Monthly Archives: February 2017

In news that will surprise no one, police officers decided they must do something about someone filming the police department building from across the street. That's where this Fifth Circuit Court of Appeals decision begins: with a completely avoidable and completely unnecessary assertion of government power.

Phillip Turner was filming the police department. He was accosted by two officers (Grinalds and Dyess). Both demanded he provide them with identification. He refused to do so. The officers arrested him for "failure to identify," took his camera, and tossed him in the back of a squad car. Given the circumstances of the initial interaction, it's surprising the words "contempt of cop" weren't used on the official police report. From the opinion [PDF]:

Grinalds asked Turner, Hows it going, man? Got your ID with you? Turner continued videotaping, and Grinalds repeatedly asked Turner if he had any identification. Turner asked the officers whether he was being detained, and Grinalds responded that Turner was being detained for investigation and that the officers were concerned about who was walking around with a video camera. Turner asked for which crime he was being detained, and Grinalds replied, I didnt say you committed a crime. Grinalds elaborated, We have the right and authority to know whos walking around our facilities.

Grinalds again asked for Turners identification, and Turner asked Grinalds, What happens if I dont ID myself? Grinalds replied, Well cross that bridge when we come to it. Grinalds continued to request Turners identification, which Turner refused to provide. Grinalds and Dyess then suddenly and without warning handcuffed Turner and took his video camera from him, and Grinalds said, This is what happens when you dont ID yourself.

Turner asked to speak to their supervisor. Given that this happened right across the street from the department, Turner didn't have to wait very long. A supervisor arrived and came to at least one correct conclusion:

Lieutenant Driver identified himself as the commander. Driver asked Turner what he was doing, and Turner explained that he was taking pictures from the sidewalk across the street. Driver asked Turner for his ID, and Turner told the lieutenant that he did not have to identify himself because he had not been lawfully arrested and that he chose not to provide his identification. Driver responded, Youre right.

Texas police officers love to misread the state's "failure to identify" statute. It doesn't say what they think it does or what they want to believe it does. A former cop-turned-law student has a full explanation here, but suffice to say, cops cannot arrest someone for refusing to ID themselves -- at least not in Texas. The charge can be added after an arrest (if the refusal continues), but it can't be the impetus for an arrest.

After some discussion between the officers, Turner was released and his camera was given back. Turner filed a civil rights lawsuit. The lower court granted immunity to the officers on all allegations. The Fifth Circuit, however, refuses to go as far. And in doing so, it actually takes it upon itself to address an issue it easily could have avoided: whether the First Amendment covers the filming of public servants, specifically law enforcement officers.

First, the court asks whether the right to film police was "clearly established" at the time the incident took place (September 2015). It can't find anything that says it is.

At the time in question, neither the Supreme Court nor this court had determined whether First Amendment protection extends to the recording or filming of police. Although Turner insists, as some district courts in this circuit have concluded, that First Amendment protection extends to the video recording of police activity in light of general First Amendment principles, the Supreme Court has repeatedly instructed courts not to define clearly established law at a high level of generality: The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established. Thus, Turners reliance on decisions that clarified that [First Amendment] protections . . . extend[] to gathering information does not demonstrate whether the specific act at issue herevideo recording the police or a police stationwas clearly established.

The court doesn't leave it there, although it could have. The court notes that there's a circuit split on the issue, but just because the issue's far from decided doesn't mean courts have not recognized the right exists. It points to conclusions reached by the First and Eleventh Circuit Appeals Courts as evidence the right to film police has been acknowledged. Even so, there's not enough clarity on the issue to remove the officers' immunity.

We cannot say, however, that existing precedent . . . placed the . . .constitutional question beyond debate when Turner recorded the police station. Neither does it seem that the law so clearly and unambiguously prohibited [the officers] conduct that every reasonable official would understand that what he is doing violates [the law]. In light of the absence of controlling authority and the dearth of even persuasive authority, there was no clearly established First Amendment right to record the police at the time of Turners activities.

This is where the opinion gets interesting. While many judges would leave a trickier, somewhat tangential issue open and unanswered, the Fifth Circuit Appeals Court decides it's time for it to set some precedent.

We conclude that First Amendment principles, controlling authority, and persuasive precedent demonstrate that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.

[...]

To be sure, [s]peech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. Filming the police contributes to the publics ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy. Filming the police also frequently helps officers; for example, a citizens recording might corroborate a probable cause finding or might even exonerate an officer charged with wrongdoing.

