The Volokh Conspiracy
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Court Allows Sealing of Video of Police Shooting of 11-Year-Old Aderrien Murry
The boy's name has been publicly reported (apparently with his parents' permission), but the court nonetheless concludes that releasing the video would violate his privacy. (The grand jury has just declined to indict the police officer.)
From Murry v. City of Indianola, decided Thursday by Judge Debra Marie Brown (for stories on the incident, which confirm that the boy's name has been broadly reported, see here):
The plaintiff, A.M., an eleven-year-old boy, was shot in the chest by an Indianola Police Department officer responding to a domestic violence call at the home of his mother, Nakala Murry. The father of one of Murry's children, John Nolden, came to her home in the very early hours of May 20, 2023. His conduct and a history of domestic abuse caused Murry to fear for her safety and that of her two children and two nephews who were in the home. According to the police officers, they were unaware of the presence of children at the home, but were aware of the history of violence by Nolden.
One of the officers, the defendant, Greg Capers, shot A.M., though the parties give slightly varying descriptions of how the shooting happened. Caper's body camera captured the events giving rise to this case, including the events leading to the shooting of A.M. and the immediate aftermath of the shooting. Since the filing of this action, the plaintiff, Nakala Murry, plaintiff's counsel, and A.M. have all appeared in numerous articles, including nationwide print, and in broadcast media.
The defendants filed a motion for judgment on the pleadings and have proffered this body camera footage as an exhibit to the motion, but have moved for leave to file it under seal, at least for the duration of the litigation … .
The plaintiff—A.M.'s mother, suing on A.M.'s behalf—opposed the sealing, but the court disagreed:
Fundamentally "[j]udicial records belong to the American people; they are public, not private, documents." Therefore, "the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents." The Fifth Circuit Court of Appeals requires "a working presumption … that judicial records should not be sealed." The courts should exercise their discretion to seal judicial records "charily." A court that considers sealing such records abuses its discretion if it "ma[kes] no mention of the presumption in favor of the public's access to judicial records" and fails to "articulate any reasons that would support sealing."
Maintaining the public's right to access court records promotes "trustworthiness of the judicial process, … curb[s] judicial abuses, and … provide[s] the public with a more complete understanding of the judicial system, including a better perception of its fairness." Because of these interests, courts "heavily disfavor sealing information placed in the judicial record.
However, the public right to access is not absolute…. [T]he Federal Rules of Civil Procedure and case law provide special protections for minors involved in litigation. Likewise, Mississippi statutes indicate a strong public policy favoring maintaining confidentiality of minor's sensitive records. Though its statutes governing youth court records are not directly applicable, these statutes strictly limit access to court records involving minors to protect their privacy. "Courts have recognized that the privacy of children may constitute a compelling interest that outweighs the presumption in favor of public access.["])….
In cases like this one where the subject matter involves allegations of serious misconduct by public officials or parties of a public nature and matters of legitimate public concern, there is a greater importance in allowing disclosure. This case has already been the subject of much local, state, and national attention. The defense has complained to the court that plaintiff's counsel is seeking publicity, and, admittedly Murry, counsel, and A.M. have all been featured in media appearances and articles. Regardless, this case—without any cooperation from the plaintiffs or their counsel—would have generated public attention and interest….
Notwithstanding all the strong, legitimate interests weighing in favor of transparency in this case, the court finds that the countervailing interests favor non-disclosure and those interests predominate….
The court has reviewed the video. While not graphic, the nature and violence of the video is a consideration counseling against release for multiple reasons. The court "is not blind to the fact that, in this age of social media, videos of alleged police misconduct and violence, when released, become instantly and pervasively available to and scrutinized by the public on a nationwide scale." Additionally, unlike by-gone days, when even scandalous evidence, might after a time quietly moulder in court files, social media assures both overwhelming current exposure, and that this incident will remain captured on the internet forever. The video, once out, is likely to haunt all participants, including this child, long after this litigation has ended….
Widespread dissemination of video evidence can complicate the task of this court in seating an impartial jury. If the ongoing investigation by the State of Mississippi should result in criminal charges, widespread distribution of the video could adversely impact the ability of the courts to provide a fair trial for the accused…. Given the publicity already generated, the court finds its public release would make the seating of an impartial jury difficult in this case.
The court's primary concern and reason for finding that this video should be sealed, however, is it depicts the shooting of the minor plaintiff, a matter of great sensitivity. The court's general solicitude for the privacy rights of minor litigants begins with the requirements of Rule 5.2 of the Federal Rules of Civil Procedure, which prohibits the public identification of any minor in any pleadings or filings before the court, except by initials. Notwithstanding the rule, the minor's name is already public, but the court feels A.M. has a right to privacy and is due special consideration in this action because he is a minor.
As a minor, he lacks the capacity to waive those rights or to assess the impact of the release of this video on his life, now and in the future. The court finds it cannot predict how destructive or disruptive the release of the video might be for A.M., over and above any impact from the presently existing public exposure, but the courts routinely protect the privacy interests of minors, even in matters much more mundane than in A.M.'s case….
While the allegations and defenses regarding the incident are public, that information is different not just in degree but in kind from the video. A.M.'s appearance in the video is only a brief part of the approximately five-minute video, and the shooting itself is dimly lit. Nevertheless, even if A.M. could not be identified from the video, the court cannot protect his privacy and prevent linkage of the video to the child.
Because his identity and face have both been made public, obscuring his face does nothing to protect the child from whatever fallout comes from the release of the video. The court's choice is to release the video with indeterminable impact on the privacy and life of A.M. or to withhold it, despite the legitimate public interest in this case.
Finding it would be reckless to disregard A.M.'s privacy interests, the court opts to protect the compelling interest in protecting A.M., over the otherwise compelling interests of the public. While recognizing that the defendants have their own interests in avoiding public disclosure, the court concurs with their urging that the video should be sealed from public access….
The clerk of the court shall seal this Exhibit. The court affirms its earlier order that neither party may release all or any portion of the video….
This seems incorrect to me; it will be interesting to see whether there will be an appeal, or a motion to intervene and reconsider filed by some media groups.
