No Qualified Immunity For Cops Who Made Stuff Up To Justify Seizing A Man's Phone For Twelve Days

from the but-what-if-terrorism-or-what-not dept

Here's an interesting decision [PDF] by the Eighth Circuit Court of Appeals. On one hand, it says cops can possibly hassle people for filming them if they can find almost any reason at all to justify it. On the other hand, it says they definitely cannot take people's property (cameras, phones) just because their nearly unjustified hassling gave them the opportunity to seize it.

Here's the setup for the multiple rights violations, courtesy of the Appeals Court:

Daniel Robbins was recording illegally parked vehicles from a public sidewalk adjacent to the Des Moines Police Station when officers approached him and asked him what he was doing. Robbins was uncooperative, and the officers temporarily seized him and his camera and cell phone.

This probably would have gone unhassled if it hadn't occurred near a police station. When citizens record officers on their home turf, they become inordinately defensive. Claims of terrorist attacks or the War On Cops™ often arise, even though -- as officers should be painfully aware -- anything they do on public property is observable by the public. The presence of recording equipment shouldn't change a thing.

Nevertheless, the Des Moines police officers decided to make it a thing. Someone referred to here as a "detective" decided to (inadvertently) make a federal case about a citizen recording illegally-parked cars and cops going to and from the station. He had reasons.

While walking towards his car, Detective Youngblut observed Robbins recording vehicles as well as officers and civilian employees entering and leaving the police station. Because he was aware that vehicles had recently been stolen from and vandalized in that area, and because he was aware of a previous incident in which two officers had been murdered by a person with a history of filming the police, Detective Youngblut approached Robbins to make an inquiry.

LOL. OK. Well, let's just ground all the planes and hassle every passenger because one time people flew planes into buildings, killing a few thousand people. While this "suspicion" may have justified a quick, consensual Q&A with Robbins, "Detective" [these scare quotes will be even more justified in a moment…] Youngblut decided to go further.

Other officers -- apparently similarly offended by this reckless display of First Amendment rights -- got to Robbins first. And they applied pressure.

Robbins refused to identify himself or respond to law enforcement inquiries, explaining “I’m taking pictures because it’s perfectly legal for me to do so.” Lieutenant Leo initiated physical contact when he lifted the back of Robbins’s shirt, grabbed his forearm and placed it above his head, and patted him down. Robbins repeatedly asked what about his conduct was illegal, and the officers responded that while he was not doing anything illegal, he was suspicious.

Ah. Not illegal. Just worth getting uptight about. The officers ordered Robbins to leave. He refused. So they got even stupider. They demanded Robbins ID himself. This was also wrong. Iowa has no law requiring citizens to ID themselves when interacting with police officers.

But it wouldn't have mattered for Robbins. Why? Because the man with all the investigative skills -- Detective Youngblut -- told the officers to just make something up.

Detective Youngblut suggested that the officers “just make a suspicious activity case . . . [and] confiscate the camera until we have a reason for what we’re doing.”

Swell. If you don't have a REAL reason for doing something, just find ANY reason.

Robbins asked if he was under arrest and being detained against his will. The answer to both questions was yes, provided by the detective who said to make something up. At that point, the illegality started to pile up.

The officers seized Robbins’s cell phone and camera. Detective Youngblut photographed Robbins for his file and then told him that he was free to go. The encounter lasted approximately twelve minutes.

The "encounter" may have lasted 12 minutes, but the seizure of Robbins' phone and camera lasted 12 days. Robbins lost both on May 10. It wasn't until his lawyer spoke to the police department that his items were returned.

Unfortunately, the court says all of this bullshit -- including the detective suggesting someone just make something up -- isn't a violation of Robbins' First Amendment rights. According to the Eighth Circuit, there was enough non-made-up suspicion to justify the rousting of Robbins.

Here, law enforcement officers observed Robbins recording both vehicles near the police station and officers and civilian employees entering and leaving the police station. The officers also possessed other significant information: they were aware of recent criminal activity involving cars parked in the area, and they were aware of a previous filming and stalking incident that escalated into the murder of two officers. Armed with this knowledge, Officer Youngblut approached Robbins and asked him what he was doing. Robbins was non-responsive, evasive, and confrontational. Officer Youngblut reasonably found Robbins’s behavior suspicious.

