Two Interesting Cases From the 9th Circuit

From the OCT LED

Click to expand...

SATIRICAL MESSAGE – “I AM A . . . SUICIDE BOMBER TERRORIST” PAINTED ON HIS VAN BY MILD-MANNERED, ANTI-GOVERNMENT “NUT” WAS PROTECTED AS “FREE SPEECH” UNDER THE FIRST AMENDMENT –

In Fogel v. Collins, 531 F.3d 824 (9th Cir. 2008) (decision filed June 27, 2008), the Ninth Circuit rules that, taking into account the full context of the investigation of messages painted on a 1970 white VW van, officers did not have justification, in light of constitutional freedom of speech protection, to arrest and jail the suspect, to impound his van, or to make him paint over the van’s messages.

The Fogel Court describes the van’s decoration as follows:

The words “I AM A @#$%ING SUICIDE BOMBER COMMUNIST TERRORIST!” were painted in block letters on the back of the van above the rear window. On the rear window was painted “PULL ME OVER! PLEASE, I DARE YA[.]” Below the window in slightly smaller letters was the text “ALLAH PRAISE THE PATRIOT ACT ... @#$%ING JIHAD ON THE FIRST AMENDMENT! P.S. W.O.M.D. ON BOARD!” A small American flag was attached to the van below the lettering. The rest of the van was decorated with slogans and paintings that had no political or threatening character.

A citizen complained about the van. Law enforcement officers from a Utah town investigated. They concluded on contacting him that Fogel was a mild-mannered anti-government enthusiast, who some others in the community called an “anti-government nut.” Fogel consented to a search of the van, which the officers did, but in doing so they did not treat the van as if it actually contained a bomb. The search yielding nothing. Nonetheless, solely because of the messages on the van, the officers arrested him, took him to jail, and impounded his van, and made him paint over the messages before allowing him to retrieve the van from impound. The prosecutor declined to file charges, and Fogel sued.

The Fogel Court concludes that under either an objective (reasonable person) or a subjective (focused on Mr. Fogel) analysis, freedom of speech protects the messages on the van because no true threat was being made:
Applying the objective standard, we hold that “a reasonable person would [not] foresee that the statement [on the van] would be interpreted by those to whom [Fogel] communicates the statement as a serious expression of intent to harm or assault.” A reasonable person would expect that an observer of Fogel's van would see an old Volkswagen van covered with artwork, an American flag, and an obviously satiric or hyperbolic political message. The First Amendment and USA PATRIOT Act references are overtly political speech, and reasonable observers would be hard-pressed to believe that an actual suicide bomber would so boldly announce his presence and intentions. The remainder of the van displayed innocuous images and phrases, including some with spiritual meaning, created through the artistic endeavors of Fogel and his friends.

When we take into account the entire context of Fogel's statements on the van, it is hard to see how any reasonable observer would have believed the statements were serious expressions of an intent to cause harm.
Applying the subjective standard, we hold that Fogel did not intend his statements to threaten serious harm to anyone. In his deposition, he explained that his goal was:
to express disagreement . . . with the Patriot Act, and I wanted to display the need to express yourself and use your rights, especially when something like the Patriot Act is working to directly take those rights away and let people know that you still want those rights by exercising them. I wanted to express frustration . . . and I figured this was a safe, healthy way to do that.

Fogel also explained how he envisioned others would interpret the van:
It seemed to me impossible to construe . . . that someone was actually an Islamic extremist with any reason or desire to do harm to anyone. It seemed pretty plain to me that it's a joke and it's ironic and it's backwards, and that's just to get people to think about how backwards some of our government's reasoning is.

There is virtually no evidence that Fogel subjectively intended the speech as a true threat of serious harm. The officers noted that Fogel was “mildmannered” and did not have a threatening presence. None of the officers interpreted Fogel's words or actions as threatening. Even Fogel's purported statement in the parking lot that he intended to scare people-to scare them into thinking, or to scare them in the same way the United States government is scaring Iraqi citizens-is consistent with Fogel's contention that he intended his message to be satirical. Fogel's goal of shocking or “scaring” observers of the van into reflecting on political events is exactly the kind of “unpleasantly sharp attack[] on government and public officials” the First Amendment welcomes and protects.
[Citations omitted]


The Fogel Court goes on to conclude that the police officers were entitled to qualified immunity, however, because the law was not clearly established on the freedom of speech issue at the time they made the arrest. The Court also concludes that the police agency is not liable because no agency policy or policy-maker was involved in this case.
Result: Affirmance of U.S. District Court (Utah) dismissal order; the officers and agency are not liable for civil rights violation.

