United States District Court, D. Nevada
M. Navarro, Chief Judge United-States District Court
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.
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.
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)).
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).
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).
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
HEREBY ORDERED that Channel 8's requests for copies of
the Longbow Interviews dated March 23, ...