Appeals Court Denies Qualified Immunity For Transit Cop Who Arrested A Journalist For Taking Pictures Of EMS Personnel
from the try-to-keep-up-(with-policy-changes) dept
Last year, a federal court offered its sympathies -- but only limited recourse -- to a photographer who suffered a bogus "stop photographing us" arrest at the hands of a Dallas Area Rapid Transit (DART) cop.
Avi Adelman, a freelance journalist, was photographing EMS personnel responding to an apparent overdose. DART officer Stephanie Branch decided this just wouldn't do. She approached Adelman and got between him and the scene he was photographing. The officer then started laying down bullshit about "establishing a perimeter" and how his documentation was violating the HIPAA rights of person being attended to.
(If this crap about "HIPAA violations" sounds familiar, it's because law enforcement officers either don't understand how HIPAA works or they hope the person whose Constitutional rights they're violating doesn't understand how HIPAA works. This was the same excuse used by a Denver cop to detain a journalist who was recording the apparent arrest of a naked mentally-ill person in the middle of a public street. Just in case there are any cops lurking here, HIPAA violations occur when someone releases private medical info to unauthorized parties. It never happens when someone is suffering a medical emergency in a public area.)
Back to the DART case: despite Officer Branch including twenty-three false or inaccurate statements in her account of the arrest, she managed to dodge being directly held responsible for her violation of Adelman's First Amendment rights. Since the Fifth Circuit didn't clearly establish a right to record public servants until 2017, Adelman's 2016 arrest happened too soon for him to use that precedent to pierce Branch's qualified immunity. But Officer Branch was still on the hook for the Fourth Amendment violation. She appealed, but going up a level hasn't changed anything for the officer.
On appeal, the Fifth Circuit has upheld the lower court's decision, preventing Branch from eluding responsibility for violating Adelman's Fourth Amendment rights. Branch claimed she was unaware of the photography policy DART had put in place in 2014, which expressly permitted the actions Adelman was engaged in when Branch decided to arrest him.
But Officer Branch's actions were so obviously unreasonable, another officer and an EMT had this conversation while Branch was hassling the journalist. From the decision [PDF]:
DFR 1 – He was just taking pictures right?
Officer Cannon – Yea[h] that’s why I don’t know why she’s giving him a hard time[.]
DFR-1 – Why is she going crazy?
Officer Cannon – I don’t know[,] that’s going to be on her[.] [H]e can take all the pictures he wants[,] that’s why I’m not getting involved in that. . . .
DFR-1 – He knows he wasn’t doing nothing wrong so. . .
Officer Cannon – I don’t know why she . . . . There was no need for that[.]
DFR-2 – Yea[h] I don’t know where that idea came from but this is . . . because there is freedom of the press[.]
Her own agency came to this conclusion after an internal investigation:
“Adelman was not breaking any laws and would not lead a reasonable person to believe that he was committing a crime or had committed a crime or [was] about to engage in committing a crime. . . . [T]herefore the arrest of Adelman for criminal trespass was not based on sufficient probable cause.”
It also had this to say about Branch's actions:
“The evidence indicates that Officer Branch did violate the DART Administrative Employment Manual and did not refrain from activity which was illegal or could reflect negatively on DART when she made various inconsistent or mistaken statements on her DART Police [I]ncident Report . . . and made the arrest of Avi Adelman for criminal trespass.”
The court points out in a footnote that even if Branch was not present when the 2014 policy permitting photography was instituted, this failure to familiarize herself with DART policies is on her.
Branch asserts that she was reasonable in believing she had authority to order Adelman to leave because she was on sick leave when DART implemented the new Photography Policy that permits the public to take photos on DART property. [Branch was on sick leave from May 2014-January 2016. The policy was enacted June 2014.] The old policy apparently would have prohibited Adelman from being on DART property if he wasn’t using it for “transportation purposes.”
[...]
But Branch’s mistake was not reasonable. She didn’t misinterpret an unclear policy or law; she simply failed to learn about DART’s updated policy. And “an officer can gain no Fourth Amendment advantage through a sloppy study of the laws [s]he is duty-bound to enforce.” Heien, 135 S. Ct. at 539–40.
