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.

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

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Thad (user link) says:

Re: Re: Re:2 Out_Of_The_Spam

Again — I’m not the guy who’s doing it. Somebody appears to have developed a man-crush on me and has been repeating that one-liner under my name all day (a one-liner that has been frequently posted in the past anonymously).

If you check that first post, you’ll see that this time he even fucked up and linked to the wrong post on my blog. (I always link to the "Hide Techdirt Comments" post. He must have fat-fingered and clicked the wrong link, because he linked to the post before that one.)

Best guess is it is Blue, but it doesn’t really matter. A troll’s a troll. Flag the imposter and move on.

That Anonymous Coward (profile) says:

Spokescops – people hate us and we don’t know why!!!!!!

Reality – Our rights have to be proven in a court of law before you are expected to respect the most basic common sense ones & are allowed a pass after violating the fabric of the country…

Spokescops – We’re to dumb to know ALL the laws!!!!

Reality – And yet we keep being told ignorance of the law is no excuse… something something double standard.

Anonymous Anonymous Coward (profile) says:

Re: Re:

"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, Turner’s reliance on decisions that “clarified that [First Amendment] protections . . . extend[] to gathering information” does not demonstrate whether the specific act at issue here—video recording the police or a police station—was clearly established."

It is incredible that what you say is true. From one of the linked articles, The Fifth Circuit claims the Supreme Court instructs courts to nitpick and test every unique instance in order to determine if that particular instance violates the plain language of the Constitution, thereby ‘clearly establishing’ the law.

There are legitimate reasons to have some exceptions to the plain language of the Constitution, and in order to get there particular instances must be tested. However, those instances should be selected because some unique part of the behavior is so out of the ordinary that there might be some cause for the exception. Otherwise, there should be a presumption of clear establishment.

David says:

Re: Re: Re:

The reliance on specific detailed legal precedence rather than the plain language of the Constitution is also bullshit because “qualified immunity” is exactly premised on not expecting police officers in the field to be legal scholars. So you cannot nullify “qualified immunity” dependent on specific case law: that would be against its premise.

Unless, of course, the case law in question was in a verdict against the officer, and the officer has been ruled to be in contempt of the verdict and been sentenced for it. In that case the protection of qualified immunity indeed looks a bit stable and needs to get replaced with a readily available presidential pardon.

Anonymous Coward says:

the right to photograph police was not clearly established

If it’s a right, it always existed even if it wasn’t clearly established. The government can’t say "You didn’t have a right to free speech until we said so." If that’s the case, it isn’t a right, it’s a privilege, and something the government can take away.

The Constitution prevents ex post facto law, so that if you do something that isn’t illegal, you can’t be held liable if that act is later declared illegal. This decision seems to indicate that the Court thinks that you can’t have ex post facto rights either. So… I guess that according to this Court, slavery wasn’t actually bad until after the 13th and 14th Amendments? After all, slaves didn’t have rights yet. (Which of course is utter nonsense – slaves absolutely had rights, they were just being routinely and constantly violated)

The Wanderer (profile) says:

Re: Re:

As I understand matters, the idea of the "not clearly established" principle is that "you can’t punish someone for doing something if the rule prohibiting it wasn’t clear enough that they should have known it would be prohibited".

So this isn’t "ex post facto rights" – it’s ex-post-facto liability again, on the officer‘s side.

The manifestation of that in the slavery analogy would be saying that you can’t punish former slaveowners for having owned slaves when slavery hadn’t been declared illegal yet.

Yes, the right always existed – but just because it existed doesn’t mean that the fact that it existed was clear enough that the person should have known it existed.

Bamboo Harvester (profile) says:

The ruling was good.

Look at it this way; The Plaintiff provided 24 Exhibits as Evidence, the Court excluded a single one of them. The 23 lies by the officer should be enough to prosecute the Civil suit.

EVERY TIME the Supreme Court makes a Ruling, should everyone who did what they ruled against BEFORE they made the Ruling be arrested and prosecuted?

Of course not.

That it works in both directions gets the goat of whichever side is having it’s ox gored, but that’s the LAW. Not wishful thinking, nor unicorns farting rainbows.

Cdaragorn (profile) says:

Re: Re:

The problem with following this line of thinking where you’re trying to take it is that it makes it impossible for anyone to obey the law because the law becomes impossibly complex.
You cannot ever define every possible thing that can ever be done or not done. If you honestly had to do that in order for it to be enforceable the entire legal system would fail.
The problem with this ruling is that it expects exactly that kind of detail. The fact that should have been important to the judge is that it was NOT ILLEGAL to film. Whether or not it was protected by the first amendment never even should have needed to be brought up unless there was some state or federal law in place trying to make it illegal. The officer should have been charged for arresting someone who had not broken any law.

Personanongrata says:

Kanagroo Court in Texas

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.

Those are called weasel words – where a federal court jester (ie judge) allows a costumed government lackey (ie DART (Dallas Area Rapid Transit) officer Stephanie Branch) to hide their unpalatable/unprofessional actions behind the law.

