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.

Filed Under: avi adelman, civil liberties, dart, ems, free speech, photographing police, qualified immunity, stephanie branch, transit police

You Caught A Bullshit 'Photographing The Police' Arrest Too Soon, Federal Judge Tells Plaintiff

from the should-have-held-off-for-a-year,-I-guess dept

A federal judge in Texas has ruled the right to photograph public officials in public is indeed protected under the First Amendment. The problem for the plaintiff in this case is that the right wasn't clearly established at the time his arrest occurred. The lawsuit survives, but just barely, and the transit cop who engaged in a pretty-much-established violation of the photographer's rights will escape being held liable for abusing their position. (h/t Eric Goldman)

Avi Adelman, a freelance journalist, was photographing EMS officers responding to the scene of an apparent overdose. DART (Dallas Area Rapid Transit) officer Stephanie Branch arrived at the scene and placed herself between Adelman's camera and the medical scene. Branch made up something about "establishing a perimeter" and "HIPAA violations" and told Adelman to stop photographing. According to the decision [PDF], Officer Branch also asked Adelman to leave the scene nine times and (for whatever reason -- most likely because Texas cops just don't seem to understand this particular law) for his ID four times. Adelman refused and was arrested, spending 20 hours in jail.

An internal investigation by DART resulted in a letter from Chief James Spiller to Adelman telling him the bogus "criminal trespass" charge against him would be dismissed. It also contained an admission of guilt: the letter stated the interaction and arrest were "not consistent with DART… policies and directives." And, just to prove the old adage holds true, DART discovered Officer Branch made twenty-three false or inaccurate statements in her report, including falsely claiming Adelman was only a "few feet" from responding paramedics.

So, you'd think an admission of wrongdoing would pave the way towards a successful civil rights lawsuit. Unfortunately, that's not the case. The admission the arrest was not consistent with DART policies pretty much defused any "policy and practice" or "failure to train" claims Adelman might have brought against DART. And circuit precedent shuts down Adelman's attempt to hold Officer Branch directly responsible for violating his rights.

In her motion for summary judgment, Branch argues that the First Amendment right to film the police or by reasonable extension to photograph emergency medical activity, as Adelman was doing, was not clearly established at the time of Adelman's arrest in 2016. [...] In support of her argument, Branch relies on the Fifth Circuit's holding in Turner v. Lt. Drive...

The Turner decision was handed down in 2017. In that case, the Appeals Court went the distance, clearly establishing a First Amendment right to record police activity. But that doesn't help Adelman at all and allows the cop who lied 23 times on her report to duck out this lawsuit.

The Court finds that the holding in Turner applies to the case at hand. At the time that Adelman was arrested for photographing a medical scene attended to by DFR paramedics and DART police, the right to photograph police was not clearly established. Therefore, Branch may assert a defense of qualified immunity.

And, despite DART's admission the arrest was not according to its own policies, Adelman is unable to move forward with his Fourth Amendment claims against Branch. Adelman's claims against DART, however, will move forward. Since a municipal entity is unable to assert a qualified immunity defense against claims like Adelman's, it will have to continue to defend itself against Adelman's First and Fourth Amendment claims. Unfortunately, DART's letter to Adelman seems to indicate his arrest was the work of a rogue transit cop who violated DART policy and lied about it. Ultimately, it may be found DART is not liable for arrests that violate policy, leaving Adelman with nothing but a legal bill for his troubles.

Filed Under: arrests, avi adelman, dallas, dart, photographing police, photojournalism, police, police intimidation, stephanie branch

Woman Catches Cop Beating Handcuffed Suspect; Police Union First In Line To Shoot The Messenger

from the no-one-to-blame-but-everyone-else dept

The presumed illegality of filming police is a law enforcement mental disorder. Far too many officers believe they have the right to perform their public service unobserved. Officers continue to take cameras from bystanders who happen to catch them behaving badly. Abby Phillip at the Washington Post details another apparent act of police misconduct that resulted in more misconduct as officers attempted to shut the recording down.

Just after 4 p.m. Thursday, a woman stood a few feet away from several Miami Police Department patrol cars with her cellphone camera recording. After a few seconds, an officer entered the frame, escorting a handcuffed young black man to the back of a police car.

Suddenly, the officer put his head inside the car door and appeared to punch the suspect.

“Oh!” a woman exclaimed on the recording, reacting to what was unfolding before her. The woman, who the Associated Press identified as Shenitria Blocker, moved closer, and the officer climbed into the back seat of the car. Moments later, the camera shook and the video ended.

