Local Governments Stifle the Press: Tape Seizure Permissible, Even Without Warrant

By Elaine Hargrove-Simon, Silha Fellow and Bulletin editor

In a per curiam decision, a three-judge panel of the U.S. Court of Appeals (8th Cir.) found no error in a District Court's ruling in a case involving the seizure of a journalists' videotape of a farewell banquet for city council members. (See Berglund v. City of Maplewood and Zick v. City of Maplewood, 500 Fed. Appx. 805 (2002)). The two cases were appealed separately but were consolidated for consideration by the appeals court.

The case began on October 26, 2001, when Kevin Berglund and Robert Zick attempted to videotape a banquet honoring three departing members of the Maplewood city council for a public access cable television program. They refused to pay the $15 entrance fee and were asked by police officers to leave. A scuffle between Berglund and the police ensued, which Berglund caught on tape. When police arrested Berglund, he passed the tape to Zick. The police ordered Zick to turn over the tape, which police claimed contained evidence of the incident. When Zick refused, he was restrained and the tape confiscated without a warrant. Police made a copy of the tape and returned the original to Berglund within 48 hours. (See "Tape Confiscated from Maplewood Journalists" in the Winter 2002 Silha Bulletin.)

When the two journalists originally took their case to the federal District Court in Minneapolis (Berglund v. City of Maplewood and Zick v. City of Maplewood, 173 F. Supp. 2d 935 (2001)), Judge David S. Doty ruled that the police seizure of the tape without a warrant was permissible because of the possibility of its destruction by Zick; that the contents of the tape were not private because the events recorded had occurred in a public place; that there was no excessive use of force on the part of the police in seizing the tape; that the videotape was copied by police and returned within a reasonable time and could be aired on Zick and Berglund's cable show; that the event was open to any member of the public willing to pay the $15 admission fee; and finally, because the event was social in nature and no official business was conducted that evening, the event was not subject to Minnesota's Open Meeting Law.

John Borger, attorney for Zick, said that the two journalists may consider filing a petition for U.S. Supreme Court review.



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This page contains a single entry by cla published on November 9, 2009 1:39 PM.

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