EXPLAINER: How is North Dakota shield law supposed to work?

Jan 21, 2022, 11:46 AM | Updated: 12:03 pm

FARGO, N.D. (AP) — The confiscation of a North Dakota reporter’s cellphone by a Bureau of Criminal Investigation agent has shined a light on the state’s 19-year-old shield law, which is aimed at protecting journalists from being forced to turn over notes and other information without a court hearing.

Reporter Tom Simon, who works for Williston Trending Topics News Radio Live, a Facebook outlet, and Coyote Radio 98.5, had his phone taken by agents who were looking for anonymous sources he quoted for a story on the Williston school board. No hearing was held.

North Dakota Attorney General Wayne Stenehjem, after he was contacted by North Dakota Newspaper Association Attorney Jack McDonald about the move, immediately ordered the phone returned to Simon.

Here’s a closer look at the case and the shield law:

WHAT HAPPENED?

Simon, 62, has been covering a dispute involving the school board’s handling of the departure of the district’s former superintendent. Simon’s contacts were sought after Williston police initiated an investigation into leaks from the board’s executive session and enlisted help from the BCI.

At one such meeting last week, BCI Agent Charissa Remus asked Simon to move to a room to talk, at which time Simon said he was asked — and declined — to turn over sources. Simon said another agent confiscated his phone that he left on a table while Remus gave him a search warrant signed by Judge Benjamen J. Johnson. The warrant said an affidavit by Remus declared that information on Simon’s phone likely contained evidence of a crime.

The affidavit by Remus identified Simon as a reporter and said Simon knew “specific and detailed confidential information which would have come from either a board member or from a recording from the executive session.”

A second warrant was signed by Johnson to search Simon’s Verizon Wireless records. The day Simon’s phone was returned, Remus wrote a letter to Verizon telling them to “PLEASE DISREGARD IMMEDIATELY.”

HOW DOES THE SHIELD LAW COME IN?

A bill passed in the 2003 Legislature is titled “Disclosure of news sources and information required only on court order.” The one sentence, 80-word text says information obtained by a journalist cannot be seized without a court hearing to determine if the “failure of disclosure of such evidence will cause a miscarriage of justice.”

McDonald said the law is meant to prevent intimidation of reporters who are gathering news. Nearly every state offers such protections, he said.

“It’s important because it includes what the public will get for information,” McDonald said. “It’s important that the citizens know what is going on before so that they can respond and react to what’s happening in the Legislature, the city commission and in their life in general. That’s how a democracy works.”

Simons’ attorney, Kevin Chapman, said the shield statute involves constitutional amendments regarding freedom of the press and unreasonable searches and seizures of property.

WHAT DID THE STATE’S TOP LAW ENFORCER SAY?

Stenehjem was contrite about the mistake in an interview with The Associated Press last week and said that some people involved in the chain of events were unaware that Simon was protected by the shield law. He acknowledged that seeking a hearing to get a reporter’s information is “not a terrible imposition.”

However, Stenehjem said later in statement to other media outlets that the phone was “lawfully taken pursuant to a valid search warrant issued by a judge” and said he advised the agent of the statute and that it requires “a further court warrant to view the contents of the phone in cases like this.”

Liz Brocker, Stenehjem’s spokeswoman, would not forward follow-up questions and said only that the attorney general’s “statement is accurately reported.”

McDonald said the search warrant “probably” violated the law because the warrant allowed the agent to get the records before the hearing “rather than after the hearing as the law implies.”

Chapman said although he doesn’t fault the judge, the warrant was clearly a violation of the law and there’s nothing in the shield law about obtaining multiple warrants. He said in this case the warrant was “authorization to grab the phone and search it,” something the law is meant to prevent.

“This was not a situation where BCI was just holding the phone to determine whether to obtain a further warrant,” Chapman said. “If that was the case, there would have been no urgency to get the phone returned.”

WHAT’S NEXT?

Chapman said he is researching potential civil rights claims regarding constitutional violations, but would not say whether he and Simon plan to file any complaints. Simon said he directed Chapman to “look at every possible means” to ensure it doesn’t happen to another reporter.

