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.