Robbins’ behavior that went beyond any constitutionally protected recording activity when combined with the officers’ knowledge about vehicles being stolen and vandalized in the area and the previous filming that led to officers being murdered could cause an objectively reasonable person in the officers’ position to suspect Robbins was up to more than simply recording the police. Under these circumstances, we can neither say that the officers’ conduct was objectively unreasonable under clearly established law, nor in violation of the First Amendment.

According to the court, Robbins' filming of police was suspicious enough to justify this interaction. But it was not suspicious enough to justify the seizing of his recording equipment. And definitely not enough to justify holding onto it for 12 days.

The officers argued they never arrested Robbins, therefore the court should bypass analysis of the seizure of Robbins himself. The court says it's pretty clear Robbins was arrested, even if momentarily. That much was made clear by Detective Youngblut, who told Robbins he was both arrested and detained.

Having failed to sway the court with this "non-arrest" argument, the officers went fishing for arrest reasons. One theory was "loitering." Wrong, says the court.

Viewing the facts in a light most favorable to Robbins, a reasonable officer would not have believed he had probable cause to arrest Robbins for loitering because there is no evidence Robbins was blocking the sidewalk or disrupting the activity of the police station.

The other theory was Robbins providing officers with a false name when hassled: "John Doe." Wrong again, says the court. This fake name wasn't presented until after Robbins was already under arrest. It's impossible to arrest someone for something they didn't do until after they were arrested.

Despite there being a clear warrant requirement for search and seizure of cellphones following the Riley decision, the cops argued their seizure of Robbins' recording equipment fell into a "narrow exception'' that covers "brief detentions" of personal property that are "minimally invasive." But the officers could not explain how a 12-day seizure was "brief," even if it was "minimally invasive." GTFO, says the Eighth.

The Supreme Court concluded that a ninety-minute detention of a suspect’s luggage based only on reasonable suspicion was unreasonable.Regardless of whether the Place exception applies to personal effects such as cell phones and cameras, the duration of the seizure – twelve days – was unreasonable.

The refusal to return the property to Robbins made it worse. And it shows Detective Youngblut really hasn't earned that title.

In addition, the officers did not tell Robbins with any precision when or how he would get his property back. Rather, Detective Youngblut told Robbins he was investigating a homicide and would apply for a search warrant “at some point.” Detective Youngblut disposed of his suspicions and the need for a search warrant after discovering Robbins had a YouTube page dedicated to illegally-parked vehicles. Even so, Detective Youngblut continued to detain Robbins’s property until his counsel demanded its return.

Owning a fishing rod doesn't automatically make you a great fisherman. And it sure as shit doesn't make you a good detective. This was a punitive seizure and Youngblut couldn't even be bothered to come up with a credible excuse for separating Robbins from his phone and camera for 12 days.

The court says being a jerk isn't a crime. None of this was justified.

Under the facts of this case, the governmental interest, presumably to dispel whatever suspicion the officers had about Robbins, does not outweigh the intrusion to Robbins. The seizure was unreasonable in the absence of arguable probable cause. See Place, 462 U.S. at 707–10.

The defendants alternatively argue that Robbins’s uncooperativeness gave them probable cause to seize his property. This argument fails for the reasons stated above. The defendant officers violated Robbins’s clearly established right to be free of unreasonable seizures of his property, see id., and are not entitled to qualified immunity.

The case heads back to the district court. The officers -- including this so-called "detective" -- will have to take their chances on a jury finding illegal arrest and follow-up seizure were somehow justified. This seems unlikely. Chances are Robbins will receive a settlement before a jury has a chance to receive instructions from a federal judge. The officers may have had their reasons to approach a man filming a police station, but nothing they did after they approached him was Constitutional.

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Filed Under: 4th amendment, daniel robbins, des moines, phones, qualified immunity, seized property


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  • identicon
    Anonymous Coward, 12 Jan 2021 @ 4:17pm

    Sue him into poverty wherein he can then live on the streets and be hassled by his former colleagues for no reason. Piece of crap.

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

  • identicon
    Anonymous Coward, 12 Jan 2021 @ 7:01pm

    Sloppy wording?

    Robbins’ behavior that went beyond any constitutionally protected recording activity when combined with the officers’ knowledge about vehicles being stolen and vandalized in the area and the previous filming that led to officers being murdered could cause an objectively reasonable person in the officers’ position to suspect Robbins was up to more than simply recording the police.

    Nope. Robbins' behavior did NOT go beyond constitutionally protected recording activity.