Here's the video:


The camera shake was due to an officer's attempt to take Blocker's phone away from her. Blocker says they then ordered her to delete the footage or face being arrested. While the video does show Blocker moving in very close to the police car to get a better view of the action, any arrestable offense would have been limited to "interference," and that would only be legit if she refused to move away from the vehicle when ordered to. No such order was given. Instead, the cop went for the camera and threatened her with arrest.

Even if the cops can't find a sufficiently malleable "violation" to charge photographers with, the law enforcement community (including police departments and, especially, their unions) finds ways to ensure no damning recording goes unpunished.

To its credit, the Miami Police Department has suspended the officer caught punching the handcuffed arrestee and is investigating the incident. On the other hand, it hasn't said anything about the unidentified officer who attempted to take Blocker's phone, nor has it issued a statement affirming the public's right to film police officers.

The Miami Fraternal Order of Police, on the other hand, is going out of its way to deliver its own brand of "justice" for Blocker having the temerity to catch one of its officers behaving badly.

In a statement, the police union said “social media has placed a very negative tone on law enforcement nationwide” and that the officer in question was “protecting our community.”

Ah. So that's what happened. A now-suspended officer didn't punch an arrested man who was already in the back of a patrol car. Social media did. In fact, social media should be made to answer for the hundreds of incidents of police misconduct every year. At the very least, people should stop running to social media with their clips of police abuse because being a cop is hard work.

But the union has gone farther than simply making the ridiculous assertion that all of these police officers captured on film doing the things they were actually doing is nothing more than negative spin by Social Media Co. LLC. It's also attempting to disparage Blocker herself -- ironically, by using the same social media that's apparently destroying the reputation of its suspect-punching police officer.

The union has delivered screenshots of Blocker's since-removed Facebook page, claiming these show Blocker is a bad person and therefore, all video captured by her phone should be disregarded… or something.

The remainder of the union’s statement focused on criticizing Smith, the woman who at the time they believed recorded the video. It highlighted screenshots of Smith’s Facebook page and accused her of posting photos of herself with men who have handguns.

According to the farcical police officers' group, the real problem is men with guns on Facebook pages, not an officer punching a handcuffed suspect. If only the "community" had done more to raise Ms. Blocker right, Unidentified-and-Suspended Officer X wouldn't have had to punch a handcuffed man in the back of his patrol car.

“Our community has accepted behavior that motivates violence in our younger generation. It’s time for the community to take a stand against this reckless behavior and stop the violence,” he continued. “As the saying goes: It takes a village to raise a child. Guns don’t belong in the hands of children.”

So, remember: the next time you see a police officer beating a handcuffed person, remember that somewhere out there, there's a male with a gun and someone's daughter might be friends with him. Ask yourself: what's more important here? The reputation of the misbehaving officer? Or the reputation of the misbehaving officer? And then put the camera away. Because as the union sees it, the only people above reproach are the officers whose abusive actions prompt poorly-thought out and thoroughly ridiculous statements from their unions.

Filed Under: filming, miami, miami police department, photographing police, photography is not a crime, police, shenitria blocker

New York District Court Denies Immunity To NYPD Officers Who Arrested A Citizen For Filming Them

from the no-immunity-for-deliberate-obtuseness dept

Some NYPD officers have continued to cling to the belief that citizens aren't allowed to film them, despite plenty of documentation otherwise. A letter issued to the Baltimore PD, but that CC'd law enforcement in general noted that "the justification for [filming police] is firmly rooted in longstanding First Amendment principles." (The footnote appended to this added: "There is no binding precedence to the contrary.") The NYPD's own Patrol Guide states this:

“[T]aking photographs, videotapes or tape recordings” do not constitute probable cause for arrest or detention so long as the activity does not jeopardize the safety of officers or others.

The NYPD's chief of federal litigation likewise reminded officers that bystanders could film police officers provided they didn't interfere with duties or operations.

It would seem to be clearly established (including decisions to this effect from all but one circuit court in the US) and yet certain officers are still shutting down citizens with cameras and arresting them on clearly bogus charges. The NYPD is currently facing a lawsuit from the ACLU that hopes to obtain a ruling declaring this activity to be covered by the First Amendment. That lawsuit may ultimately prove to be extraneous as the Southern District of New York (which oversees New York City) has now confirmed that citizen recordings are protected First Amendment activity.