The case now goes back to the lower court where it seems likely Officer Branch won't be able to talk a jury into siding with her should the litigation reach that point. The established right to photograph public servants came along a little bit too late to help Adelman on his First Amendment claims, but at least he can still go after Branch for her bogus arrest and the night he spent in jail.
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Filed Under: avi adelman, civil liberties, dart, ems, free speech, photographing police, qualified immunity, stephanie branch, transit police
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Where's a cloning machine when you need one...?
But Branch’s mistake was not reasonable. She didn’t misinterpret an unclear policy or law; she simply failed to learn about DART’s updated policy. And “an officer can gain no Fourth Amendment advantage through a sloppy study of the laws [s]he is duty-bound to enforce.” Heien, 135 S. Ct. at 539–40.
A court that actually didn't allow ignorance of the law to protect a cop from responsibility for their actions? Talk about an all-too-rare action, now if every other court in the country would follow suit that'd be great.
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Re: Where's a cloning machine when you need one...?
The problem with every other court in the country agreeing that LEO's should know the laws they enforce is that the Supreme Court has already said law enforcement officers don't need to know the laws they enforce. While I agree with the 5th Circuits decision in this case, it might be a bit risky, and other courts may not dare to take that risk.
Still, if several do, there is the chance that the SCOTUS might revisit their previous decision, and I sure hope they do.
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Re: Re: Where's a cloning machine when you need one...?
Looks like it could be more of a case because DART had a policy on taking photos and recently updated it, it's a policy she should have been aware of rather than say an obscure law that she may not have known about, like not stealing when carrying out a warrant or shooting someone's dog...
Also likely stems from the way immunity seems to work for Police in America where they can do what they want unless they have been previously told that that exact circumstance isn't legal - Basically there is a policy saying don't stop people taking photos, but not one about not stealing or shooting pets (mainly because until recently people didn't think you needed to tell the police not to carry out those actions), so you lose immunity for the first thing but not the others.
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Re: Re: Re: Where's a cloning machine when you need one...?
Here’s a basic overview:
While Officer Branch was on leave/absent, DART’s policy was updated so that it was absolutely crystal clear that people can take photos in public or on DART property as long as they don’t physically obstruct them.
Some time after that, Branch questioned a person taking photos from a reasonable distance, asked them to leave, and then arrested and charged them. This was in clear violation of the new policy, even if it wasn’t a clear violation of the old policy.
Additionally, some time after that, an appellate court decision made it clear that people have the right to photograph any actions by government employees done in view of the public.
Because qualified immunity can’t be denied unless the law was clear at the time of the offense, the court decision was not enough to remove qualified immunity for Branch. However, because DART policy was clear on the matter at the time of the offense, that was enough to deny Branch qualified immunity, as the test was not whether Branch had actual knowledge of the policy at the time but whether a reasonable officer with her position at the time would have the requisite knowledge of the law/policy.
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Wait, what?! A court declared this? Jesus... If that gets out it's going to upset a whole lot of modus operandi for cop shops around the nation.
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Re:
Nah, they just ignore it.
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Officer Cannon – I don’t know[,] that’s going to be on her[.] [H]e can take all the pictures he wants[,] that’s why I’m not getting involved in that. . . .
Could there be any clearer evidence that all cops are bad? Their entire job quite literally consists of "getting involved in that." It is the only reason law enforcement was even invented in the first place.
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Re:
Wait, so the other officers' declination to participate in the illegal arrest is proof of their moral failings?
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Re: Re:
Well no. Its their acknowlegement amont themselves that there was an illegal arrest underway and their failure to act to uphold the law, but just let it continue, is the proof of their moral and ethical failings.
I havent seen any evidence of their particular statments as to what happened, but put money that those statment didn't include their conversation, let alione taking their. . . . Lets call it viewpoint . . . . of the arrest to their supervisors
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Re: Re:
No, their cowardly decision to not step in and stop what they clearly knew was against both the law and department regs is proof of moral failings. This cop is just as shit as Branch.
