Szymecki v. Deputy Houck

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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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.

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I dare say this ruling is more than "pretty questionable", it is patently wrong. :banghead:

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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.

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I dare say this ruling is more than "pretty questionable", it is patently wrong. :banghead:

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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.

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I dare say this ruling is more than "pretty questionable", it is patently wrong. :banghead:

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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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Can someone copy and paste the text from that attachment? I'm not at home, and I can not open that .pdf file.

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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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the ‘contours of the right’ must have been so conclusively drawn as to leave no doubt that the challenged action was unconstitutional.”

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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.

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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).

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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!!!

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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!!!

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Great point, Planter.

Thanks for the analysis, Mike!

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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.

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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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