“Tom’s rights were violated. Plain and simple,” Chapman said.

Meanwhile, the investigation against the school board for leaking information has been dropped.

Copyright © The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

AP

The daughters of Ruth Whitfield, a victim of shooting at a supermarket, Angela Crawley, left, and R...
Associated Press

Violent death in America stalks ordinary walks of daily life

WASHINGTON (AP) — In far-flung cities, deadly violence ripped apart the most typical of American spring weekends, driven by rage or madness, the bloodiest by suspected racial hate. The crime scenes represented a cross-section of ordinariness — a grocery store in upstate New York, a California church, a Texas flea market, the streets near a […]
16 hours ago
White House press secretary Karine Jean-Pierre speaks during her first press briefing as press secr...
Associated Press

New press secretary hails barrier breakers who paved way

WASHINGTON (AP) — Karine Jean-Pierre held her first briefing as the new White House press secretary on Monday, crediting “barrier-breaking people” who came before her for making it possible for a Black, gay, immigrant woman like herself to rise to one of the most high-profile jobs in American government. “I stand on their shoulders. If […]
16 hours ago
Former President Donald Trump speaks at a rally at the Delaware County Fairgrounds, Saturday, April...
Associated Press

Federal Election Commission deadlocks, won’t punish Trump

WASHINGTON (AP) — The Federal Election Commission has decided not to take action against former President Donald Trump after commissioners deadlocked over whether his campaign broke the law by masking how it was spending cash during the 2020 campaign. In a letter on Monday, the FEC notified the Campaign Legal Center of the outcome. The […]
16 hours ago
Investigators work the scene of a shooting at a supermarket, in Buffalo, N.Y., Monday, May 16, 2022...
Associated Press

Accused Buffalo gunman followed familiar radicalization path

The 18-year-old gunman accused of a deadly racist rampage at a Buffalo supermarket seems to fit an all-too-familiar profile: an aggrieved white man steeped in hate-filled conspiracies online, and inspired by other extremist massacres. Payton Gendron of Conklin, N.Y., appears to have been driven to action roughly two years from when his radical indoctrination began, […]
16 hours ago
President Joe Biden speaks in the Rose Garden of the White House in Washington, Friday, May 13, 202...
Associated Press

US reaches deal to reopen shuttered baby formula plant

WASHINGTON (AP) — U.S. officials on Monday reached an agreement to allow baby formula maker Abbott to restart its largest domestic factory, though it will be two months or more before any new products ship from the site to help alleviate the national shortage facing parents. Under the agreement, Abbott must work with outside experts […]
16 hours ago
FILE- A BNSF rail terminal worker monitors the departure of a freight train, on June 15, 2021, in G...
Associated Press

BNSF tweaks attendance rules but unions still complain

OMAHA, Neb. (AP) — BNSF railroad is tweaking its strict new attendance policy that upset workers, but the unions that challenged the rules since they took effect in February say the changes don’t go far enough. The railroad has told employees that starting next month it will make several small changes in the formula it […]
16 hours ago

Sponsored Articles

...
Carla Berg, MHS, Deputy Director, Public Health Services, Arizona Department of Health Services

ADHS mobile program brings COVID-19 vaccines and boosters to Arizonans

The Arizona Department of Health Services and partner agencies are providing even more widespread availability by making COVID-19 vaccines available in neighborhoods through trusted community partners.
...
Canvas Annuity

The secret to guaranteed retirement income

Annuities aren’t really a secret, but they are so misunderstood that they might as well be. Once you understand what an annuity is and how it can benefit you, you could decide this “secret” is the perfect supplement to your retirement plan.
(Twitter photo / Coco5)...
Coco5

Suns star Devin Booker’s all-natural sports drink Coco5 perfect for any activity

Devin Booker is leading the Suns in pursuit of their first NBA championship while also working to provide people proper hydration with Coco5.
EXPLAINER: How is North Dakota shield law supposed to work?