STATE OF NORTH CAROLINA. \ JIN THE GENERAL COURT OF JUSTICE, COUNTY OF MECKLENBURG SUPERIOR COURT DIVISION FILE'NUMBER: 19-CVS-5050 IN THE MATTER OF: CUSTODIAL LAW ENFORCEMENT MOTION TO DISMISS SHOW CAUSE/ AGENCY RECORDING SOUGHT PETITION TO RELEASE CUSTODIAL BY NICHOLAS A. OCHSNER LAW ENFORCEMENT AGENCY RECORDING NOW COMES the Charlotte-Mecklenburg Police Department (“CMPD”), by and through the undersigned counsel, and hereby moves this Court to dismiss the Motion to Show Cause; set aside the Order to Show Cause and Appear entered on April 18, 2019; and release the custodial law enforcement agency body-wom camera recording of Officer Wende Kerl of the March 25, 2019 officer-involved shootii pursuant to G.S. § 132-14A. In support thereof, the CMPD shows unto the Court the following: On March 25, 2019, Nicolas A. Ochsner (“Petitioner”) filed a Petition for Release of Custodial Law Enforcement Agency Recording (the “Petition”) to release recordings “in the moments leading up to, during and immediately after the shooting” from the officer- involved shooting of Mr. Danquirs Franklin on March 25, 2019. (Attached as Exhibit 1 and incorporated herein). . On March 26, 2019, The Honorable Jessie D. Caldwell issued an Order to Provide Custodial Law Enforcement Agency Recording for In-Camera Review and Order to Provide Notice of Hearing requiring CMPD to produce the responsive custodial law enforcement agency recording and a list of personnel whose image or voice is in the recording by April 5, 2019. . On April 4, 2019, CMPD produced one (1) body-worn camera (“BWC”) recording running approximately 2:20 for in-camera review per Judge Caldwell’s order. A hearing was held on April 11, 2019, with The Honorable Donnie Hoover presiding. Present at the hearing were: Petitioner Nicholas A. Ochsner; Petitioner Nathan Morabito10, (representing himself on petition for the same recording under file number 19-CVS-6150, not before the Court in this current matter); Assistant City Attomey Jessica K. Battle, counsel for the CMPD; Assistant District Attorney Bill Bunting; Attomey Michael Greene, counsel for Officer Larry Deal; and Attorney Jeremy Smith, counsel for Officer Wende Kerl Judge Hoover granted the Petition in an Order (the “Order for Release”) directing release of the “custodial law enforcement agency recording related to an officer-involved shooting, under CMPD complaint number 20190325-0901-02.” And placing the following, conditions/restrictions on the release of the recording: “CMPD shall redact civilians’ faces, by blurring. Release to petitioners on Monday, April 15,2019 at 12 p.m., no public release by anyone before 2 p.m.” On Friday, April 12, 2019, CMPD submitted the 2:20 BWC recording blurring the civilians? faces for review per the Court’s Order. CMPD received notice by email from a judicial assistant that Judge Hoover had reviewed the blurred redactions and that CMPD could retrieve the redacted recording. (Attached as Exhibit 2 and incorporated herein). On Monday, April 15, 2019 at approximately 12:00 p.m. per the Court’s Order for Release, CMPD released to Petitioner a USB device containing the 2:20 BWC recording with the blurred redactions of civilians’ faces. At approximately 2:00 p.m. CMPD publicly released the same, On Thursday, April 18, 2019, Petitioner filed a Motion to Show Cause against the Charlotte-Mecklenburg Police Department for violating the Court Orders. An Order to Show Cause and Appear was issued to Chief Kerr Putney on the same date by the Honorable Forrest D. Bridges. Petitioner fails to support his allegations by seeking an affidavit from Judge Hoover who could attest to what recording was submitted for review, but instead supports his allegation by relying on a newspaper article, The Petitioner fails to set forth a factual basis to support the Motion to Show Cause. The Charlotte-Mecklenburg Police Department complied with the Petitioner's request and subsequent Orders for release of relevant video.THEREFORE, the CMPD prays for the following relief 1, That the Court dismiss this matter; 2. That the Court set aside the Order to Show Cause and Appear issued on April 18, 2018; ‘That the Court grant the CMPD’s motion to release the custodial law enforcement agency body-worn camera recording of Officer Wende Kerl of the March 25, 2019 officer-involved shooting; 4, That the Court enter an appropriate sanction against Petitioner for signing such a pleading as appropriate under North Carolina Rules of Civil Procedure, Rule 11 to pay for costs and fees associated with this Motion to Dismiss; and 5. For any other relief as the Court may deem just and proper. Respectfully submitted, this the 18" day of April, 2019. NC Bar No.: 44206 601 East Trade Street Charlotte, NC 28202 Phone: (704) 336-2406 Fax: (704) 336-4107 Jessica.Battle@cmpd.org