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Judge rejects Kan. school's bid to suppress video

Published on -5/25/2012, 9:53 AM

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WICHITA, Kan. (AP) -- A federal magistrate judge rejected on Thursday efforts by a Kansas military school to bar distribution of a mess hall video depicting a student pleading for help as an adult instructor tries to make him stand on two broken legs.

St. John's Military School in Salina sought the protective order last week after The Associated Press requested comment on the cellphone video clip that shows him struggling to stand amid laughter from fellow classmates that drowned out his cries. The families argued Wednesday that the issue was moot because The AP had already distributed a story containing the video.

The school contended that it is trying to protect students' privacy. Families of ex-cadets who sued the school over alleged abuse countered that St. John's was trying to suppress media coverage of the litigation.

U.S. Magistrate Judge Kenneth Gale ruled that the request was beyond the scope of the present case and not the proper subject of a protective order. He said any unlawful use of images of minors may subject unknown persons to liability, but there are no grounds alleged by the school sufficient to support such an order from this court in this case.

But Gale was apparently troubled by allegations from plaintiffs that the school had confiscated cellphones and deleted hundreds of pictures and videos, including some which depicted abuse of students. And the school's response -- beyond a general denial -- that it had acted in accordance to its long-standing policy on cellphone usage did little to assuage the judge's concerns.

Gale issued an order specifically prohibiting the school, its officers and employees from deleting or causing to be deleted any photograph, video, audio or other data from cellphones or other electronic storage devices depicting any event or activity occurring at the school or any current or former students. His order applies equally to phones and devices owned by private individuals or by the defendants.

"The seriousness of the allegations of this motion, and the qualified denial by the Defense, raise the Court's concern sufficiently to justify the imposition of an order," Gale wrote, noting the duty to preserve evidence would not be excused by a policy allowing or requiring destruction.

But the judge refused to order as the families had wanted the the appointment of a forensics expert to examine and preserve electronic evidence at the defendants' expense absent proof that such destruction had taken place.

The plaintiffs' lawyer had informed the court in a telephone conference earlier this month that the basis of that claim was a confidential source which counsel is not currently willing to identify, making proving the allegations in an evidentiary hearing impossible.

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