James C. Harrison, Jr.

*
Andrew S. Radeker
HARRISON P.O. Box 50143
Columbia, SC 29250
Taylor M. Smith IV RADEKER (803) 779-2211

* Mediator/Arbitrator
SMITH PA ATTORNEYS AT LAW
(803) 779-6700 (fax)
ww.h arri son II rm.com

June 25, 2019

VIA EMAIL
Mr. Bill Rogers
Executive Director
South Carolina Press Association
106 Outlet Pointe Boulevard
Columbia, SC 29210
brogers@scpress.org

Standing Administrative Order: Body Worn Camera Protective Order of the

Thirteen Judicial Circuit

Dear Mr. Rogers:

Please accept the following on behalf of The South Carolina Press Association regarding the
Standing Administrative Order: Body Worn Camera Protective Order of the Thirteen Judicial Circuit,
signed May 13, 2019.

In what was a reasonable effort to stop the dissemination of information that may
unconstitutionally impact a person's privacy rights, this Order (if enforced by its wording) may
actually harm a criminal defendant's ability to provide a defense, chill the freedom of expression of
members of the public (among others), and subvert the legislative intent of the General Assembly in
requiring police body-worn cameras ("BWCs").

The Order states that dissemination of BWC footage to the public "creates a substantial risk
of violating the privacy rights of victims, witnesses, and members of the public who may appear on
the recording simply as a result of interacting with law enforcement." While it is certainly true that
some members of the public may have their likeness displayed on BWC footage without their consent,
this does not mean that in every case of published BWC footage, a person will have their privacy
rights impacted such that it is a Fourth Amendment' problem. The South Carolina Supreme Court
has said however, "one of the primary limitations placed on the right of privacy is that it does not
prohibit the publication of matter which is of legitimate public or general interest."2 Indeed, that Court
has held that, as a matter of law, "if a person, whether willingly or not, becomes an actor in an event
of public or general interest, then the publication of his connection with such an occurrence is not an

I United States Constitution.

2Society of Profl Journalists v. Sexton, 283 S.C. 563, 566, 324 S.E.2d 313, 315 (1984) (quoting Meetze v. Associated
Press, 230 S.C. 330, 95 S.E.2d 606 (1956)).
invasion of his right to privacy."3 In accordance with these principles, there does not present a
substantial risk for the implementation of this Order.

The Order also provides that this BWC footage "shall not be used by the defense for any
purpose other than to conduct additional investigation and/or prepare a defense in the pending
criminal action." While it is understandable that the Court may disagree with a defense attorney's
public dissemination of lawfully obtained BWC footage prior to trial, it is within each defendant's
right to prepare their defense how they choose (within the bounds of court rules, statutes, and
constitutions). These criminal defendants have a Sixth Amendment4 right to a trial by an impartial
jury and if there is substantial pretrial publicity as a result of the Defendant's (or any other person's)
release of this BWC footage, the United States Supreme Court has recognized several mechanisms
the Court can use prior to trial (like delaying the proceeding, changing the trial venue, and/or
effectively questioning prospective jurors about what they know about the case before seating them)
to preserve the parties rights. 5 The current wording of this Order effectively removes the
constitutionally afforded discretion provided criminal defendants under the state and federal
constitutions.

The Order also provides that "BWC may be viewed only by parties to the criminal action,
their counsel, their counsel's employees, investigators, experts, or witnesses as may be necessary for
investigation of the case and trial preparation." If this Order language is ever interpreted to arrest,
fine, or otherwise apply governmental power to stop a member of the public (or the press) from
viewing or publishing the BWC footage, that governmental action will likely be considered a
violation of that person's freedom of speech as guaranteed by the First Amendment to the United
States Constitution. In the famed 1971 United States Supreme Court Case commonly known as
Pentagon Papers6, the Court noting our nation's history in saying "[Ole Government's power to
censor the press was abolished so that the press would remain forever free to censure the Government.
The press was protected so that it could bare the secrets of government and inform the people."' The
rights of the press in speaking are largely the same as those of the general public and if this Order is
used to censor a person's dissemination of even unlawfully-obtained BWC footage, that action will
be regarded as unconstitutional.

Finally, it is important to note that Title 23, Chapter 1 of the South Carolina Code of Laws,
which created and governs law enforcement's use of BWC's, was passed by the General Assembly
in response to the shooting of Walter Scott and other instances of police shootings involving unarmed
minorities. Although it is true that South Carolina was the first state to mandate the use of police-
worn body cams, it was also the first state in the Union to prohibit the public from seeing that
information, pursuant to the state's Freedom of Information Act. Instead, the legislature (as this Order
correctly notes) provides law enforcement with the discretion as to whether they will release that
footage in the highly charged moments after a police shooting. It is not difficult to see how a law
enforcement official may choose to withhold publishing the BWC footage because it is incriminating

3 Doe v. Berkeley Publishers, 329 S.C. 412, 414, 496 S.E.2d 636, 637 (1998) (quoting Meetze, 230 S.C. at 337, 95
S.E.2d at 609).
4 United States Constitution.
5 See Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976).
6 New York Times Company v. United States United States v. Washington Post Company, 403 U.S. 713, 91 S.Ct. 2140,
29 L.Ed.2d 822 (1971).
7 1d. at 717.

2
to the office and may rightfully be "under investigation." But if that is the case and extreme public
interest and unrest is mounting, this Order's language8 may be interpreted to prevent the criminal
defense attorney or the personal representative of the estate of the deceased individual from providing
the needed transparency of the police and quelling public unrest.

I sincerely hope that this Order's language will be reconsidered by the Court. The
undersigned is happy to meet with any signatories to the order being discussed, as well any
parties who requested this order of the Court.

With kind regards, I am,

Very truly yours,
HARRISON, RADEKER & SMITH, P.A.

Taylor M. Smith IV
TMS/rss

cc: The Honorable Letitia H. Verdin, as chief judge for administrative purposes of the
Thirteenth Judicial Circuit

8 Among other parts, paragraphs 13 and 14, pages 2-3 ("13. The BWC Recordings may be viewed only by parties to the
criminal action, their counsel, and their counsel's employees, investigators, experts, or witnesses as may be necessary for
investigation of the case and trial preparation; 14. No written transcript of BWC Recordings, nor the substance of any
portion thereof, shall be divulged by the defense to any person not authorized to view the BWC Recordings;").