The facts behind the suit are this:

Douglas Higginbotham was covering the Occupy Wall Street protests for a New Zealand TV station. While shooting footage from atop a phone booth, he was ordered to get down by NYPD officers. He attempted to climb down but there were too many people crowded around the booth. So, the cops dragged him down by his feet, damaging his camera in the process. He was then cuffed with zip ties for three hours (and sprung from them with a butter knife because the NYPD is apparently more interested in the cuffing process than the releasing process) and charged with disorderly conduct.

Higginbotham claimed the arrest was performed in retaliation for his filming police officers, and as such, was a false arrest. The NYPD countered by claiming Higginbotham's supposed "failure to disperse" justified the charge. The court found otherwise:

The parties dispute whether, as a journalist covering the protest, Higginbotham can properly be said to have been “congregating” with the protesters within the meaning of the statute. The Court need not resolve this question, however, because there is a different reason why the statute does not cover Higginbotham’s conduct: the defendants’ order for Higginbotham to climb down from the telephone booth was not an order to “disperse.” That word, as used in the statute, means “[t]o separate, go different ways.” Oxford English Dictionary (2d ed. online version Mar. 2015). There is no allegation that Higginbotham was ordered to “separate” himself from the rest of the crowd, by leaving the scene of the protest. On the contrary, as alleged, the defendants instructed that he climb down from the phone booth into the crowd. Further, “[a] group can disperse; an individual cannot.” Because the defendants’ order was directed at Higginbotham alone, it could not be an order to disperse.

The NYPD also raised a variety of other justifications for this arrest (including potential damage to the phone booth and creating a "hazard" by his being on top of the phone booth) but these were also dismissed as inapplicable by the judge. The department also claimed that, even if there were no legitimate reason to arrest Higginbotham, the officers were entitled to qualified immunity.

In support of qualified immunity, the defendants merely summarize their version of the facts and assert that “the officers were objectively reasonable and patently not incompetent.” (Defs.’ Br. 12.) At the summary judgment stage, they will have the opportunity to try to demonstrate this by submitting evidence showing that reasonably competent officers in their situation could have at least disagreed on whether probable cause existed. Based solely on the complaint, however, the Court cannot conclude that this must have been the case.

Finally, the court addresses the First Amendment issue, and here the NYPD officers again attempt to claim immunity.

The defendants further assert that they are entitled to qualified immunity because the right to record the police is “insufficiently defined.”

The "no one directly -- at that moment -- told us not to" defense is one that should be undermined considerably by statements and policies issued by the NYPD itself. The court doesn't need a copy of the Patrol Guide to arrive at the same endpoint.

The Court concludes, however, that the right to record police activity in public, at least in the case of a journalist who is otherwise unconnected to the events recorded, was in fact “clearly established” at the time of the events alleged in the complaint. When neither the Supreme Court nor the Second Circuit has decided an issue, a court “may nonetheless treat the law as clearly established if decisions from . . . other circuits ‘clearly foreshadow a particular ruling on the issue.’”

The court then goes on to point out that the First Amendment rights the officers claimed were "insufficiently defined" had been clearly established by years of precedent rulings.

Certainly, the right to record police activity in a public space is not without limits, and some uncertainty may exist on its outer bounds. For instance, it may not apply in particularly dangerous situations, if the recording interferes with the police activity, if it is surreptitious, if it is done by the subject of the police activity, or if the police activity is part of an undercover investigation. As alleged, however, Higginbotham’s conduct falls comfortably within the zone protected by the First Amendment. The complaint alleges that he was a professional journalist present to record a public demonstration for broadcast and not a participant in the events leading up to the arrest he was filming. There is nothing in the complaint suggesting that his filming interfered with the arrest. Accordingly, and in light of the case law consensus described above, a reasonable police officer would have been on notice that retaliating against a non-participant, professional journalist for filming an arrest under the circumstances alleged would violate the First Amendment.

Now, this is still far from the final ruling, so there's no precedent specific to the NYPD's territory set at this point. But the court's denial of qualified immunity in respect to Higginbotham's First Amendment claims serves notice that future assertions of well-meaning, not-patently-incompetent ignorance won't be entertained by this court. The plaintiff's suit will move forward and the officers accused of taking retaliatory action against a photographer will have to move right along with it. I would expect a settlement in the near future if the NYPD wishes to prevent the Second Circuit from joining the rest of the circuit courts in establishing a First Amendment right to record.

Filed Under: arresting citizens, filming police, first amendment, immunity, journalism, nypd, photographing police, police, reporting