LED EDITORIAL COMMENT: The officers and agency escaped civil liability in this case, but the next time a case with similar facts comes to the courts, there may be liability. That is because the granting of qualified immunity is often a “but-don’t-do-it-again ruling.” The Ninth Circuit probably will now consider the law to be “clearly established” if a similar fact pattern comes before it.

Click to expand...

EXTENDING DETENTION OF ANTI-ABORTION PROTESTORS WHILE WAITING FOR A SUPERVISOR TO HELP OFFICERS INTERPRET THE LAW WAS NOT REASONABLE –

In Center for Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff’s Department, 533 F.3d 780 (9th Cir. 2008) (decision filed July 2, 2008), the Ninth Circuit rules, among a number of other things, that law enforcement officers who are having difficulty deciding whether conduct constitutes a crime are not justified in extending a Terry detention of a suspect for 30 minutes while they wait for a supervisor to come to the scene to help them figure out the law (as opposed to such brief delay to figure out the facts).

This was not the main issue in this civil rights lawsuit under 42 U.S.C., section 1983. The decision addresses several questions revolving around whether, under California statutes and under the federal constitution’s First and Fourth Amendments, the California officers lawfully detained anti-abortion protesters, lawfully searched their vehicles, and lawfully ordered them out of the area near a middle school. The decision focuses on interpretation of California statues, particularly a statute about conduct on K-12 school property. But officers in all jurisdictions should keep in mind one lesson of this case. In light of First Amendment free speech protection, a crime is not generally presented by the mere fact that the images and words of anti-abortion protestors are highly offensive to parts of an audience. This includes even the troubling circumstances here involving communications to middle school children arriving at school.
Result: Reversal of U.S. District Court (California) order of summary judgment for law enforcement defendants; case remanded for trial.

Click to expand...

When I get a van, I'm going to paint that on it.

Click to expand...

Does anyone happen to know what case states that a Terry Stop can only be for 30 minutes?

Click to expand...

Fogel's goal of shocking or “scaring” observers of the van into reflecting on political events is exactly the kind of “unpleasantly sharp attack on government and public officials” the First Amendment welcomes and protects.

Click to expand...

Agreed. The guy may have been perfectly legal in his doings. But he is a douche bag. He probably is close friends with some of the Jonesboro baptists...

Click to expand...

I can't believe anyone supports this wacko. There should be no place that you can get away with BS like that. (Flame Suit On):cuss:

Click to expand...

Hmmmm...

30 minutes too long, 24 minutes okay.

http://findarticles.com/p/articles/mi_qn4183/is_20060913/ai_n16720738

Carry on...

Click to expand...

I can't believe anyone supports this wacko. There should be no place that you can get away with BS like that. (Flame Suit On):cuss:

Click to expand...

BlaineG wrote:

I can't believe anyone supports this wacko. There should be no place that you can get away with BS like that. (Flame Suit On):cuss:

Click to expand...

I don't like what he wrote on his van, but it is his van, and he has a right to voice his opinion. What if it was one of us, but the signage instead said negative things about Dems trampling our gun rights, and that we are terrorists like the Founding Fathers were? Would that be OK?

I believe in the right to free speech, especially free political speech. The government should not stifle it.




[suP]His neighbors, however, ought to slash his tires.[/suP]

Click to expand...

but if he is acting out

Click to expand...

but if he is acting out

Click to expand...

One mans acting out is another mans free speech. We should be free to do what we want as long as we are not causing direct physical harm or present danger of such. "present danger of such" should be enforced very narrowly.

Click to expand...

I have no respect for the 9th Circus Court....they are the most overturned court in America:banghead:

Click to expand...