Opinion
Case No.: 2:16-cr-00046-GMN-PAL
04-10-2017
UNITED STATES OF AMERICA, Plaintiff, v. CLIVEN D. BUNDY et al., Defendants.
ORDER
Before the Court are two requests for copies of exhibits submitted by Vanessa Murphy on behalf of KLAS-TV, a local news organization in Las Vegas known as Channel 8 News ("Channel 8"). (See Exs. 1 & 2). Channel 8 submitted the requests to the Clerk's Office on March 23, 2017, and April 3, 2017, seeking copies of "video clips played in court from the FBI's undercover operation [known] as 'Longbow Productions'" (the "Longbow Interviews"). (Ex. 2). For the reasons discussed below, the Court DENIES Channel 8's request.
I. LEGAL STANDARD
A strong judicial presumption exists favoring public access to judicial records, including the right to copy and inspect those records. Valley Broad. Co. v. U.S. Dist. Court for Dist. of Nev., 798 F.2d 1289, 1290, 1293-94 (9th Cir. 1986). The underlying purpose of the presumption is to "promot[e] the public's understanding of the judicial process and of significant public events." Id. at 1294.
Notwithstanding the presumption favoring access, courts in the Ninth Circuit must also evaluate the risk that the material at issue would be put to an improper use, which may counsel against permitting the exercise of that right in a given instance. Id. Improper uses include "publication of scandalous, libelous, pornographic, or trade secret materials; infringement of fair trial rights of the defendants or third persons; and residual privacy rights." Id. Ultimately, the court must weigh "'the interests advanced by the parties in the light of the public interest and the duty of the courts.'" Id. (quoting Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 602, (1978)).
II. DISCUSSION
The Longbow Interviews requested by Channel 8 features interviews of several defendants conducted by a Federal Bureau of Investigation Undercover Employee ("UCE"). The Court has previously discussed its "concerns for harassment [of the UCE], the UCE's safety, and the protection of his on-going investigations." (ECF No. 1664); (see also ECF Nos. 1063, 1539). These concerns arose from suggested and particular threats of violence—including death threats—against law enforcement involved in this case. (Order 6:4-20, ECF No. 1063). As the Court has recounted,
[o]ne supporter has already pled guilty to threatening a law enforcement officer and transmitting a threatening communication. United States v. Michael, Case No. 5:15-cr-00086-MSG (E.D. Pa. 2016). Government prosecutors have also been named in a post calling for a lone wolf attack and exclaiming the joy it will be to see the prosecutor hang or burn for treason.(Id. 6:9-12). Based on these concerns, the Court found good cause to enter a Protective Order prohibiting "public disclosure of any audio recording, or similar reproduction of the voices or visual images of the UCE while testifying." (ECF No. 1539).
Public disclosure of the Longbow Interviews, which include audio of the UCE's voice, implicates these same concerns. Indeed, Defendants' supporters have publicly shared the personal identifying information of law enforcement officers associated with this case to intimidate and identify known and unknown individuals. (R. & R. 6:13-7, ECF No. 608). In light of the specific and credible threats against law enforcement involved in this case, coupled with the need to maintain the anonymity of the UCE, the Court finds it likely that the video may be used for improper purposes, namely, to discern the identity of the UCE. See Valley Broad., 798 F.2d at 1294 (listing "residual privacy rights" as an improper use).
(See, e.g., Ex. 2 to Govt's Mot. for Protective Order, ECF No. 357-2) (dated April 12, 2016).
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The Court is mindful of the public interest in the video at issue and in the importance of the presumption of public access to judicial records. The Court also recognizes the public policy concern implicated by the safety of public officers who are required to work undercover during their investigations of possible criminal activity. This latter concern heavily outweighs the presumption in favor of copying the video, particularly here where Channel 8 had the opportunity to view the Longbow Interviews in the courtroom. The Court therefore denies Channel 8's request to copy the Longbow Interviews.
III. CONCLUSION
IT IS HEREBY ORDERED that Channel 8's requests for copies of the Longbow Interviews dated March 23, 2017, and April 3, 2017, are DENIED.
DATED this 10 day of April, 2017.
/s/_________
Gloria M. Navarro, Chief Judge
United States District Court
EXHIBIT 1
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EXHIBIT 2
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