No Immunity For Cops Who Arrested Man Recording Them For Obstruction

from the words-are-like-moats-or-barricades-or-something dept

A case involving a bogus arrest stemming from a citizen's attempt to record officers has resulted in the denial of qualified immunity to the officers involved. The Eighth Circuit Appeals Court upheld the lower court's decision on both First and Fourth Amendment issues.

Plaintiff Brian Hoyland was awakened by the sound of police activity in his front yard. Opening his door, he found officers trying to arrest his wife, who was the passenger in a car suspected of being involved in reported drag racing. This is what Hoyland did from 30-40 feet away, ultimately resulting in him being arrested for obstruction. From the opinion [PDF]:

Out of concern for their safety, Hoyland moved his children to the back of the house and retrieved a cell phone to record the incident outside. He intended to remain inside but changed his mind when he believed he heard the officers yell “shoot” or “shooting.” He proceeded to switch the porch light on, open his front door, and hold his phone, which was recording, out in front of him.

And this is the reaction he got:

Within seconds, an officer shouted, “Drop the camera!” McMenomy yelled at Hoyland to go back inside the house. Hoyland remained where he stood and began screaming at the officers. He shouted, “You are in my yard!” and “What is this, a DWI stop, and you guys are doing this? Are you kidding me?” Hoyland also yelled that his wife was handicapped and demanded that the officers do their jobs “the right way.” McMenomy again ordered Hoyland to “stay inside.” Immediately following this command, with Hoyland remaining in the doorway, “the arrest decision was made” by McMenomy who shouted “you are under arrest,” and ordered Hoyland to raise his hands. About thirty seconds of time elapsed between Hoyland’s emergence from his house into the doorway and McMenomy’s pronouncement that he was under arrest. Hoyland did not resist, raised his hands and laid down on the ground, following the instructions given by the officers. He was taken into custody by McMenomy and Cho without incident.

Since the confrontation was recorded, there is little room for variances between Hoyland and the officers' testimony. As the court sees it, there is no question Hoyland did nothing even remotely approaching "obstruction."

Throughout this encounter, Hoyland never left the area around his front door, failing to ever come closer than 30-40 feet from the officers. He never told his wife or Illetschko to disobey the officers’ commands. He never ran away or resisted the officers as he himself was arrested. Finally, he never physically intervened, and never attempted to physically intervene, in the arrest of anyone.

The local prosecutor found the charge baseless. The prosecutor stated it was clear Hoyland came out to inform officers of his wife's disability while recording the event. At best, Hoyland's actions were nothing more than a "fleeting interruption." The Appeals Court comes to the same conclusion.

Having failed with the "it was obstruction" argument, the officers attempted to portray Holyand's arrest as a necessity for officer safety. The court finds this no more convincing.

Any fear of danger the officers felt due to Hoyland’s presence cannot justify an arrest for obstruction. McMenomy asserts that his mind raced in fear of an ambush when Hoyland emerged from the house. This fear, according to the officers, made Hoyland’s arrest reasonable after he refused to go back inside his home. But the officers are mistaken. However reasonable the command for Hoyland to go back inside may have been, his refusal to do so did not constitute obstruction. As Minnesota law makes abundantly clear, obstruction must be either physical obstruction or verbal conduct, such as fighting words, that has the effect of physically obstructing officers in the performance of their duties. Nowhere in Minnesota law does mere physical presence at a distance constitute obstruction. So arresting Hoyland for obstruction due to his continued presence in his doorway was unreasonable under state law.

Even when we consider his verbal conduct, no reasonable officer could construe his shouting as “physically obstructing or interfering” in the officers’ performance of their duties. See Krawsky, 426 N.W.2d at 877. Admittedly, he was shouting criticisms at the officers. But “[i]n a democracy, public officials have no general privilege to avoid publicity and embarrassment by preventing public scrutiny of their actions.” See Walker v. City of Pine Bluff, 414 F.3d 989, 992 (8th Cir. 2005). And none of Hoyland’s comments could be reasonably interpreted as rising above scrutiny to create a threat or a danger to police or to constitute obstruction.

This allows Hoyland to continue pursuing his Fourth Amendment claim. The court moves on to the First Amendment. Again, the officers argued there was no stifling of Hoyland's First Amendment rights because a) he was obstructing officers, and b) even if he wasn't, he had no Constitutional right to record a traffic stop. The court spends barely any time discussing the officers' obstruction bullshit. Instead, it concentrates on the officers' misguided assertions, which are backed by a previous court decision that's not nearly as helpful as the officers believe it is.

[T]he officers argue that, under Colten v. Kentucky, Hoyland “had no constitutional right to observe a [felony traffic stop] or to engage the [arresting] officer[s] in conversation at that time.”

[...]

But the officers’ reliance on Colten is misplaced for three reasons. First, the location of the traffic stop in Colten—a busy highway—implicated important concerns of public safety. Here, the arrest took place in a residential area with no other vehicles or persons around. And Hoyland was not standing on the side of a highway observing a traffic stop, but rather standing in the doorway of his own home trying to tell the officers that his wife was handicapped…

Here, Hoyland is not challenging the constitutionality of a statute; he is bringing a § 1983 claim against the officers for retaliating against him for exercising his First Amendment rights. Colten, on the other hand, was simply “refusing to move on after being directed to do so . . . without more.”