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Re:
That's a common misconception. Their job is not to stop crimes, their job is not to protect people from unlawful activity, their job -- as described by our courts on many occasions -- is to enforce the will of the state. The state has no interest in having some of their employees arresting another of their employees, so that really is not their job.
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So many idiots throw out HIPAA B.S. it's beyond laughable. You can't throw out that crap at the public or anyone taking pictures. It's on the Medical people, or the police, or whoever is getting that private info, it's THEIR responsibility to keep it out of the public eye's. That means hiding the personal info so the public can't see it or record it. It's not the Public responsibility. If there is someone in public that needs help, block the view. Take the person out of the public.
HIPAA has nothing at all to do with the General Public, yet these moron's throw it out there like they know,.. they don't!!! HIPAA applies to THEM, not us, the public. It's really that simple.
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Re:
HIPAA applies to THEM, not us, the public. It's really that simple.
Therein lies the problem - the police aren't used to laws that apply to them but not the serfs, peons and civilians.
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To all cops: if it’s outside or in a public place, and anyone in the area can see it, taking photos of it isn’t a HIPAA violation.
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Re:
Taking photos in a private place isn't a HIPPA violation either.
For a HIPPA violation to happen, first, the person must have a duty to protect healthcare information.
My coming in and taking pictures of your operation in progress might violate some other laws, it still wouldn't be a HIPPA violation because I have no duty to protect that info.
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Re: Re:
HIPAA does apply to the cop, and if the cop is guarding an acident, one could say it's a HIPAA issue for the cop to talk about the injuries a person has (or medical history, which may come up in this situation).
Of course even the cops do not think this would hold up and the camera guy was not holding a long range mic to try to capture the injured persons statement's.
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Re: Re: Re:
That's still not taking a picture. And even holding a long-range mic specifically to record EMS/Cop/patient interactions is not a HIPPA violation.
Cops can cordon off enough of an area to work and allow EMS to work. That's it. They can't claim 'HIPPA' means they must shut down everyone else who might be able to gain medical information on the patient.
And I really don't think HIPPA applies to a beat cop securing a scene.
Medical data discloses to law enforcement can - in certain situations - impose an obligation to protect that information on the LEO and his agency, but incidental exposure to medical information? I do not believe so.
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Re: Re: Re: Re:
I dunno, I do see a bit of a conflict here. I write software for pharmacies, so I've got access to a lot of production data about peoples' prescriptions and get the HIPPA training every few months and all of that. Part of that is not sharing information and not looking at anything we don't absolutely need to look at. But part of it is also preventing other people from getting access to this information -- not letting random people into the building, not leaving documents on the printer, shredding stuff and disposing of any information into special padlocked boxes.
The photographer has no legal requirement to protect that information, but the cops and EMTs do. But what exactly does that mean in a public area? If the EMTs need to discuss about this patient...do they go in the ambulance and close the doors? Do they do their best to huddle and whisper? Or should the cops be pushing everyone back far enough that the EMTs don't have to worry about it? Not saying the cop's actions are reasonable in this specific case, but I don't think it's fair to say there's absolutely no HIPAA concerns either.
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Re: Re: Re: Re: Re:
Sure - and this is what the cops initially did. But taking a photo of a patient lying in public is not privileged information. Imagine if this had happened on a surface street and the cops had a duty to secure all line of sight to the incident.
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Re: Re:
Oh, I know. I was intentionally choosing what I considered the most clear-cut case with no exceptions or gray areas at all. Technically, taking photos of HIPAA-protected documents could be construed as a violation of HIPAA, or at least there could be a somewhat reasonable argument that it is. However, such a thing is highly unlikely to occur outside or in a public place.
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Re: Re: Re:
No, technically taking photos would not be a violation in these cases.
The cop might have a duty to prevent photography - I don't agree in this situation as its completely public - but the photographer does not. As such, his taking photos could not be a HIPPA violation, even if the cop had a duty to prevent that from happening.
