Iowa Journalist Cleared Of All Charges In Bullshit Prosecution Over 'Failure To Disperse'

from the that's-not-how-journalist---or-the-First-Amendment---works dept

The good news is that Iowa prosecutors' attempt to jail a journalist for being present at a protest has failed. Andrea Sahouri -- who was arrested while covering a George Floyd protest in Des Moines last summer -- has been acquitted of all charges by a jury. But the fact that she was prosecuted at all is still problematic.

Sahouri was arrested by Des Moines police officers while apparently walking away from the scene of a protest. Officers at the scene broadcast conflicting orders from their squad cars. While one loudspeaker told protesters to disperse, another told protesters to "protest peacefully." Officer Luke Wilson performed the arrest. Unfortunately, it took place out of view of nearby CCTV cameras. That shouldn't have been a problem since Officer Wilson was wearing a body camera. But he "forgot" to ensure it was recording before he began arresting people.

The prosecution of Sahouri was handled in bad faith. Prosecutors sought to bar any mention of her employment as a Des Moines Register journalist during the court case. They claimed this case had nothing to do with press freedom -- that it only involved someone disobeying a lawful order to disperse. They claimed this despite recordings of the PD's arrival on scene showing officers issuing conflicting orders to protesters.

Police body-camera video played at the trial showed protesters blocking Merle Hay Road near the Wingstop restaurant at about 6:30 p.m. The word “disperse” from police car loudspeakers is barely audible amid the crowd noise, and the crowd is also asked to protest peacefully. Officers on the street are heard saying “get back, get back,” and many people in the crowd are shown doing just that, backing away from the street.

But the judge was having none of this bullshit, even as the prosecution donned its gaiters and waded into it. Officer Luke Wilson may have failed to activate his camera but the footage still could have been salvageable. Instead, Wilson took affirmative steps to make sure it wasn't. That ended up hurting the prosecution's case.

It was disclosed at trial that the body cameras used by Des Moines police have a background recording function. Had Wilson notified his supervisor promptly of his failure to turn on the camera, video still could have been captured. In a rare move, the judge instructed jurors that they could consider whether Wilson intentionally destroyed evidence favorable to Sahouri.

The prosecution also tried to use Sahouri's own journalism against her. They claimed the photos she took of property damage to a nearby mall was evidence she had "failed to disperse." But journalists aren't necessarily subject to orders to disperse. And documenting newsworthy events is not the same thing as participating in them.

But the arrest did serve a limited purpose for the Des Moines PD: it deprived the public of documentation of their actions during their dispersal effort. Instead of having a neutral third party relaying info, the public was left with what police officers recorded on their cameras. And it's safe to say Officer Wilson wasn't the only officer who "failed" to record arrests and uses of force.

Fortunately, Sahouri has been cleared. But she should never have been charged in the first place. This may be a loss for prosecutors but it won't deter officers from acting in bad faith again when they're confronted with third parties recording their actions.

Filed Under: 1st amendment, andrea sahouri, des moines, failure to disperse, iowa, journalism

Court Says '5 Second Rule' Used By Police In Ferguson To Arrest Protestors Is Unconstitutional

from the good-news dept

A district court in Missouri has granted an injunction filed against the police in Ferguson for their ridiculous "5 second rule" that was used to arrest numerous protestors. The rule was that if you stood in place for more than 5 seconds, you could be arrested -- with the goal of (a) keeping protestors moving and (b) having an excuse to arrest a bunch of protestors. Mustafa Abdullah, with help from the ACLU, sued over this and the court has agreed that the rule is clearly unconstitutional, and thus a preliminary injunction has been granted. The court notes that standing in place for 5 seconds is not a legitimate standard to be used for Missouri's "failure to disperse law" (or any other law).

First, the court doesn't buy the police's claim that the 5 second rule matches up with the failure to disperse law:

This statute provides no defense to this suit for several reasons. First, people were not told to “disperse” – in other words, to leave the area. Instead they were told to keep moving. Second, the order was given even when there were fewer than six people gathered. The evidence included examples where the order was given to one person alone, to three people attempting to pray, to a reporter and one other person, as well as to larger groups. And the order was given to people who were doing nothing to indicate they intended to violate laws of any sort, much less to engage in violence. In fact, nearly all of plaintiff’s fact witnesses testified that despite gatherings that were peaceful and law-abiding at the time, officers told people they must keep moving or they would be arrested.

Then there's the question of due process. And, once again, the 5 second rule is problematic:

Plaintiff is likely to succeed on the merits of showing that the keep-moving policy violates due process in both ways. Of course, in this situation there is no statute or ordinance being challenged. Rather, it is an unwritten policy, given to officers at their roll calls, instructing them to order people to keep moving whenever the officers thought it was appropriate to do so. Some officers told everyone to keep moving, so if plaintiff was unlucky enough to be standing in the vicinity of those officers, he would be told to move. Some officers told people they would be arrested if they did not move, but at least one officer told people that they had to keep moving but probably would not be arrested if they failed to comply. Some officers interpreted the policy to mean that people had to walk at a certain speed, others told people that they could not walk back and forth in a certain-sized area. Some officers applied it to members of the press, while others did not. Plaintiff and his other witnesses testified that they could not tell what would or would not be allowed at any given moment.

The rule provided no notice to citizens of what conduct was unlawful, and its enforcement was entirely arbitrary and left to the unfettered discretion of the officers on the street. This policy “necessarily entrusts lawmaking to the moment-to-moment judgment of the policeman on his beat.” See Kolender, 461 U.S. at 360 (brackets and quotation marks omitted). Like the gang loitering ordinance found unconstitutional in Chicago v. Morales, 527 U.S. 41 (1999), the keep-moving policy cannot meet constitutional standards for definiteness and clarity.

And then the good old First Amendment:

I conclude that it is likely plaintiff will prevail on the merits of his First Amendment claim, and given my conclusions about the Due Process claim, I need not at this time discuss the First Amendment issues in detail. The keep-moving policy – as it was applied to plaintiff and others – prohibited citizens from peacefully assembling on the public sidewalks. Although the state has a valid interest in maintaining order on its streets and sidewalks and in preventing violence by crowds, this interest is not sufficient to apply such a blanket rule to people assembling peacefully.... The evidence showed that the strategy burdened substantially more speech than was necessary to achieve its legitimate goals. In fact, one of the police witnesses testified that it only worked well during the daytime when there were no large crowds and no threats of violence – when the crowds grew unruly, telling them to keep moving was not an effective strategy. Thus, defendants’ own evidence shows that this strategy fails the requirement that “the means chosen are not substantially broader than necessary to achieve the government’s interest,”

Nice to see this ruling, though it would have been nicer to have this earlier -- but hopefully it will at least prevent future such actions.

Filed Under: 5 second law, due process, failure to disperse, ferguson, first amendment, free speech, missouri, mustafa abdullah, right to assembly