[L]ater Supreme Court cases make it clear that the First Amendment protects verbal criticism directed at police officers. See, e.g., Hill, 482 U.S. at 461. “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principle characteristics by which we distinguish a free nation from a police state.” Id. at 462-63. Thus Hoyland’s communications were protected activity.

The court goes on to point out Hoyland has a possibly legitimate argument the arrest was made to prevent him from exercising his First Amendment rights.

McMenomy’s deposition testimony clearly shows that the arrest decision was not made after Hoyland had ignored the initial order to go back inside. It was only after Hoyland had stood in the doorway shouting criticisms and messages about his wife’s physical disability that the arrest decision was made… The arrest decision was not made when Hoyland first disobeyed an order, but only after he had begun exercising his First Amendment rights.

Because the charge was bogus and the officers had no probable cause for Hoyland's arrest, both his Constitutional claims will have to be faced by the government defendants. As the court concludes, immunity is a privilege, not a right, and should be treated as such by courts and those seeking to avail themselves of it.

Police officers have a tough job. They must confront dangerous situations and make difficult decisions in short time frames. This is why we offer the protection of qualified immunity—to insulate officers from the constant threat of litigation while serving and safeguarding their fellow citizens. But to receive that protection, we must find as a matter of law that the officers acted within the confines of the Constitution. They must avoid arresting persons without at least arguable probable cause. They must not take adverse actions against persons for exercising their First Amendment rights. Looking at the facts of this case, we cannot hold as a matter of law that the officers acted constitutionally.

The court doesn't go so far as to establish a right to record police, but it does offer up enough precedential cases to make any arguments to the contrary unlikely to find sympathy with the judges. As for Hoyland, he at least has a chance to make his case at the lower level and receive some sort of compensation for an interaction with officers that began with them ordering him to stop filming and ended in a bogus arrest.


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  • icon
    Stephen T. Stone (profile), 30 Aug 2017 @ 4:27pm

    My word, a ruling in a case involving police officers that goes in favor of the general public? Did I fall into an alternate dimension just now?

    reply to this | link to this | view in chronology ]

    • icon
      madasahatter (profile), 30 Aug 2017 @ 4:36pm

      Re:

      Probably the courts are getting tired of these suits so they are beginning lay down some rules. Implicit is the right to record their actions as long as you take reasonable care not to interfere.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Aug 2017 @ 4:46pm

      Re:

      My word, a ruling in a case involving police officers that goes in favor of the general public?

      Don't panic. Nobody's punishing cops yet, they're just allowing the victim some more time in court before the cops buy him off.

      reply to this | link to this | view in chronology ]

    • icon
      TechDescartes (profile), 30 Aug 2017 @ 4:47pm

      Re:

      Cop: I was scared. Really scared. I deserve some QI.

      8th: No, no you weren't. No QI for you.

      Cop: Now I'm scared.

      8th: Yes. Yes you are.

      Of course, the victim hasn't won anything other than the right to try his case. He'll need a jury to decide against the cops as well. And even if he wins, his kids will never be able to unsee watching their dad being arrested for no reason.

      reply to this | link to this | view in chronology ]

      • icon
        JoeCool (profile), 30 Aug 2017 @ 4:58pm

        Re: Re:

        > McMenomy asserts that his mind raced in fear

        And once more see the kind of cowards that pass for LEO these days, which isn't too surprising considering that bullies are well known as cowards, picking only on the weak and vulnerable.

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 30 Aug 2017 @ 5:05pm

          Re: Re: Re:

          Not just cowardice but blatant stupidity as well if you take him at his word, because clearly someone planning an 'ambush' does so by standing clearly visible in the doorway to their house and making their presence known by shouting.

          Coward and idiot or lying thug, neither option leaves the cop in question looking good.

          reply to this | link to this | view in chronology ]

          • icon
            Anonymous Anonymous Coward (profile), 30 Aug 2017 @ 5:14pm

            Re: Re: Re: Re:

            Yes. Making up excuses after the fact, and then trying to fit them to the recorded circumstances requires immense creativity. Immense creativity is something that would lead one to an occupation other than law enforcement. That lack of creativity is endemic in law enforcement, which is why their excuses always suck, even if the courts sometimes buy them, despite the videos.

            reply to this | link to this | view in chronology ]

            • icon
              That One Guy (profile), 30 Aug 2017 @ 5:22pm

              Re: Re: Re: Re: Re:

              That lack of creativity is endemic in law enforcement, which is why their excuses always suck, even if the courts sometimes buy them, despite the videos.

              Could be a bit of a chicken vs egg situation there, after all why bother coming up with a believable lie when odds are quite good that even a lousy one will be enough? The fact that the court didn't just accept what the cops said as The Ultimate Truth likely came as quite the shock to the cops in question, given how often courts do do that.

              reply to this | link to this | view in chronology ]

          • identicon
            David, 30 Aug 2017 @ 11:55pm

            Re: Re: Re: Re:

            Coward and idiot or lying thug, neither option leaves the cop in question looking good.

