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On April 21, Pasquotank County sheriff’s deputies attempted to serve warrants on Andrew Brown Jr., then fatally shot Brown as he attempted to drive away. In the seven months since his death, a coalition of news media organizations, including Carolina Public Press, has sought the release of law enforcement video of Brown’s killing and the aftermath.
Jerry Tillett, senior resident Superior Court judge for the judicial district that covers Pasquotank County, released an order last week denying the media coalition’s petition for video release on the grounds that the coalition was not properly before the court.
The decision came after another Superior Court judge, Jeff Foster, ruled the coalition had a right to request the footage using a short-form process outlined in the law, raising legal questions about whether Tillett’s authority allows him to overrule a prior judge’s order.
Under the law, someone who wants a video disclosed may use a form to petition the court. The media coalition is not entitled to use the form, according to Judge Tillett’s order.
The coalition’s lead attorney, Mike Tadych, said he has used the same petition method for requesting the release of law enforcement videos in more than 30 cases since the law dictating how these kinds of videos are made public was passed in 2016.
The question of whether and how the press may request the footage has plagued the case since the beginning. In a May hearing, Foster said from the bench that the media coalition was not properly before the court.
Tadych indicated he would appeal that decision if it was part of the written ruling, but Foster reversed course in his written order. The coalition was properly before the court, he wrote, though he declined to release the videos.
The coalition sought another court hearing after the N.C. State Bureau of Investigation and the district attorney completed their investigations. Judge Tillett presided over a hearing about the change in circumstances on Sept. 13.
In his order, Tillett’s conclusion purports to reverse Foster’s decision on whether the media coalition has a right to use the short-form process. Tillett’s order found that the media coalition was not properly before the court. He also declined to release the footage.
Lawyers for the media coalition say they will appeal the decision.
“The coalition of 20 media companies seeking the release of law enforcement recordings of Andrew Brown’s shooting, death and the ensuing protests in Elizabeth City on April 21 learned in an order entered by Judge Jerry R. Tillett on November 9, 2021, that (the judge) thinks that they weren’t properly in court based on a novel theory put forth only by Judge Tillett,” Tadych wrote in a statement.
“Judge Tillett’s new order does not cite any authority for him to overrule another Superior Court Judge, and petitioners’ counsel are not aware of any,” Tadych wrote in his statement.
Carolina Public Press reached out to Tillett on Friday afternoon for comment on his order. Tillett did not respond by the time of publication.
Not only does Tillett’s order break from several years’ worth of decisions from other judges across the state, but it is also wrong, according to Brooks Fuller, director of the N.C. Open Government Coalition at Elon University.
If the media coalition lets Tillett’s order stand, rather than appeal, it could change the standard for requesting the release of law enforcement video, Fuller said. Tillett’s proposed method for requesting release — a civil action — would take longer and be more expensive, Fuller said.
For the video of Brown’s shooting, Tillett’s suggested method would require the media coalition to restart the process to request video release, wasting months of work, Fuller said.
Tillett’s order pertains only to how members of the general public, such as journalists, can request the release of law enforcement video in North Carolina. Family members of people killed by law enforcement or anyone represented in the videos can still seek video release using the expedited, single-form process that has been in place for several years.
In May, District Attorney Andrew Womble showed minutes, out of several hours, of body camera footage of the attempted arrest and subsequent shooting of Brown to journalists before announcing that he would not bring charges against the deputies who fired their weapons.
Womble did not release the video recordings, but TV news stations filmed and published the videos as they were played during the press conference.