By Don Hunter
Anchorage Daily News
ANCHORAGE, AK - Anchorage police executed a search warrant Wednesday at the Daily News and took more than 100 unpublished photos of the scene of Sunday night's shooting at the Anchorage Football Stadium, then returned them a few hours later after learning that the seizure violated a federal law that prohibits almost all searches of newsrooms.
Police also returned a video seized with a similar warrant from KTVA-Channel 11.
Police officials said they may seek court-ordered subpoenas for the photographs and video, which detectives believe may help them investigate the shooting that left a 21-year-old man hospitalized. Police are seeking witnesses. Among other things, the images may help them identify people who were at the pick-up football game where the shooting broke out, deputy chief Ross Plummer said Wednesday night.
The newspaper has offered police more than three dozen photos that have been published, Daily News editor Patrick Dougherty said, but will resist a subpoena for those that have not been published.
"Because of intense interest in this event, we've published an extraordinary number of photographs from the shooting," Dougherty said. "All of those photos have been offered to police -- without a search warrant or a subpoena. I have made clear to police there is no information available in unpublished photos that isn't available in the published ones."
Staci Feger, news director at KTVA-TV, said police took video that aired on the station. Detectives weren't asking for any material that hadn't aired, she said. The station will not contest a subpoena for the video if presented with one, she said.
News organizations served with a subpoena have the right to contest the order in court before turning over the material sought and argue before a judge why the information should be kept confidential.
Daily News photographer Matthew Ellis was taking pictures of a baseball game at Mulcahy Stadium on Sunday night when several bursts of shots rang out at the pick-up football game in the adjacent football stadium. Ellis shot photographs of people fleeing the stadium, tending to a wounded man and simply looking on.
Dougherty told newsroom employees at a meeting Wednesday afternoon that he told detectives they could have all 39 images the paper put on its Web site, www.adn.com, Tuesday night.
Police officials rejected the offer and instead said they want all of the images, published and unpublished. When detectives arrived with the search warrant, they had not yet viewed the photos online.
Police officials said detectives have since viewed the photos but believe there might be details in the unpublished photos that could be important in the case.
"We don't know which ones can help us," Plummer said. Some of the pictures might help police identify people, their positions and what they were wearing. "If people say they're not there and we see a picture of them standing on the 50-yard line ...," he said.
Police spokesman Lt. Paul Honeman said, "There could be a photo, empty, with no one in it, but maybe there's something useful there. We won't know until we look."
Dougherty said that as a part of the community, the newspaper shares an interest in solving crimes.
"But, like almost all newspapers, the Daily News has a policy against providing unpublished material -- whether it is notes, photographs, documents or tape recordings -- to any external agencies or individuals," Dougherty said. "That policy allows our journalists to gather information we can deliver to the public, including the police. Without that ability, we cannot fulfill our First Amendment responsibility. It's a principle we must defend, and can defend in this case without preventing police from doing their job."
News professionals say providing unpublished materials can compromise the paper's autonomy and undermine readers' confidence in it.
Dougherty said the newspaper cannot become an investigative tool of police, other government agencies, or lawyers involved in civil suits.
Lucy Dalglish, an attorney and executive director of the Virginia-based Reporters Committee for Freedom of the Press, said it's important for people to believe they can come to reporters with information without fear that what they say will simply be turned over to authorities upon request.
"If newspapers are perceived as, or are, agents of the government, people will not feel free to come forward (to them) with evidence," Dalglish said, "Let's say, it's evidence of nefarious behavior by police officers."
Dalglish and other Outside media lawyers contacted Wednesday said it's rare for law enforcement agencies to secure search warrants for newsrooms. That's because Congress passed a law called the Privacy Protection Act of 1980 specifically to shield newsrooms from search warrants unless "there is reason to believe that the immediate seizure of such materials is necessary to prevent the death of, or serious bodily injury to, a human being," or unless there is probable cause to believe a person in the news organization has committed a crime.
Most news organizations and law enforcement agencies are aware of that law, Dalglish said.
That was not the case in Anchorage on Wednesday. Neither police, the judge who issued the warrant, or newspaper officials were immediately aware of the federal law, and Dougherty provided all 160 published and unpublished images on a DVD when detectives served the search warrant. After he contacted the newspaper's attorney, John McKay, McKay spoke to the judge who signed the warrant, and the judge directed the detectives to return the photos and video, Dougherty said.
The problem with search warrants, Dalglish and San Francisco media attorney Thomas Burke said, is that they allow law enforcement agencies to simply march into a news operation.
"The most onerous thing about a search warrant is it's a police presence in a newsroom," Burke said. "It is literally the arm of the state in the newsroom, telling the newsroom what they will be giving them. It raises serious concerns about what (else) they're seeing. Concerns about sources who have talked with the newspaper (or who may be in the newsroom), who have nothing to do with" what police are after.
"To go to a search warrant rather than the subpoena route is absolutely unusual and a very dangerous precedent," Burke said.
Dougherty said police initially had contacted a Daily News photo editor about getting the unpublished photos a day earlier. The editor told detectives the paper's policy is not to provide unpublished photos to anyone without a court order.
Dougherty said he decided to publish the gallery of photos online, in part to avoid a conflict between police and the newspaper's policy.
Honeman, the Anchorage police spokesman, said detectives simply wanted to get all the paper's images of the crime scene, and thought they had been advised the photos would be provided if they had a subpoena. He and Plummer said that, in Alaska, police usually can't get subpoenas until an investigation reaches the grand jury stage.
"We felt that using the search warrant was tantamount to a subpoena," he said. "It wasn't like we were going to come in and seize storage (equipment)," he said.
This story is republished from the Anchorage Daily News with their permission.