            More importantly, neither option leaves the cop in question looking suitable for his job. If he does not have the basic skills of judging a situation and choosing appropriate action, he is unfit for patrol service.

            reply to this | link to this | view in chronology ]

          • identicon
            me, 31 Aug 2017 @ 6:45am

            Re: Re: Re: Re:

            Yes yes and yes.

            reply to this | link to this | view in chronology ]

        • icon
          orbitalinsertion (profile), 31 Aug 2017 @ 3:20pm

          Re: Re: Re:

          I know, right? Because i too would be in fear of ambush when someone turns on a light an talks to me... uh... as opposed to actually ambushing me... or something. I think.

          reply to this | link to this | view in chronology ]

      • icon
        Roger Strong (profile), 30 Aug 2017 @ 5:37pm

        Re: Re:

        Of course, the victim hasn't won anything other than the right to try his case. He'll need a jury to decide against the cops as well. And even if he wins, his kids will never be able to unsee watching their dad being arrested for no reason.

        But at least now he'll be safe from any wrongdoing by his home-town police.

        The next time he sees them in his rear-view mirror, they probably just want his autograph.

        reply to this | link to this | view in chronology ]

        • identicon
          John Snape, 30 Aug 2017 @ 5:55pm

          Re: Re: Re:

          Is it possible to get a restraining order against the police if they are harassing you for causing one of their coworkers to pay out for their misdeeds?

          Seems like a logical thing to do if they are hell-bent on getting their petty revenge.

          reply to this | link to this | view in chronology ]

          • icon
            Bergman (profile), 30 Aug 2017 @ 8:44pm

            Re: Re: Re: Re:

            Yes, it is. Of course, the penalty for violating the order is arrest and contempt of court charges, so you'd have to find police willing to arrest their own.

            If they aren't willing, then there is no penalty for violating the order. Even though in many states, being the subject of a protective order would disqualify someone from carrying a gun.

            reply to this | link to this | view in chronology ]

  • identicon
    Aaron, 30 Aug 2017 @ 4:36pm

    ...so this is merely a civil case against those cops -- it should be a criminal case of assault and kidnapping against those cops.

    but here the local police union will pay the legal costs of the cops as the case drags on for another year. The cops remain on full salary, even for court appearances. In the end they will get a slap on the wrist, at most -- and go on to eventually draw fat pensions.

    reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 30 Aug 2017 @ 8:48pm

      Re:

      The statute the case is being brought under is 42 USC 1983. Any violation of rights that you could legitimately sue under 1983 for and win is ALSO a criminal (not civil) violation under 18 USC 241 & 242.

      Depending on the nature of the rights violation, a 242 violation can be anything from a misdemeanor to a capital crime. But police rarely act alone, so the proper statute for most police-instigated rights violation is 241, not 242. Any 241 violation starts off as a felony (ten years in prison if convicted) and can escalate to a capital crime the same way 242 can.

      The federal agency in charge of investigating and prosecuting these crimes, known informally as 'color of law violations', is the FBI. Unfortunately, the FBI is too busy creating government conspiracies to go out and get paranoid schizophrenics to actually do that part of their job.

      reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 30 Aug 2017 @ 4:38pm

    Free Nation vs Police State

    “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principle characteristics by which we distinguish a free nation from a police state.”

    So what are the rest of those characteristics, and why are they not always followed? Like the oath that all public officials take where they swear to uphold the Constitution.

    How do asset forfeitures fit? How does arresting people for the 'illegal' act of filming police fit? How does whistle-blowing fit? How does doing things that necessitate 'good faith exception' or 'qualified immunity' fit? Etc..

    reply to this | link to this | view in chronology ]

  • icon
    stderric (profile), 30 Aug 2017 @ 4:55pm

    McMenomy asserts that his mind raced in fear of an ambush

    Ladies and gentlemen: may I introduce the new 'furtive movement near his waistband.'

    reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 30 Aug 2017 @ 8:49pm

      Re:

      Technically, the way many cops rest their hands on their equipment belt is a movement towards their waistband -- and doing so as a nervous habit counts as furtive.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Aug 2017 @ 5:23pm

    "Even when we consider his verbal conduct, no reasonable officer could construe his shouting as “physically obstructing or interfering” in the officers’ performance of their duties."

    I think we've established that these cops are unreasonable. Unreasonable cops shouldn't be cops.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Aug 2017 @ 5:49pm

    MyNameHere's not going to like this, not one bit. Or Hamilton. Come to think of it, those two lovers are pretty much conjoined at the hip at this point.

    reply to this | link to this | view in chronology ]

  • icon
    David (profile), 31 Aug 2017 @ 2:30pm

    Officer fear, raises it ugly head again.

    Yet again another police officer that was currently violating the rights of citizens waves the fear flag. It's almost as if they have read a book/pamphlet about using **fear** to circumvent any repercussions for their illegal actions.

    One suspects that such officers were never good officer candidates in the first place.

    reply to this | link to this | view in chronology ]


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