalistic work
product. On balance, I am not persuaded that the potential harm to SPD outweighs the
potential harm to the news media.7
Alternatively, in either civil or criminal cases, this court “has authority to issue
orders, before or after acceptance of review . . ., to insure effective and equitable review,
including authority to grant injunctive or other relief to a party.” RAP 8.3. The purpose
of this rule is to provide appellate courts with authority to provide preliminary relief so
as to preserve the fruits of a successful appeal. Wash. Fed’n of State Employees v. State,
99 Wn.2d 878, 883, 665 P.2d 1337 (1983). The appellate court applying this rule
undertakes an analysis similar to that applied with RAP 8.1(b), pondering whether
debatable issues exist and a stay is necessary to preserve the fruits of a successful
appeal, and considering the equities of the circumstances. Confederated Tribes of
Chehalis Reservation v. Johnson, 135 Wn.2d 734, 759, 958 P.2d 260 (1998).
5

SPD rightfully points out that these are stolen police weapons. But equivalent
weapons are available in the civilian market, are carried openly, and are seemingly
ubiquitous. See https://www.cabelas.com/shop/en/ruger-ar-556-semi-auto-rifle. (last visited
Aug. 19, 2020) (advertising a Ruger military style semiautomatic rifle similar to the M4).
The records provided thus far do not indicate whether the stolen M4 is capable of short burst
or full automatic fire.
6
One might think that news media would tend to publish their best quality images,
but the particulars of news content editing are beyond the scope of this ruling.
7
I do not make this assessment lightly, recognizing there have been subsequent
public disturbances in Seattle that have resulted in injuries to both civilians and SPD
officers.

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For the same reasons stated with respect to RAP 8.1(b), a stay is justified to
preserve the fruits of a successful appeal turning on highly debatable questions. The
equities favor the news media, though I am deeply mindful of the public safety concerns
attendant to stolen police firearms and intentional destruction of law enforcement
vehicles and other property. In light of those legitimate concerns, a decision will be
made at the earliest opportunity as to whether to retain the appeal or refer it to the Court
of Appeals. RAP 4.2.
The emergency motion for a stay is granted. The order entered on July 31, 2020,
in King County Superior Court No. 20-2-12528-8 SEA, denying the news media’s
objections and enforcing a subpoena requiring the news media to produce information
pertaining to the events of May 30, 2020, for in camera review is stayed until further
order of this court.

COMMISSIONER
August 20, 2020