NC Supreme Court will hear appeal to gag order against Greensboro council members

Greensboro city council members are barred by a judicial order from speaking about police-body camera video showing an encounter with Zared Jones, shown here addressing a press conference at the Beloved Community Center. (file photo)

The North Carolina Supreme Court has agreed to hear an appeal from the city of Greensboro against a lower-court ruling that bars city council members from discussing police body-camera video depicting interactions that took place between police officers and four young, Black men in downtown in September 2016.

The case arose when the city petitioned a Guilford County superior court judge to review the video of the incident, which was the subject of a complaint filed against the police department by Zared Jones, one of the men. According to Jones, then a 29-year-old nursing assistant, police officers on the downtown bike patrol surrounded him and his friends and started asking them questions without cause on a Friday evening. A second encounter between the police and the men on a block of West McGee Street bustling with late-night revelers escalated into a confrontation with police Tasing one of the men and arresting all four.

The four men were taken into custody and variously charged with second-degree trespassing, misdemeanor intoxicated and disrupting, and assault on a law enforcement officer. The complaint alleging police misconduct that was filed by Jones implicated Sgt. Steven Kory Flowers, Cpl. Korey R. Johnson and Officer Samuel A. Alvarez. All charges were eventually dropped against the four young men, while in November 2017 the police department cleared the officers of wrongdoing, finding no evidence of bias.

In January 2018, Guilford County Superior Court Susan Bray entered an order allowing Greensboro City Council members and certain appointed city officials to view the body-camera footage under the stipulation that council members who looked at the footage would be prohibited from publicly discussing its contents.

The city has argued that the restrictions interfere with council members’ ability maintain transparency with constituents and that it violates their First Amendment rights.

Triad City Beat, along with numerous media and civic organizations, signed a “friend of the court” brief in support of the city’s effort to overturn the gag order.

Amiel Rossabi and Gavin Reardon, two lawyers with Rossabi Reardon Klein Spivey law firm in Greensboro, argued for maintaining the gag order on behalf of the Greensboro Police Officers Association during the hearing before the North Carolina Court of Appeals.

The court upheld Judge Bray’s order in an August 2019 ruling. Judge Chris Dillon wrote the opinion for the court of appeals, with concurrence from Judge Valerie Zachary. Judge Phil Berger Jr. wrote a separate concurring opinion.

Judge Bray’s order cited a number of factors to support her decision to restrict council members from speaking about the video. Among them, the judge said, “release would create a serious threat to the fair, impartial, and orderly administration of justice” and “confidentiality is necessary to protect either an active or inactive internal or criminal investigation or potential internal or criminal investigation.” Bray also cited a judicial standard that “release may harm the reputation or jeopardize the safety of a person.”

The state Court of Appeals acknowledged in the August 2019 opinion that criminal cases against Jones and others depicted in the video were no longer pending, and Judge Dillon wrote that as a result the argument that restricting the video was necessary to protect a criminal investigation was no longer applicable.

Judge Dillon rejected the city’s argument that the order violates city council members’ First Amendment rights.

“The gag order only prevents the city from disseminating information that it has learned through the court order,” Dillon wrote. “The gag order does not otherwise restrain the city officials from discussing the subject of the police encounter generally, only from discussing the body-cam footage specifically. Therefore, we conclude that the gag order does not impermissibly infringe on the city’s First Amendment rights.” Dillon added: “The city council members have no right to the information in the first place.”

Dillon’s opinion indicates that protecting the reputation and safety of the police officers weighed the heaviest in the appellate court’s decision to uphold the order.

“The city makes no argument that standard #5, that a public disclosure of the information ‘may harm the reputation or jeopardize the safety of [the officers],’ was no longer applicable,” he wrote.

While there’s no evidence to suggest the court was aware of it, two of the officers depicted in the video have previously come under scrutiny. Alvarez was the subject of an excessive-force complaint for an encounter with Jose Charles, then 15 years old, during the Fun Fourth Festival in downtown Greensboro in 2016. Following an internal investigation of the incident, the department cleared Alvarez of wrongdoing.

And in October 2018, a speaker addressing city council during public comment  identified Flowers as a control agent of Loyal White Knights of the Ku Klux Klan Imperial Wizard Chris Barker, a federal informant. Responding to concerns from city council members, then-Chief Wayne Scott said all officers “are acting well within the law” and that the department must “maintain certain relationships to keep the people in this city safe.”

Judge Dillon concluded in his opinion upholding Judge Bray’s gag order: “In this case, protecting the reputation and safety of those individuals, as well as safeguarding the administration of justice, presents a substantial government interest for which the trial court’s restrictions were no greater than necessary.”

The state Supreme Court’s decision on Friday to hear the city’s appeal means Greensboro’s petition for a constitutional review of Judge Bray’s order will receive a hearing.

The court also rejected the Greensboro Police Officers Association’s motion to dismiss the appeal, and recused Phil Berger Jr. from the case. Berger, who wrote a concurring opinion for the court of appeals, won election to the Supreme Court in November. The high court also agreed to accept a “friend of the court” brief in support of the city that was filed by the Lawyers’ Committee for Civil Rights Under Law.