Its like the Pentagon Papers - the person who disclosed that classified material to the media violated a duty to protect it. But the media that received it had no such duty and so were free to disseminate as they saw fit.
Now, there's a difference between getting this information and soliciting someone to violate HIPPA to get it - but that's not what happens when a photographer takes pictures in a public place.
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Re: Re: Re: Re:
Again, I’m aware of that. I’m giving an example of the most reasonable—but wrong—understanding of the law such that taking a photograph could be charitably construed as a violation.
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Re: Re:
HIPPA laws apply to medical personnel.. Not to private citizens, it's up to them to protect people's information.. Correct.. Also it was a public venue which permits photography with no restrictions..
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“an officer can gain no Fourth Amendment advantage through a sloppy study of the laws [s]he is duty-bound to enforce.”
If only more qualified immunity cases hinged on this interpretation.
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I wonder if that judge is going to get scolded.
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I'm pretty sure its an 8th amendment violation to torture language so badly.
All in service of ensuring no one has to write down that she engages in illegal activity and/or conduct that could reflect negatively . . .
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In the Heien case, the Supreme Court ruled a “police officer’s reasonable mistake of law gives rise to reasonable suspicion that justifies a traffic stop under the Fourth Amendment.”
I guess 'Sloppy study' doesn't get you a pass - but you're absolutely allowed to not study at all and that'll do ya.
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And Shelton v Barnes says that knowledge couldn't reasonably be expected from police officers anyway.
https://assets.documentcloud.org/documents/2850156/Us-v-Barnes.pdf
“As an officer untrained in the law, S. A. Bradford cannot reasonably be expected to understand the nuances of the law, especially the ‘maze of Medicare regulations’ — as Dr. Barnes described them — at issue in this case.”
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Allthe cops Iv seen...
On TV..tend to be abit HEAVY...Esp the ones on the news..
Are they wearing Armour, ALL THE TIME??
I dont know what trainign the cops are getting.. and SOME of them seem to have forgotten Anything they learned..
Learned is another big word, it means they were taught something, not TOLD TO READ Chapters 1-96..
Would love for them to be Taught the basics.. and the rest of the book, they can read at leisure...
BUT, how many laws have been on the books for Sooo long that they are Stupid or redundant.. FEW states ever go thru the old laws and clean them up or get rid of them.
What is a wonder, is she was Sick for 1.5 years, and wasnt required to relearn things that had changed.. And nothing is said about how long she has had that job.
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Re: Allthe cops Iv seen...
That's just it. The court said she was required to (re)learn things that had changed.
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Re: Re: Allthe cops Iv seen...
Judge said..
But did the company require it..
Or just stick her back on work, with no Updates.
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Re: Re: Re: Allthe cops Iv seen...
That doesn't really matter. She's on the legal hook for understanding the laws she was tasked to enforce regardless of how her direct employer handled training. She should have taken personal responsibility to ensure she was up to speed on those laws and now is going to face the consequences of failing in that responsibility and acting in bad faith.
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Re: Allthe cops Iv seen...
Usually. Kind of says something about them, doesn't it?
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Officer Cannon should also be reprimanded
The other cop who had the conversation with the EMT saw that his partner was being unreasonable and engaging in activity that he knew to be illegal, and did nothing.
Whatever happens to Officer Branch should happen to Officer Cannon as well.
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Re: Officer Cannon should also be reprimanded
The cops are legally allowed to stand there and watch while someone stabs you to death -- this has been upheld by the courts more than once -- but you expect a court to rule that they are required to intervene when the perp is one of their own? Never gonna happen...
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so...
hiipa is not applicable here? say what?
if i take a picture of you walking into the "clinic" thru the front door public entrance - it's public right?? and post it on facebook - maybe your significant other sees that post - and you didn't want anyone to know your visiting a doctor for something. You'd probably say the same thing.. That's a violation of......... i'm wrong for ............
its is NO FRICKEN different for any emergency scene out there. Let Law enforcement, EMS, FIre do their jobs.... let them do the necessary notification (if it's needed) - then after all that - if there is a public need for the release of info - have at it..
until then - put your camera away
and if i'm there - i'mm going to tell you the same dam thing. put it away. or get LE involved.