In the Fifth Circuit -- joining the First and Eleventh Circuits -- the First Amendment right to film police has been asserted. Unfortunately, the issue still remains mostly unsettled, and there's currently nothing in front of the Supreme Court that would set national precedent. Unfortunately, the decision doesn't help Turner with his First Amendment claim, but it will help others going forward.

The court also reverses immunity on one of Turner's Fourth Amendment claims. While it finds the officers were justified in questioning him, they went too far when they arrested him. First, as pointed out above, the "failure to identify" law can't be used to predicate an arrest. And, after questioning him, the officers still had nothing approaching the probable cause they needed to make a warrantless arrest. Even though Turner was detained in the back of the squad car for only a short period of time, the fact that he was obviously not free to go makes it an arrest under the Fourth Amendment.

Strangely, the dissent, written by Judge Edith Brown, claims the Appeals Court has no business setting precedent. In her opinion, the nation's second-highest courts should stand idly by and wait for the Supreme Court to do the work.

The majority asserts, unconnected to the particular facts and unnecessary to the disposition of this case, that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions. The majority derives this general right to film the police from First Amendment principles, controlling authority, and persuasive precedent. But the Supreme Court has repeatedly reversed attempts to define clearly established law at such a high level of generality. White, 137 S. Ct. at 552.

The judge narrowly defines Turner's filming to ensure it would never fall under this supposedly "broad" definition of the right. She says the Appeals Court defines the protection as covering "filming police." But Turner wasn't doing that.

To the extent there is any consensus of persuasive authority, those cases focus only on the narrow issue of whether there is a First Amendment right to film the police carrying out their duties in public. E.g., Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011). Turner did not allege that he filmed police officers conducting their public duties, but rather that he filmed a police station.

Somehow, filming police officers as they enter and exit a public building is not "filming police carrying out their duties in public." Remarkably, Judge Brown says there may be "reasonable" security concerns that could Constitutionally prevent Turner's actions.

The majority does not determine that the officers here violated Turners First Amendment rightsperhaps because it would be reasonable for security reasons to restrict individuals from filming police officers entering and leaving a police station.

If police officers are entering and exiting a building from doors clearly viewable by the public from a public area, the officers obviously aren't that concerned about their "security." If so, they would use an entrance/exit members of the public can't see or don't have access to. If the Fourth Amendment doesn't protect the privacy of citizens in public areas, the same public areas can't be given a heightened privacy protection that only covers public servants.

Unsurprisingly, Judge Brown thinks Turner's involuntary stay in the back of a squad car could reasonably be viewed as Turner just hanging out there waiting to speak to a supervisor:

Because Turner himself requested a supervisor, a reasonable police officer in that situation could believe that waiting for the supervisor to arrive at the scene did not transform Turners detention into a de facto arrest. At the very least, Officers Grinalds and Dyess did not act objectively unreasonably in waiting for the requested supervisorespecially because Lieutenant Driver had to come from the Fort Worth Police Station across the street.

Except that most people "waiting for a supervisor" don't do so while:

a.) handcuffed

b.) sitting in the back of a locked squad car

The length of the detention doesn't matter. And it was ultimately the supervisor's arrival that sprung Turner. If not for the arrival of the supervisor -- who immediately recognized Turner couldn't be arrested for refusing to ID himself -- Turner would undoubtedly have spent an even longer period being detained, if not taken into the PD and processed.

The good news for Turner is that his sole remaining Fourth Amendment claims -- the wrongful arrest -- lives on. But the bigger win -- the First Amendment protections confirmation -- helps everyone else but him.

Read more from the original source:
Appeals Court Says Filming The Police Is Protected By The First ... - Techdirt

Monday on his nationally syndicated radio show, conservative talker Rush Limbaugh said the reaction of the media to President Donald Trumps tweet labeling them an enemy of the American people was because some journalists believe the First Amendment gives them immunity from criticism.

I want to thank F. Chuck Todd of NBC for opening my eyes to this. For the longest time Ive been genuinely curious why it is that media people think that they cannot be criticized.

And they really do. They really think they can go out and research people and they can dig up dirt from anybody they want, their pasts, and they can broadcast it all over. And if somebodys life, somebodys marriage, somebodys relationship, somebodys kid gets destroyed or ruined, fine and dandy.