    The judge may assign "reasonable suspicion" by combining legal activity with the knowledge of previous events, but that does not change the status of the activity being observed.

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

  • icon
    Bergman (profile), 12 Jan 2021 @ 9:43pm

    Conspiracy Against Rights under Color of Law

    Robbins had probable cause for the officers using their official authority to violate his first and fourth amendment rights.

    Iowa allows a citizen's arrest to be made for a felony the citizen witnesses (the only state that doesn't is North Carolina). The US Supreme Court has ruled that unless there is a superseding statute (there wasn't then and isn't now) a federal citizen's arrest is lawful under the same circumstances and limits that a state citizen's arrest would be (United States v. Di Re (1948)).

    Which brings us to Title 18, Section 241 of the US Code, which defines any two or more government officials using their official authority to violate any civil, statutory or constitutional rights to be a felony punishable by ten years in a federal prison.

    https://www.justice.gov/crt/conspiracy-against-rights

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

    • identicon
      Paul B, 13 Jan 2021 @ 6:15am

      Re: Conspiracy Against Rights under Color of Law

      The law, and the ground truth are very different things. You would need a situation like a person in a cop uniform doing a mass shooting to get away with a citizen arrest of an active duty law enforcement officer.

      You would never win in the field with a case like this and at best your correct recourse is to take it to court.

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

  • icon
    NotTheMomma (profile), 13 Jan 2021 @ 4:43am

    Hang on here...

    So cars have been stolen from the area in front of the police station and cops murdered in front of the police station.

    I think these cops have more to worry about than some random guy taking pictures.

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

  • identicon
    Cowardly Lion, 13 Jan 2021 @ 5:10am

    Resisting arrest

    Wrong again, says the court. This fake name wasn't presented until after Robbins was already under arrest. It's impossible to arrest someone for something they didn't do until after they were arrested.

    It would be nice if this common sense could be applied to the old "arrested for resisting arrest" horseshit.

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

  • identicon
    jim kelly, 13 Jan 2021 @ 10:21am

    the big problem with the court's findings

    This part of the court's findings REALLY bugs me:

    "Robbins’ behavior that went beyond any constitutionally protected recording activity when combined with the officers’ knowledge about vehicles being stolen and vandalized in the area and the previous filming that led to officers being murdered could cause an objectively reasonable person in the officers’ position to suspect Robbins was up to more than simply recording the police."

    A couple of big problems. First, are these claims of knowledge by the officers verified? Were there actual thefts out of that lot? And were two officers really killed in an escalation of stalking behavior that started with similar videoing? Really?

    The one thing we know about the officer in question, other than that he's bad at his job, is that he's willing to stretch the truth to hassle an innocent citizen. Is the court simply taking that part of his story at his word? Because I don't. I simply don't believe that part is true. I strongly suspect there are holes a mile wide in that crucial aspect of the cop's justification.

    Second, and more important problem, who fucking cares whether it's true or not?! The defendant is right on the law, more right than the court. Is what he is doing illegal? No? Then case closed.His legal activity, combined with some phantom crimes that began with similar activity CANNOT create reasonable articulable suspicion. Because if they do, that effectively revokes the 4th Amendment. You don't have freedom of press because a criminal used it once to commit a crime? GTFO!

    If true, all the situation does is give cops a very strong reason to WANT to ID this guy. But wanting ID and being legally entitled to get ID are different things. Cops can apply all kinds of tricks and pressure in the confines of consensual conversation. They can surveil the guy, try to get his plates, etc. But they don't get to reach into the pocket of a civilian committing no crimes and pulling out his ID just because they really, really want to know who he is. The fact that the court suggest otherwise is frankly scary.

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

  • identicon
    Anonymous Coward, 13 Jan 2021 @ 11:54am

    Listen to the court recording on youtube. The judge is using the "this day and age" excuse for the police violating the guys rights.

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

  • icon
    NICK NITRO (profile), 13 Jan 2021 @ 3:33pm

    Photography and the recording of video are common activities

    Members of the public, including the press, have a First Amendment right to observe, take photographs and record video in any public place where they are lawfully present. Photography and the recording of video are common activities and are neither crimes nor indications of criminal activity,in themselves. Neither photography nor the recording of video, standing alone, can form the basis for a detention, arrest, or warrant-less search.

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

  • identicon
    Anonymoose, 14 Jan 2021 @ 5:05pm

    This Just In

    Court affirms police can deprive public of anything but property.

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


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