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

Philly Transit Police Chief Shocked That No One Came To The Assistance Of A Cop Being Assaulted By A Suspect

from the to-those-insulated-from-their-own-actions,-this-can-be-considered-'shocking& dept

If you're looking for evidence of the disconnect between law enforcement's mentality and the public's, you need look no further than the comments made by Philly Transit Authority police chief in response to the fact that no one jumped in or called 911 as one of his officers was being assaulted by the person he was trying to arrest. (Video of both incidents at linked site, but not embeddable.)

"I was horrified. I'm frightened for my cops," Chief Thomas Nestel said reacts [sic] to surveillance video.

Police said the suspect, Ernest Hays, was avoiding arrest and threw SEPTA police officer Samuel Washington on the ground and then pinned him under a bench.

Officials said he was wanted in connection with a SEPTA ticket scam when Officer Washington stopped him. The chief said not a single SEPTA passenger called for help but this lady did take out her phone to record the fight.

Eventually, a cashier at the station did call 911, once she was "apprised" of the situation by the officer kicking the glass while underneath the bench.

"To go out every day they work really hard and try to make it easy for people and make people feel safe but they rely on people to help. It's starting to take its toll and it's really concerning me," Chief Nestle said.

To experience the disconnect in full, all one needs to do is read the comments accompanying the article.

Yeah, I wouldn't have called either. These cops are thugs and they shouldn't be surprised when the people aren't on their side.

All I see in that video is gang on gang violence. Cops don't make people feel safer, neither is that their job by dictate of the supreme court. There is a new video every week, almost every day, of cops forcing people to stop filming (and in some cases calling 911) when cops are abusing citizens. I can totally understand citizens saying they'd help- to a camera and after the fact... but in the moment, thinking, "meh... its a cop. Cops arrested my family member. Cops stole my property. Cops scared my family last week. Cops were rude to me yesterday. That's probably a corrupt cop anyway. Someone else can help him."

If the below comments suggest anything, it's that the Philadelphia police department has a bigger problem than folks not calling the police when they'er out manned. They appear to have lost the respect and trust of the citizenry.

The fact is that a certain number of citizens aren't going to come to a cop's defense simply because they've seen too much abuse occur at the hands of cops. When law enforcement struggles with an arrestee, they're not too shy about bringing in several more officers to help out, or just sending an attack dog after them. They're also in possession of several more weapons than most citizens carry -- including pepper spray, batons, tasers and guns.

The odds are stacked in favor of police officers. When one is suddenly unable to avail himself of all the weapons at his disposal, police leadership seems to think the public should jump in and save their "heroes," or at least call 911.

Over at PINAC's writeup of the event, the oft-arrested/hassled photographer Carlos Miller points out why that's a bad idea.

I admit I would be the one video recording, not necessarily because I wouldn’t want to help the cop, but because pulling out my camera and recording is very instinctive for me, while dialing 911 is anything but.

In fact, my instinct is to avoid calling 911 at all costs because I don’t trust police enough not to turn me into a suspect when they arrive, which we have seen happen numerous times in the past.

Beyond the chilly relationship between citizens and cops are further factors, legal and otherwise, that Chief Nestle isn't considering when he expresses his shock at the public's inaction.

First, there's the Bystander Effect. Very basically, the more people present in a situation, the less likely that someone will offer aid. Two factors that came into play during this beatdown are empathy and the "diffusion of responsibility." Many people simply don't empathize with cops, even when a citizen has gained the upper hand. This disconnect leads directly to less altruistic behavior. The more someone empathizes with the victim, the more likely they are to respond. Judging from the majority of the comments under the news report, it's very unlikely that any crowd would be filled with empathetic individuals.

The diffusion of responsibility makes this lack of empathy even worse. While no one would be willing to risk injury and help the cop out, one would think it would be simple enough to call 911 and report the fight. The problem is that it's too easy. The overriding assumption by many in the crowd would be that, with so many people around, surely one of them had called 911 already. Why tie up the line by calling it in again? Not only that, but the public is well aware that there are numerous CCTV cameras in use at the station. If nothing else, they would likely assume that whoever's monitoring those has already called for backup. Why be redundant?

A third factor is liability. Deciding to help the officer out by attempting to subdue the aggressor opens that person up the all sorts of problems. In addition to the chance that said "hero" could be seriously injured or killed, that person could also find themselves facing a personal injury lawsuit in the future if the subdued person sustains any sort of debilitating injury (or can find a doctor willing to sign off on something debilitating but objectively unverifiable). Does anyone honestly believe the city would jump into that lawsuit and pay for the legal defense/settlement in return for the person's assistance? Highly doubtful. Most cities work as hard as they can to minimize liability exposure. Inserting itself into a personal injury lawsuit doesn't minimize exposure. Encouraging people to come to the aid of distressed officers, as Nestle seems to be doing, certainly doesn't do that either.

So, while Nestle expresses shock and distress over the fact that a cop was beaten up while others went on with their lives, he fails to consider there's more to it than simply, "People don't care about cops." That's an undeniable factor but it's hardly the only one.

Nestle also points to another situation earlier that week when two plainclothes officers were less than successful in subduing a single perp. Again, no one jumped in and no one called 911. I'm not sure what sort of sympathy he's trying to elicit here, but why should anyone be tempted to come to the assistance of three people fighting? If these cops were any good at disguising themselves, no one would know they were cops. How many people would call 911 to report a fight in the subway, much less jump into the fray, even without all of these other factors considered?

There's that disconnect again. Somehow the chief feels the public isn't doing enough police work. They should be willing to call 911 and break up random fights just in case some plainclothes officers are involved. It's so far past reality, it's almost delusional. But most troubling is the fact that Chief Nestle simply doesn't realize how damaged the relationship between cops and citizens really is. And if he doesn't see that, then it's impossible to fix.

Filed Under: bystanders, police, transit police