United States District Court, D. Utah, Central Division
E. DOWDELL UNITED SPATES DISTRICT JUDGE.
the Court are motions and objections (Doc. 87, 100, 101)
relating to Orders (Doc. 81, 84, 98) by United States
Magistrate Judge Paul J. Cleary regarding media intervention
and unsealing of a video excerpt of a shooting that is at the
center of this case.
Angilau was on trial on a criminal indictment, which alleged
that Angilau was a member of the Tongan Crips Gang whose
members committed murder, attempted murder, robbery, and
assault. During the testimony of the first witness, Angilau
grabbed a pen from the table where he sat with his counsel.
Angilau swiftly ran to and jumped over the witness stand, in
an apparent attempt to stab the witness with the pen. The
attack was recorded on a courtroom video monitoring system
and an audio recording system. As Angilau launched himself
over the witness stand, a Deputy United States Marshal fired
four shots, all of which hit Angilau. The witness deftly
avoided harm. Unfortunately, Mr. Angilau died shortly
thereafter. In this suit, his parents and estate are suing
the Deputy Marshal, who is named in the Complaint as
“Jane Doe” in order to protect Doe's
identity, and the United States of America. The plaintiffs
assert a claim under the Federal Tort Claims Act for wrongful
death and, alternatively, they assert that Jane Doe violated
Mr. Angilau's constitutional rights by using excessive
force. (Doc. 2 at 2).
media entities - the Utah Headliners Chapter of the Society
of Professional Journalists, the Associated Press, the
Deseret News, the Salt Lake Tribune, KSL-TV, KSL Newsradio,
KSL.com, ABC4, KUTV, and Fox 13 KSTU-TV (Media Intervenors) -
moved to intervene in the action for the limited purpose of
opposing restriction of access to proceedings and certain
documents filed in the case. (See Doc. 20). Judge
Cleary granted the motion to intervene, after finding that
denial of intervention would “impair the opportunity
for public access to judicial records and proceedings.”
(Doc. 81 at 16).
Cleary subsequently conducted a hearing regarding the
public's access to the video recording of Jane Doe's
shooting of Siale Angilau. (See Doc. 88). At issue
are two versions of the 24 seconds of video recording, with
synchronized audio recording, which include the events
immediately before, during, and after the shooting. In one
version, faces of court personnel, security and law
enforcement personnel, and others are pixelated and thus
obscured. That version was submitted as a part of Exhibit F
to the defendants' dismissal motions. (See Doc.
36-8 [describing Exhibit F]). The other version of the video,
which was submitted as part of Exhibit E to the dismissal
motions, is not pixelated. (See Doc. 36-7
[describing Exhibit E]). After fully considering the issues
concerning public access, courtroom security, and the safety
of courtroom and law enforcement personnel, Judge Cleary
determined that the pixelated version of the video should be
unsealed and made available to the public. (Doc. 98 at 28).
The defendants have filed objections (Doc. 87, 100) to the
orders permitting intervention and unsealing the pixelated
video and have moved to stay (Doc. 101) the effect of the
order unsealing the video.
defendants' Objection to the order granting intervention
is “limited to the Court's finding that the Media
Intervenors have a First Amendment right to assert access to
certain pretrial documents submitted to [the] Court.”
(Doc. 87 at 1). The Supreme Court has not yet determined
there is a First Amendment right of access to court records.
See United States v. Pickard, 733 F.3d 1297, 1302
n.4 (10th Cir. 2013). However, there is a common law right of
access to judicial records, which is not absolute, but
imposes a “strong presumption in favor of public
access.” Id. at 1302 (quoting Mann v.
Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007)). Thus,
the Court need not determine the existence or scope of any
First Amendment right to access judicial records, because
there is a common law right to seek to have court records
unsealed. See Id. (“Because we conclude that
Defendants can seek to have the . . . records unsealed under
the common law, we have no occasion here to address whether
they also have a First Amendment right to have the . . . file
unsealed.”). The defendants have not objected to Judge
Cleary's determination that there is a common law right
to seek access. (See Doc. 87 at 1).
defendants' objection (Doc. 87) is denied. The orders
granting intervention to the Media Intervenors (Doc. 81, 84)
are affirmed. Judge Cleary's order is sustainable on his
well-reasoned analysis regarding intervention for purposes of
seeking a right of access to judicial records under the
Unsealing of the Pixelated Video
Cleary weighed and balanced the competing interests of the
public and the defendants and determined that unsealing the
pixelated video would appropriately guard against the danger
posed to Jane Doe, because Doe cannot be identified by the
pixelated video. (See November 29, 2017 Order, Doc.
98). The defendants objected to Judge Cleary's November
29, 2017 order (Doc. 100). They argue that Judge Cleary
imposed too high of a burden upon the defendants to keep the
pixelated version of the video sealed from public view.
(Id. at 6).
Court has reviewed the in camera submissions
supporting the defendants' safety concerns with respect
to identification of the Deputy, as well as all arguments
submitted on these issues. Judge Cleary's order
appropriately balanced the defendants' interests in
safety and avoiding pretrial publicity against the common
law's “strong presumption in favor of public
access.” See Pickard, 733 F.3d at
1302. While that strong presumption may
“be overcome where countervailing interests heavily
outweigh the public interests in access, ”
id., Judge Cleary properly weighed “the
interests of the public, which are presumptively paramount,
against those advanced by the parties.” Id.
(quoting Helm v. Kansas, 656 F.3d 1277, 1292 (10th
Cir. 2011)). His ultimate determination - that the
defendants' interests were significant enough to justify
keeping the unpixelated video under seal, but would be
sufficiently protected by release of the pixelated version
which conceals Doe's identity - properly weighed the
circumstances. That determination is not “clearly
erroneous or contrary to law.” See Fed. R.
Civ. P. 72(a).
defendants also argue that Judge Cleary erroneously failed to
consider that release of the video would result in
“prejudicial pre-trial publicity” and would
“taint . . . the jury pool.” (Doc. 100 at 23).
That issue is moot, as the Court has determined that this
action will be decided on the pending summary judgment
motions. An order on those issues is forthcoming. Even were a
trial held, the undersigned would have no concerns with
respect to the ...