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Thread: Szymecki v. Deputy Houck

  1. #1
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    The case was dismissed on summary judgement at the close of the plantiff's evidence. Judge Morgan held that taking a video of alleged police misconduct in a public place is not free expression under the First Amendment and therefore qualified immunity applies.

    Anyone know of "clearly established" case law in the Fourth Circuit, Virginia or U.S. Supreme Courts that establishes citizens have a right to videotape alleged police misconduct?

    Please take a few moments to read the attached PDF. It is quite amusing what politically appointed judges come up with when determined to win for the government side at any cost to the law.



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    You should contact the ACLU of Va. and the Rutherford Institute ASAP - this is a pretty questionable ruling - would let the police shut down monitoring of their activities in public places.

    Further, as a procedural matter, there is a view that the court MUST decide the first prong of qualified immunity test (what the law is) so that future Plaintiffs can enjoy the benifit of a clearly devided rule of law. The judge in this case just skipped ahead without deciding that people have a right to film the police.

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    Wow.

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    Campaign Veteran marshaul's Avatar
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    Mike wrote:
    You should contact the ACLU of Va. and the Rutherford Institute ASAP - this is a pretty questionable ruling - would let the police shut down monitoring of their activities in public places.*

    Further, as a procedural matter, there is a view that the court MUST decide the first prong of qualified immunity test (what the law is) so that future Plaintiffs can enjoy the benifit of a clearly devided rule of law.* The judge in this case just skipped ahead without deciding that people have a right to film the police.
    I dare say this ruling is more than "pretty questionable", it is patently wrong.

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    The more I think about this, the more sense it makes to note your appeal, giving the other side more time to twist in agony and maybe settle.

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    marshaul wrote:
    Mike wrote:
    You should contact the ACLU of Va. and the Rutherford Institute ASAP - this is a pretty questionable ruling - would let the police shut down monitoring of their activities in public places.

    Further, as a procedural matter, there is a view that the court MUST decide the first prong of qualified immunity test (what the law is) so that future Plaintiffs can enjoy the benifit of a clearly devided rule of law. The judge in this case just skipped ahead without deciding that people have a right to film the police.
    I dare say this ruling is more than "pretty questionable", it is patently wrong.
    +1

    An appellate ruling would make a bigger point and carry future benefit with it as well.

    Hope you go for it.

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    marshaul wrote:
    Mike wrote:
    You should contact the ACLU of Va. and the Rutherford Institute ASAP - this is a pretty questionable ruling - would let the police shut down monitoring of their activities in public places.

    Further, as a procedural matter, there is a view that the court MUST decide the first prong of qualified immunity test (what the law is) so that future Plaintiffs can enjoy the benifit of a clearly devided rule of law. The judge in this case just skipped ahead without deciding that people have a right to film the police.
    I dare say this ruling is more than "pretty questionable", it is patently wrong.


    Yeah, I think "wrong" is the correct word. In Saucier v. Katz, 533 U.S. 194, 201 (2001) the United States Supreme Court commands:

    "A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? This must be the initial inquiry. Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). In the course of determining whether a constitutional right was violated on the premises alleged, a court might find it necessary to set forth principles which will become the basis for a holding that a right is clearly established. This is the process for the law's elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry. The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer's conduct was unlawful in the circumstances of the case." (emphasis added).

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    Mike wrote:
    marshaul wrote:
    Mike wrote:
    You should contact the ACLU of Va. and the Rutherford Institute ASAP - this is a pretty questionable ruling - would let the police shut down monitoring of their activities in public places.

    Further, as a procedural matter, there is a view that the court MUST decide the first prong of qualified immunity test (what the law is) so that future Plaintiffs can enjoy the benifit of a clearly devided rule of law. The judge in this case just skipped ahead without deciding that people have a right to film the police.
    I dare say this ruling is more than "pretty questionable", it is patently wrong.


    Yeah, I think "wrong" is the correct word. In Saucier v. Katz, 533 U.S. 194, 201 (2001) the United States Supreme Court commands:

    "A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? This must be the initial inquiry. Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). In the course of determining whether a constitutional right was violated on the premises alleged, a court might find it necessary to set forth principles which will become the basis for a holding that a right is clearly established. This is the process for the law's elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry. The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer's conduct was unlawful in the circumstances of the case." (emphasis added).
    Basis for appeal? Looks like a slam dunk to this layman.