They can do all of that they want, but you turn it around and you start investigating your favorite journalist to find out how many illegitimate kids he or she might have had in college or how many DUIs they had, you know, or how many communist sympathizer meetings they went to, then all hell breaks loose and they start squealing like stuck pigs, You cant do that! Were journalists!

I said, Where does this come from? Its more than just hubris. I finally found out. You know what it is, Mr. Snerdley? These clowns actually believe that since they are recognized in the First Amendment that they have constitutional immunity.

Criticizing them is attacking the First Amendment. They really believe this. Criticizing them is akin to attacking the Constitution, and thats un-American, and thats why you hear these journalists say. Its un-American to criticize. Its un-American for Trump to be destabilizing. Its un-American for Trump to be going out there and trying to do damage to the media. Weve got First Amendment protection.

Well, so does the president, and the president happens to be mentioned in the Constitution before the media. The presidents mentioned in Article 2. The media doesnt make it til the First Amendment. But yet the media thinks theres nothing bad about running around and trying to attack political figures and destroying them.

This is what it is, folks. They are so far gone, they really think that they are the last line of defense between freedom and democracy and tyranny. And attacking them and challenging their reputation is no more and no less than attacking the Constitution and trying to destroy America and democracy. Thats what they think. That explains why you cant go after them.

Anyhow, lets take another brief break here.

BREAK TRANSCRIPT

Look, the only thing the First Amendment does for the press is the same thing it gives everybody else. They can say what they want to say. Thats essentially what the First Amendment says for the press like it says it for you and me. It singles them out and references them in terms of their importance, a free and unintimidated, whatever, unattached media. And nobody objects to that, but it does not grant them immunity from criticism. It does not grant them freedom to be disagreed with. It does not grant them freedom from opposition.

They seem to think that it does. And I think it all falls under the notion of how really poorly constitutional education, American history educations been for decades in this country. Not to mention the kind of poison thats injected into the young skulls full of mush populating journalism schools all over the United States. But really, folks, its the one thing that, as far as the medias concerned, justifies what theyre doing.

Now, as I say, you wont even get them to admit what theyre doing. You wont even get them to admit theyre trying to destroy Trump. They come up with some, No, no, no, no. It is the job of the media to hold powerful people accountable. Yeah. Right. Why doesnt that apply to powerful Democrats? And dont tell me that it does, because everybody knows you give em a pass. Each and every time something comes up with em, you cover for em. Its a joke.

(h/t Mediaite)

Follow Pam Key on Twitter @pamkeyNEN

See the rest here:
Limbaugh: The First Amendment Doesn't Give the Press 'Immunity ... - Breitbart News

A freedom of speech lawsuit against the city of Chiloquin has been settled out of court and a motion to dismiss the suit was approved Friday.

Plaintiff Richard Twamley confirmed Monday his lawsuit against the city was resolved through a settlement agreed upon by both parties. Twamley said he found the terms of the settlement agreeable, but said specific details were under seal and wont be made public.

Twamley said he would need to contact his attorney before offering further comment.

Story continues below video

He sued Chiloquin and former Mayor Joe Hobbs Oct. 27, 2016, for an incident Dec. 15, 2015, during which Hobbs allegedly denied Twamley an opportunity to speak during public comment at a city council meeting. Twamley sought $1.7 million for the denial of his First Amendment rights as well as emotional distress.

According to the lawsuit, Twamley intended to speak to the council that night regarding a 2014 legal settlement between the city and the Chiloquin Rodeo Association, which Richard Twamley said occurred without proper authority. Twamley said his comments were ruled out of order by Hobbs and the plaintiff was not allowed to continue speaking on the topic.

At the beginning of council meetings in Chiloquin, a disclaimer is read saying officials will rule out of order comments of a discrediting nature, as well as personal attacks on officials and city personnel.

A response to Twamleys allegations was not filed in court by Chiloquin. A representative of City Hall could not be reached Monday for comment due to the federal holiday.

Twamley has been an outspoken critic of Chiloquin along with his wife, former Mayor Patricia Twamley, and Dennis Jefcoat, who acted as Patricia Twamleys adviser. In addition to letters to the editor printed in the Herald and News, the three each filed lawsuits against Chiloquin, though Patricia Twamleys suit was settled in the citys favor in 2014 and Jefcoats suit was dismissed for lack of evidence in 2016.

When asked Monday if he will continue to voice criticisms of the city, Richard Twamley said he would need to consult his attorney before responding to the question.

See the article here:
Chiloquin settles First Amendment lawsuit | News | heraldandnews ... - Herald and News