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Re: so...
No, your first example is not a HIPPA violation.
HIPPA imposes affirmative duties on a specific class of people. Its not a generic 'this information can not be released' thing. Its if you're one of these people them you may not release this information without permission (except under defined circumstances) and must protect it from disclosure.
Joe Blow the paparazzi has no duty under HIPPA. He shouldn't get access to this information and if he does its because someone slipped up, but if he does he may do with it as he wishes.
This is a long, long, long, long standing legal precedent. If you, Rando Calrisian internet commenter, came upon the nuclear launch codes for the US arsenal you would be perfectly within your rights to do . . . whatever with that. Sell it to the Russians. Give it to the news. Publish it yourself.
Because there Rando Calrisian has not agreed to take on a duty to protect classified material.
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Re: Re: so...
All true more or less, but HIPAA is a bit more than just not publishing the information. The first part is that you shouldn't even have the information unless you absolutely need it. You're a doctor, you see your neighbor coming in to your clinic, but if they aren't your patient you are not allowed to go look up their file regardless of what you do (or don't do) with that information. The second part is that you don't share that information yourself, which ought to be obvious enough. And the third part is that you actively protect that information. Encrypt it, shred it, lock the shredded documents in a padlocked trash can, don't let random people walk around the office, don't take a photo of the office holiday party just on the risk that it might have some information visible in the background. Just because you aren't the one sharing it doesn't mean you aren't the one responsible for it being shared.
So, if Joe Blow the paparazzi is standing in the clinic's parking lot photographing everyone who comes in...there's a fairly strong argument that the clinic security/staff needs to go tell him to leave or have him arrested for trespassing. It's a bit less clear if he's standing on a public street with a big zoom lens, although if they want to play it safe they may want to consider putting up a barrier or awning or something. HIPAA does require you to take reasonable precautions against incidental disclosure, not just intentional leaks. They can't arrest him for trying to take pictures, because that's not illegal. They do have to try to prevent him from taking pictures of anything confidential anyway, as they have a duty to protect that information. If they're spending so much time trying to block him that they aren't able to actually help the person, then I could see an argument that his actions were illegal interference. But in order to reach that point you probably need some reasonable belief that he's actually trying to photograph confidential medical information, rather than just photographing public employees at work in a public place -- there's no duty to protect against the latter.
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Re: Re: Re: so...
true that person would not be releasing "medical" info directly associated with a person. But if it was posted on social media - and this goes for anything, that removes the person who is photographed from any decision on who/what/where that picture is disceminated to. Another person viewing the picture doesn't have the facts - just what the person posting it wants to portay (good or bad).. In the case of accidents, ems, fire.. If you were immediate family of the person involved i doubt seriously that you want to find out about it through social media...
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Re: Re: Re: Re: so...
Much like cops don't want people to find out through social media when they shoot someone, and politicians don't want people to find out through social media if they're caught taking a bribe, and college students don't want (certain) people to find out through social media if they're drunk and stupid at a party, and criminals don't want anyone posting the surveillance footage of them.. And none of those are illegal either. That is not a sufficient basis to prohibit something.
"But if it was posted on social media - and this goes for anything, that removes the person who is photographed from any decision on who/what/where that picture is disceminated to. Another person viewing the picture doesn't have the facts - just what the person posting it wants to portay (good or bad)"
That would seem to cover literally any photo that isn't a selfie or a completely human-free landscape. And even selfies if there's anyone visible in the background, or if you're dong a selfie with someone else. If that's the line you use to determine what is legal, you'd be turning nearly everyone with a camera into a criminal.
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Ingorance of the law..
Another affirmative Action hire.. She should be fired or made to pay the lawsuit... On medical leave for two years? Nice! ... Then didn't make up her training that was missed.. She's too stupid to wear a badge.. This is the best job she'll ever get or have.. Fire Her she lied on her report and is a liability to the taxpayers...
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