No. 98879-0 WASHINGTON STATE SUPREME COURT (On appeal from King County Superior Court No. 20-2-12528-8 SEA) IN RE SUBPOENA DUCES TECUM TO SEATTLE NEWS MEDIA MOTION TO DISMISS APPEAL AS MOOT Brian W. Esler, WSBA No. 22168 Nicholas A. Valera, WSBA No. 54220 MILLER NASH GRAHAM & DUNN LLP Pier 70 2801 Alaskan Way, Suite 300 Seattle, WA 98121 Tel: (206) 624-8300 Fax: (206) 340-9599 Attorneys for Respondent City of Seattle I. IDENTITY OF MOVING PARTY AND RELIEF SOUGHT Respondent the City of Seattle for its Police Department (“SPD”) is the moving party, and moves now to dismiss this appeal as moot, pursuant to RAP 18.9(c). Given this Court’s decision to stay the trial court’s order, which effectively means that SPD would not receive the subpoenaed evidence from the appellants (“News Media”) until sometime well into 2021, and developments in the ongoing investigation into the theft of one of its firearms, SPD has decided to withdraw the subpoena at issue, and not seek enforcement of the underlying trial court order. It will also be making the appropriate filings to notify the trial court that SPD will not seek enforcement of the subpoena or order. RAP 7.2(e). As SPD will not be seeking enforcement and the appellants News Media have not and will not be required to produce anything, there is nothing for this Court to review, the appeal is now moot and it should be dismissed. SPD’s counsel also notified the News Media’s counsel Eric Stahl this afternoon the SPD would be filing this motion; SPD does not expect any opposition to the motion. II. STATEMENT OF FACTS On May 30, 2020 starting around 4 pm at the 1600 block of Sixth Avenue and the 500 block of Pine Street, a number of individuals vandalized and lit six SPD vehicles on fire, and stole five loaded firearms -1- from those SPD vehicles, while peaceful protesters marched nearby. Order, FF No. 1.1 Three of the firearms were eventually recovered; however, both a loaded M4 carbine with suppressor (silencer) and a loaded Glock semi-automatic pistol remain unrecovered. Hence, on June 18, 2020, SPD applied to the King County Superior Court pursuant to Criminal Rule (CrR) 2.3(f) for a subpoena to have these appellant News Media parties produce raw footage and photographs that might help identify the perpetrators and help recover the guns. The Subpoena further notified the News Media that a hearing was set to “consider and rule upon any objections to permitting such production, inspection and copying, which shall not be required until after such hearing.” Order, at 2. The trial court held hearings and took evidence over a number of days in July. On the morning of July 30, 2020, the trial court held a further hearing and ordered in camera review of the requested materials. Order, FF 42. The court held further hearings that day and the next (July 31), and then entered its Order, requiring the appellants News Media 1 The Order is Tab A to the appellant News Media’s Notice of Appeal. As used in this Motion, “FF” refers to the Findings of Fact in that Order; “CL” refers to the Conclusions of Law in that Order. -2- parties to produce the requested evidence for an in camera review. Order, at 33. The News Media appealed, seeking direct review in this Court, and sought a stay. On August 20, this Court’s commissioner granted that stay. Hence, even if the Court accelerated review, and SPD prevailed, the News Media likely would not produce any evidence for even an in camera review until sometime in mid-2021. At that point, the value of that evidence may be greatly diminished. In the meantime, on September 4, 2020, federal authorities arrested the man who is suspected of stealing the M4.2 That investigation continues, but it now appears that suspect may have already sold the firearm, rendering any further evidence that could later be obtained from the News Media regarding the theft of that rifle on May 30 less likely to result in recovery of that firearm. On September 9, 2020, this Court retained the case for hearing and decision. This Court has not yet set a date for oral argument, no briefing schedule has been set, and no briefs have been filed. 