Nice check on tyranny judge.

That One Guy (profile) says:

Re: Because expecting critical thinking of police is to high a bar

Why would a court think first amendment rights do not apply unless a higher court has established they do?

Because the legal system gives law enforcement and/or other groups with badges enormous wiggle-room, such that unless something has been explicitly ruled on before when it comes to police doing it you’ll have judges willing to give it a pass, even if the public would face a far stricter standard where generalities were enough.

And why would it matter why the police broke the law? Rogue cops, wrong policies – the authorities are responsible for the actions of the officers working for them.

Following from the above, because unless a specific ruling has previously been handed out courts will give a pass on actions because obviously the police had no way to know they were doing something wrong(even if, for example, they lied almost two dozen times in their report, such that it’s blatantly obvious that they knew they’d done something wrong).

Or in tl;dr format: ‘Because all animals are equal, but some animals are more equal than others.’

David says:

Not clearly established?

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.

The First Amendment was passed in 1791. It’s probably hard to find precedent where a court has established that officers can’t break the right pinky after the third left rib when annoyed but that doesn’t mean that they get a free pass to do so.

"Qualified immunity" applies at best when the officer has been wrongly persuaded of the legality of his choice of proceeding, and if the stated officer were so convinced, she would not have needed to lie 23 times in the report.

Any lie should automatically cancel any invocation of qualified immunity.

Anonymous Coward says:

If I read correctly the whole premise is that somehow the arrest wasn’t unlawful because no precedent had been set prior to the arrest? So then any detention would be lawful?

If no precedent had been set then I would guess that it means neither for nor against the filming of EMS in public.

So what we have is an arrest in 2016 that according to the court could have been unlawful re: 1st and 4th amendments but was never ruled on because the Dept decided to bail on the charges.

Sounds like they just wanted to throw the arresting officer under the bus to try and make it all disappear. The court evidently gave the officer a pass.

I’m guessing that somewhere along the line, in booking and detaining the reporter, a lower level supervisor thought “oh shiat” and bucked it up the chain to cover their own arse.

Avi S. Adelman (user link) says:

DART Police Officers Loses Qualified Immunity Appeal

Fifth Circuit ruling – Not only No, but Are you kidding me, Hell No!
In an opinion issued by the US Fifth Circuit Court of Appeals in New Orleans on September 20, 2019, the panel ruled DART Police Officer Stephanie Branch is not entitled to Qualified Immunity for arresting freelance photographer Avi S. Adelman while he was taking photographs of DFR paramedics treating a K2 overdose victim at the DART West End Transit Center on February 9, 2016. (Document link)

The appeal hearing was called by the attorney for the DART officer after the local trial judge set an October 2018 trial date. The hearing was held on August 6th at the Fifth Circuit Court of Appeals in New Orleans.

The panel affirmed the (Northern District of Texas) trial judge’s ruling (August 2018) and remanded the case back for action (trial). They also denied the officer’s request for prohibiting punitive damages ahead of the trial for want of jurisdiction.

DART Officer Stephanie Branch was on medical leave when DART released its Photography in Public policy in 2014 (not to be confused with a Public Recording of Police policy implemented after Adelman’s arrest), allowing photography in all public areas of the DART system.

Branch claimed she had a reasonable cause to arrest Adelman (criminal trespass), but in fact the mistake (per the court) was not reasonable. She did not misinterpret an unclear policy or law; she simply failed to learn about DART’s updated policy [when she returned to duty]. “An officer can gain no Fourth Amendment advantage [to make an arrest] through a sloppy study of the laws (s)he is duty-bound to enforce.” (Heien v North Carolina, 135 SCOTUS at 539-40)

From the decision –

Branch did not have authority to order Adelman to depart. Adelman was taking photos in accordance with DART’s Photography Policy, which permits people to take photographs on DART property as long as they do not interfere with transportation or public safety activity in doing so. The DART investigation determined that Branch’s claims that Adelman was within a few feet of DFR paramedics and that DFR instructed her to keep Adelman back were false. Indeed, the exchange between Cannon and two DFR paramedics during the confrontation shows that even Branch’s colleagues knew Branch was acting outside of her authority when she told Adelman to leave. Thus, at a minimum, fact issues exist as to whether Adelman complied with the Photography Policy.


The [DART Internal Affairs investigation] report also indicated that Branch made numerous false statements in her incident report, including a statement that Adelman was within a few feet of DFR paramedics and that DFR instructed her to keep Adelman back. The report specified that Branch’s incident report contained twenty-three false or inaccurate statements. Branch was suspended for three days as a result of the investigation.

[brackets by editor, not in court documents]

Following the release of the decision, the federal (Northern District of Texas) trial judge will set a date for trial (originally scheduled for October 2018). The attorney for DART Officer Stephanie Branch can also ask for a review by the entire Fifth Circuit panel of judges.

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