Split Appeals Court rejects TV reporter’s records request from 2023 Charlotte shooting

A split North Carolina Court of Appeals panel has rejected a Charlotte television reporter’s attempt to secure the names and addresses of private security guards involved in a fatal 2023 shooting.

The court’s majority ruled that Allied University Security Service, or AUS, was not required to provide the information to WBTV investigative reporter Nick Ochsner. The 2-1 decision upheld a trial judge’s ruling rejecting Ochsner’s request.

The information is tied to a September 2023 incident, when two AUS guards were called to a report of a trespasser urinating outside a commercial building. The trespasser fired a gun at the security guards while attempting to flee, according to the Appeals Court.

After the Charlotte-Mecklenburg Police Department arrived to investigate the shooting, Ochsner “requested from both AUS and CMPD the names and addresses of the AUS security guards involved in the shooting. CMPD provided some information to Petitioner but ultimately declined the request to reveal the identities of the AUS officers. AUS did not disclose any information to Petitioner,” the majority opinion explained.

“On appeal, Petitioner argues that the trial court erred in determining that AUS was not required to produce any records or communications pursuant to N.C.G.S. § 132.1-4(c),” wrote Appeals Court Chief Judge Chris Dillon in an unpublished opinion released Wednesday. Unpublished opinions have limited value as precedents for future cases.

“General Statute 132-1.4 was created to provide protection for records of criminal investigations and intelligence information,” Dillon explained. “Subsection (a) states that, generally, records of criminal investigations conducted by public law enforcement agencies are not considered public records.”

Yet subsection c of the same law lists exceptions, including the time, date, and location of an incident and the “name, sex, age, address, employment, and alleged violation of law of a person arrested, charged, or indicted.” Another exception makes public the “name, sex, age, and address of a complaining witness.”

The private security company “falls within the definition of a public law enforcement agency,” Dillon wrote.

“Here, AUS was investigating/preventing the crime of trespassing when the trespasser was fatally shot, as falls within the definition of a public law enforcement office,” Dillon added. “However, the event AUS was investigating was the trespass. We do not believe that any of the exceptions found in subsection (c) apply to AUS’s actions concerning the trespassing beyond the information already made known to Petitioner. And once the trespasser was killed, there was nothing further to investigate in connection with the trespassing charge.”

Authorities provided Ochsner the information required by state law, Dillon explained.

“We conclude that Petitioner is not entitled to AUS employee identities under subsection (c). We note that no one was arrested, charged, or indicted for the shooting. No one was placed under arrest for the shooting. There was no complaining witness concerning the shooting,” Dillon wrote.

“We have also reviewed the record and arguments concerning the 911 call,” he added. “We note that neither Petitioner nor Respondent provided the trial court with any evidence or arguments pertaining to the communication methods used by AUS and CMPD employees. The trial court reviewed the records at issue … and determined that disclosure of this information was not warranted.

Judge John Tyson joined Dillon’s opinion. Both are Republicans. Judge Toby Hampson, a Democrat, dissented.

“I would vacate the trial court’s order and remand for further proceedings,” Hampson wrote. “The Opinion of the Court errs by concluding AUS is not required to comply at all with the disclosure requirements of N.C. Gen. Stat. § 132-1.4(c)(1)-(6),”

“There is no dispute AUS — a company police agency commissioned by the Attorney General — … constitutes a public law enforcement agency as defined by N.C. Gen. Stat. § 132-1.4(b)(3),” he added. “As such, AUS has a clear obligation to disclose public records,” he added.

“Certainly, AUS has a duty to provide public records related to its officers’ initial response to the report of public urination,” Hampson wrote. “The majority, however, reasons that as AUS was not the investigative authority with respect to the shooting, AUS has no duty whatsoever to comply with public records requests.”

“In my view, this narrow analysis parsing out a developing law enforcement investigation into separate incidents — and thus carving out AUS from any responsibility to provide public records or to present potentially applicable records for in camera judicial review — is erroneous,” the dissent added.

“At a minimum, the trial court’s order should be vacated and this matter remanded to compel AUS to at least produce pertinent records for review related to its investigation and response to the reported event … on the night in question,” Hampson wrote. “This includes — rather than excludes — the shooting. The shooting was part of the AUS investigation into the alleged public urination/trespassing complaint.”

“Indeed, even if one views the shooting as an entirely separate incident with no connection to AUS responding to the alleged public urination/trespassing complaint, AUS still retains a responsibility to disclose public records related to its involvement in the shooting itself,” Hampson wrote. “All indications from the Record are the alleged perpetrator opened fire on the AUS officers, thereby allegedly committing — at a minimum — an assault on public law enforcement officers and potentially attempted murder. AUS officers responded in self-defense.”

“I have no problem concluding there was, at least, an ‘apparent violation of the law.’ Moreover, this apparent violation of the law was reported to AUS — a public law enforcement agency,” Hampson wrote.

The post Split Appeals Court rejects TV reporter’s records request from 2023 Charlotte shooting first appeared on Carolina Journal.