2 https://www.justice.gov/usao-wdwa/pr/everett-washington-man-charged-federallypossessing-firearm-stolen-seattle-police. -3- III. ARGUMENT Were the evidence SPD seeks held by anyone other than the News Media, SPD could have obtained a normal search warrant and gathered and reviewed the evidence already. CrR 2.3(b) - (d). However, the appellants News Media do not have to produce evidence even for a criminal investigation until the trial court holds a hearing to determine whether the police have shown, by “clear and convincing evidence,” all of the required elements of the Shield Statute (RCW 5.68.010). After almost eight hours of hearings, the King County Superior Court (Judge Lee) found that SPD had met that demanding standard based on the facts presented, and ordered the evidence produced for an in camera review. SPD believes the trial court’s decision here is wellsupported and well-reasoned. The Commissioner’s ruling staying the in camera review on such a time-sensitive matter was unfortunate. But realistically, SPD would not now get to see any relevant evidence the News Media may possess now until sometime in 2021 or later, even if it wins on appeal. Given that likely delay in getting further evidence regarding the crimes committed on May 30, given the decreasing value of such evidence as time goes on, given the recent developments in -4- the investigation into the theft of the M4 rifle, and in light of its many other priorities, SPD has decided to withdraw the subpoena and not seek enforcement of the Order. It will also file appropriate notices with the Superior Court. RAP 7.2(c). With SPD’s voluntary withdrawal of the subpoena, and given that the News Media has never produced any evidence, there is no longer anything to review, and the case is moot. “The appellate court will, on motion of a party, dismiss review of a case . . . if the application for review is . . . moot.” RAP 18.9(c)(2). SPD requests that this Court dismiss the appeal as moot pursuant to RAP 18.9(c)(2). SPD will be filing a notice and any other appropriate papers with the trial court as well to confirm that SPD is withdrawing the subpoena, and will not further pursue enforcement. SPD’s counsel alerted the News Media’s counsel today (September 21) that SPD would be withdrawing the Subpoena and would be filing this motion. The News Media’s counsel is still checking with his various clients, but SPD does not expect any opposition to this motion. -5- IV. CONCLUSION The appeal is now moot, and this Court should dismiss pursuant to RAP 18.9(c). DATED this 21st day of September 2020. s/ Brian W. Esler Brian W. Esler, WSBA No. 22168 Nicholas A. Valera, WSBA No. 54220 MILLER NASH GRAHAM & DUNN LLP Pier 70, 2801 Alaskan Way, Suite 300 Seattle, WA 98121 Tel: (206) 624-8300 Fax: (206) 340-9599 Email: brian.esler@millernash.com Email: nick.valera@millernash.com Attorneys for Respondent Seattle Police Department -6- CERTIFICATE OF SERVICE I certify that on the 21st day of September 2020, a true and correct copy of the foregoing document was served on counsel for the parties by the method indicated below: Eric M. Stahl Davis Wright Tremaine LLP 920 Fifth Avenue, Suite 3300 Seattle, WA 98104 Email: ericstahl@dwt.com.com  via Hand Delivery  via U.S. Mail  via E-Service  via Email Attorneys for Seattle Times Co., Sinclair Media of Seattle, LLC, KING Broadcasting Company, KIRO TV, Inc. and Fox Television Stations, LLC Madeline Lamo The Reporters Committee for Freedom of the Press 1156 15th St. NW, Suite 1020 Washington, D.C. 20005 Email: mlamo@rcfp.org Attorneys for Amicus Curiae the Reporters Committee for Freedom of the Press -1-  via Hand Delivery  via U.S. Mail  via E-Service  via Email Gary Ernsdorff King County Prosecutor’s Office 516 3rd Avenue, Suite W554 Seattle, WA 98104 Email: gary.ernsdorff@kingcounty.gov  via Hand Delivery  via U.S. Mail  via E-Service  via Email Under the laws of the state of Washington, the undersigned hereby declares, under the penalty of perjury, that the foregoing statements are true and correct to the best of my knowledge. Executed at Seattle, Washington, this 21st day of September, 2020. s/ Gillian Fadaie Gillian Fadaie, Legal Assistant 4829-2895-5081.3 -2- MILLER NASH GRAHAM & DUNN September 21, 2020 - 3:21 PM Transmittal Information Filed with Court: Appellate Court Case Number: Appellate Court Case Title: Supreme Court 98879-0 In Re Seattle Police Department Subpoena Duces Tecum The following documents have been uploaded: 988790_Motion_20200921151524SC823203_3814.pdf This File Contains: Motion 1 - Dismissal The Original File Name was Motion to Dismiss.pdf A copy of the uploaded files will be sent to: CaesarKalinowski@dwt.com cherie.getchell2@seattle.gov christinekruger@dwt.com ericstahl@dwt.com gary.ernsdorff@kingcounty.gov gill.fadaie@millernash.com jennifer.litfin@seattle.gov mlamo@rcfp.org nick.valera@millernash.com paoappellateunitmail@kingcounty.gov Comments: Sender Name: Emily O'Neill - Email: emily.oneill@millernash.com Filing on Behalf of: Brian William Esler - Email: brian.esler@millernash.com (Alternate Email: ) Address: Pier 70 2801 Alaskan Way, Suite 300 Seattle, WA, 98121 Phone: (206) 777-7542 Note: The Filing Id is 20200921151524SC823203