    Yata hey
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    Old and treacherous will beat young and skilled every time. Yata hey.

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    And in 2007 the Supreme Court reiterated the rigid order of battle mandate and the policy rationale in Scott v. Harris, 550 U.S. 372, ___,127 S.Ct. 1769, 1774 (2007) (Scalia, J., for the majority):


    "In resolving questions of qualified immunity, courts are required to resolve a 'threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? This must be the initial inquiry.' style="BACKGROUND-COLOR: #ffff00"Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) style="BACKGROUND-COLOR: #ffff00"Ibid.United States v. Treasury Employees, 513 U.S. 454, 478, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995) (citing Ashwander v. TVA, 297 U.S. 288, 346-347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring)), we have said that such a departure from practice is 'necessary to set forth principles which will become the basis for a [future] holding that a right is clearly established.'" style="BACKGROUND-COLOR: #ffff00"Saucier, supra, at 201, 121 S.Ct. 2151."

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    Let me see if I've got this right: the judge is saying that a private citizen, who is not being detained, charged, or arrested, may not make a video of the open, public behavior of an LEO because the LEO doesn't want it to happen. What course would the LEO be able to take if a dozen OCDO people were there and simultaneously decided to take out their cell phones and record the incident? Would we all be put under arrest? Charged with what? How can an officer expect "privacy" when operating in a completely public venue?

    The next time anything like this happens, we ALL have to be ready to make any damn video or audio recording we can, and encourage any other private citizen to do the same with us.

  11. #11
    Regular Member Virginiaplanter's Avatar
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    Objection! Circular reasoning!

    The judge says that you must prove the known existence of the right by case law within the Fourth circuit that already established the right. So, pray tell, how does one find case law that by its very nature can never exist? For it to exist there must be precedent, but there can never be precedent because the court refuses to recognize the right because there is no precedent! Absurd!!!

    Apparently the Judge has never seen the show COPS





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    Can someone copy and paste the text from that attachment? I'm not at home, and I can not open that .pdf file.
    Why open carry? Because 1911 > 911.

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    AbNo wrote:
    Can someone copy and paste the text from that attachment? I'm not at home, and I can not open that .pdf file.
    It's an image scan of the ruling (9 pages), no text is present. Sorry...

    TFred


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    Renegade wrote:
    The case was dismissed on summary judgement at the close of the plantiff's evidence. Judge Morgan held that taking a video of alleged police misconduct in a public place is not free expression under the First Amendment and therefore qualified immunity applies.

    Anyone know of "clearly established" case law in the Fourth Circuit, Virginia or U.S. Supreme Courts that establishes citizens have a right to videotape alleged police misconduct?

    Please take a few moments to read the attached PDF. It is quite amusing what politically appointed judges come up with when determined to win for the government side at any cost to the law.
    First, this is not an isolated incident. These cases are happening everywhere, it seems.

    Here is the PDF to:

    Robinson v. Fetterman, 378 F.Supp.2d 534 (E.D.Pa.,2005.) July 19, 2005


    Here are some other articles:

    The First Amendment Protects The Right to Videotape Police

    Massachusetts police arrest man for videotaping them “without consent”

    The picture that drove a Coral Gables police officer over the edge

    A federal court has ruled police cannot arrest a man for peacefully videotaping a traffic stop.


    In reading Judge Morgan's opinion, he seems to misapply the "clearly established" standard accepted by the 4th Circuit. He writes on page 7:

    the ‘contours of the right’ must have been so conclusively drawn as to leave no doubt that the challenged action was unconstitutional.”
    Yet he glosses over the full rule articulated in Anderson v. Creighton, 483 U.S. 635, 640:

    The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, see Mitchell, supra, 472 U.S., at 535, n. 12, 105 S.Ct., at 2820, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.
    Therefore, it is not a requirement that SCOTUS or the 4th Circuit has ruled specifically that videotaping cops is protected by the first amendment. In contrast to Morgan's opinion, Judge Battle applies correct reasoning in Fetterman:


    The activities of the police, like those of other public officials, are subject to public scrutiny. Indeed, "the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers." City of Houston, Tex. v. Hill, 482 U.S. 451, 461 (1987). Although Robinson need not assert any particular reason for videotaping the troopers, he was doing so in order to make a visual record of what he believed was the unsafe manner in which they were performing their duties. He had previously talked to Arthur Hershey, a Representative in the Pennsylvania General Assembly, about his concerns. Robinson's right to free speech encompasses the right to receive information and ideas. Stanley v. Georgia, 394 U.S. 557, 564 (1969). He also has a First Amendment right to express his concern about the safety of the truck inspections to the appropriate government agency or officials, whether his expression takes the form of speech or conduct. See Texas v. Johnson, 491 U.S. 397, 404 (1989); Minnesota State Board for Cmty. Colleges v. Knight, 465 U.S. 271, 308 (1984).

    Videotaping is a legitimate means of gathering information for public dissemination and can often provide cogent evidence, as it did in this case. In sum, there can be no doubt that the free speech clause of the Constitution protected Robinson as he videotaped the defendants on October 23, 2002. See Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000); see also Stanley, 394 U.S. at 564 (1969); Whiteland Woods, L.P. v. Township of West Whiteland, 193 F.3d 177, 180 (3d Cir. 1999).

    Moreover, to the extent that the troopers were restraining Robinson from making any future videotapes and from publicizing or publishing what he had filmed, the defendants' conduct clearly amounted to an unlawful prior restraint upon his protected speech. Vance v. Universal Amusement Co., Inc., 445 U.S. 308, 316 & n.13, 317 (1980); Near v. State of Minnesota ex. rel. Olson , 283 U.S. 697 (1931).
    As you can see, Judge Battle cites numerous SCOTUS decisions to support his opinion. Morgan could have done so as well but chose not to.

    I would conclude by suggesting that this opinion is not merely in error, but is dangerous as well. It could be used by LEO's throughout Virginia to threaten to arrest anyone who records their misconduct in public. Their rationale would be that they now have legal permission to do so.

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    Virginiaplanter wrote:
    Objection! Circular reasoning!

    The judge says that you must prove the known existence of the right by case law within the Fourth circuit that already established the right. So, pray tell, how does one find case law that by its very nature can never exist? For it to exist there must be precedent, but there can never be precedent because the court refuses to recognize the right because there is no precedent! Absurd!!!
    Great point, Planter.

    Thanks for the analysis, Mike!
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Citizen wrote:
    Virginiaplanter wrote:
    Objection! Circular reasoning!

    The judge says that you must prove the known existence of the right by case law within the Fourth circuit that already established the right. So, pray tell, how does one find case law that by its very nature can never exist? For it to exist there must be precedent, but there can never be precedent because the court refuses to recognize the right because there is no precedent! Absurd!!!
    Great point, Planter.

    Thanks for the analysis, Mike!
    Thank god there is someone here that can fill us layman in on this legal mumbo jumbo!

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    Repeater wrote:
    SNIPIt could be used by LEO's throughout Virginia to threaten to arrest anyone who records their misconduct in public. Their rationale would be that they now have legal permission to do so.
    I'm not sure that would fly justyet.

    Its one thing to not be able to sue on 1A grounds.

    Its something else forthe act of recordingto be illegal--necessary for a legitimate arrest, I should think, and to seize the device.

    I think there is already case law to the effect that there is no privacy against being photographed, video taped, recorded in public.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    The problem is, they don't have to be "right". They just have to be "not wrong enough" to get fired and/or sued.

    And that would seem to be much easier after this ruling.

    TFred


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    TFred wrote:
    The problem is, they don't have to be "right". They just have to be "not wrong enough" to get fired and/or sued.

    And that would seem to be much easier after this ruling.

    TFred
    That's what I'm trying to address.

    False arrest is still false arrest, illegal seizure is still illegal seizure. You may not be able to sue for 1A violations, but 4A violations would still be actionable, I should think.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

  20. #20
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    This ruling flies in the face of settled law. Shooting video of people in a public place is legal. While there may be an issue with recording audio, so long as the area being videoed is an area open to the general public, the camera may run.

    Appeal it now!


    Regards
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  21. #21
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    Citizen wrote:
    TFred wrote:
    The problem is, they don't have to be "right". They just have to be "not wrong enough" to get fired and/or sued.

    And that would seem to be much easier after this ruling.

    TFred
    That's what I'm trying to address.

    False arrest is still false arrest, illegal seizure is still illegal seizure. You may not be able to sue for 1A violations, but 4A violations would still be actionable, I should think.
    And I agree with you. There is no authority to threaten to arrest Debbie for Obstruction of Justice, because she was not engaged in criminal conduct.

    Whether she can raise this issue on appeal is unclear. I see that the court already dismissed her 4th A. claims.

  22. #22
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    Hawkflyer wrote:
    This ruling flies in the face of settled law. Shooting video of people in a public place is legal. While there may be an issue with recording audio, so long as the area being videoed is an area open to the general public, the camera may run.

    Appeal it now!


    Regards
    The judge, for whatever reason, avoided citing the case he should have cited, Pritchett v. Alford, 973 F.2d 307 (4th Cir. 1992).

    [SNIP]
    The fact that an exact right allegedly violated has not earlier been specifically recognized by any court does not prevent a determination that it was nevertheless "clearly established" for qualified immunity purposes. See Anderson, 483 U.S. at 640, 107 S.Ct. at 3039. "Clearly established" in this context includes not only already specifically adjudicated rights, but those manifestly included within more general applications of the core constitutional principle invoked.

  23. #23
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    Repeater wrote:
    Hawkflyer wrote:
    This ruling flies in the face of settled law. Shooting video of people in a public place is legal. While there may be an issue with recording audio, so long as the area being videoed is an area open to the general public, the camera may run.

    Appeal it now!


    Regards
    The judge, for whatever reason, avoided citing the case he should have cited, Pritchett v. Alford, 973 F.2d 307 (4th Cir. 1992).

    [SNIP]
    The fact that an exact right allegedly violated has not earlier been specifically recognized by any court does not prevent a determination that it was nevertheless "clearly established" for qualified immunity purposes. See Anderson, 483 U.S. at 640, 107 S.Ct. at 3039. "Clearly established" in this context includes not only already specifically adjudicated rights, but those manifestly included within more general applications of the core constitutional principle invoked.
    This web source, Photography Is Not A Crime -- It’s a First Amendment Right, seems to provide a wealth of material that Chet, Debbie, and their attorney could use for a rehearing or an appeal.

    Many photographers are being arrested without commiting any crime. The latest example involves Amtrak in Penn Station:
    Armed with his Canon 5D and his new Lensbaby lens, photographer Duane Kerzic set out to win Amtrak’s annual photo contest this week, hoping to win $1,000 in travel vouchers and have his photo published in Amtrak’s annual calendar.

    He ended up getting arrested by Amtrak police; handcuffed to a wall in a holding cell inside New York City’s Penn Station, accused of criminal trespass.

    Kerzic says he was hardly trespassing because he was taking photos from the train platform; the same one used by thousands of commuters everyday to step on and off the train.

    “The only reason they arrested me was because I refused to delete my images,” Kerzic said in a phone interview with Photography is Not a Crime on Friday.

    “They never asked me to leave, they never mentioned anything about trespassing until after I was handcuffed in the holding cell.”

    In fact, he said, the only thing they told him before handcuffing him was that “it was illegal to take photos of the trains.”
    Lew Rockwell has this to say:
    The open, peaceful, non-intrusive and public documentation of government activities makes them extremely nervous. Followers of this and other pro-liberty blogs know that every so often a photographer is attacked for the "crime" of taking photos of something sacred to the state such as a police officer or a building.

    Here's another example of what appears to be same deal: a photographer was arrested by Amtrak police for taking photos of an Amtrak train while on a photo assignment organized by...Amtrak!
    These abuses will continue until the courts finally decide enough is enough and stop it.



  24. #24
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    Repeater wrote:
    These abuses will continue until the people finally decide enough is enough and stop it.
    Fixed.
    Why open carry? Because 1911 > 911.

  25. #25
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    AbNo wrote:
    Repeater wrote:
    These abuses will continue until the people finally decide enough is enough and stop it.
    Fixed.
    Well, that works, too!

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