First Amendment hypo re filming police at gas station

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ihadadream
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First Amendment hypo re filming police at gas station

Postby ihadadream » Wed Jun 28, 2017 10:28 pm

Hello. There is a line of cases generally proposing that you have a First Amendment right to audio and video record police activity in public. How would this emerging right apply to the following hypothetical in your opinion?

The police are detaining someone in the parking lot of a gas station for jaywalking. You pull up, park, and get out. You walk along a walkway toward the entrance of the store. Now you stop and start to record the interaction between the detainee and the police. Two officers approach you and tell you to stop filming and to get moving. You say that you have a right to film the police in public. They respond that you are on private property, so the alleged right doesn't apply. You hold your ground. You say that you have such a right because, even though the gas station is private, it is open to the public. That, in your assessment, makes it a public place within the meaning of the relevant First Amendment caselaw. They arrest you for trespassing, resisting without violence, disorderly conduct, and interfering with the police. The prosecutor charges via information. You move to dismiss each count on First Amendment grounds. You are in a mythical jurisdiction that generally applies federal law.

1. Would you prevail on this motion to dismiss?

2. Subsequently, you file a § 1983 action, alleging violations of the First Amendment and Fourth/Fourteenth (i.e., unlawful seizure). Would you prevail on the merits? Also, would you overcome qualified immunity?

Thanks!

Foghornleghorn
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Re: First Amendment hypo re filming police at gas station

Postby Foghornleghorn » Wed Jun 28, 2017 10:42 pm

Good luck on law review!

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rpupkin
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Re: First Amendment hypo re filming police at gas station

Postby rpupkin » Wed Jun 28, 2017 11:11 pm

It depends. Does the mythical jurisdiction follow Torchinsky v. Peterson?

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MarkinKansasCity
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Re: First Amendment hypo re filming police at gas station

Postby MarkinKansasCity » Thu Jun 29, 2017 12:40 am

You lose on everything because the cops took your phone, smashed it, and then beat the living fuck out of you for mouthing off. They also charge you with violently resisting arrest, which is why they tell the judge they beat the fuck out of you. Since they're cops, and you're a piece of shit criminal, everyone believes them instead of you. Congratulations on your shiny new criminal record. Have fun with your 300 hours of community service.

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MarkinKansasCity
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Re: First Amendment hypo re filming police at gas station

Postby MarkinKansasCity » Thu Jun 29, 2017 12:43 am

ihadadream wrote:Hello. There is a line of cases generally proposing that you have a First Amendment right to audio and video record police activity in public. How would this emerging right apply to the following hypothetical in your opinion?

The police are detaining someone in the parking lot of a gas station for jaywalking. You pull up, park, and get out. You walk along a walkway toward the entrance of the store. Now you stop and start to record the interaction between the detainee and the police. Two officers approach you and tell you to stop filming and to get moving. You say that you have a right to film the police in public. They respond that you are on private property, so the alleged right doesn't apply. You hold your ground. You say that you have such a right because, even though the gas station is private, it is open to the public. That, in your assessment, makes it a public place within the meaning of the relevant First Amendment caselaw. They arrest you for trespassing, resisting without violence, disorderly conduct, and interfering with the police. The prosecutor charges via information. You move to dismiss each count on First Amendment grounds. You are in a mythical jurisdiction that generally applies federal law.

1. Would you prevail on this motion to dismiss?

2. Subsequently, you file a § 1983 action, alleging violations of the First Amendment and Fourth/Fourteenth (i.e., unlawful seizure). Would you prevail on the merits? Also, would you overcome qualified immunity?

Thanks!


Also probably don't try to cheat at law school. C&F committees tend to frown on that.

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Tortious Conduct
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Re: First Amendment hypo re filming police at gas station

Postby Tortious Conduct » Thu Jun 29, 2017 12:29 pm

MarkinKansasCity wrote:You lose on everything because the cops took your phone, smashed it, and then beat the living fuck out of you for mouthing off. They also charge you with violently resisting arrest, which is why they tell the judge they beat the fuck out of you. Since they're cops, and you're a piece of shit criminal, everyone believes them instead of you. Congratulations on your shiny new criminal record. Have fun with your 300 hours of community service.


Did I miss something or are you just a dick all the time?

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A. Nony Mouse
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Re: First Amendment hypo re filming police at gas station

Postby A. Nony Mouse » Thu Jun 29, 2017 12:37 pm

No, no, this is actually his opinion of the police.

And also the OP shouldn't try to get help with his homework/law review/exam question.

ihadadream
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Re: First Amendment hypo re filming police at gas station

Postby ihadadream » Fri Jun 30, 2017 12:44 am

I am not a law student; I'm an attorney. I graduated law school in 2011. I am looking for an answer to my hypo, which is based on a real-life incident. I posted the question here because it seemed like the most appropriate forum on this site.

The mythical jurisdiction broadly applies federal law. I just want to know what you think the outcome would be given your best objective assessment of the state of First Amendment and other relevant law.

Thanks again.

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rpupkin
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Re: First Amendment hypo re filming police at gas station

Postby rpupkin » Fri Jun 30, 2017 1:36 am

ihadadream wrote:The mythical jurisdiction broadly applies federal law. I just want to know what you think the outcome would be given your best objective assessment of the state of First Amendment and other relevant law.

Ok. The trespassing charge will likely be dismissed because trespassing on a private gas station owner's property is not a federal crime.

Please pm me your address so I can send you a bill for my services. Thanks.

cavalier1138
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Re: First Amendment hypo re filming police at gas station

Postby cavalier1138 » Fri Jun 30, 2017 5:22 am

ihadadream wrote:I am not a law student; I'm an attorney. I graduated law school in 2011. I am looking for an answer to my hypo, which is based on a real-life incident. I posted the question here because it seemed like the most appropriate forum on this site.

The mythical jurisdiction broadly applies federal law. I just want to know what you think the outcome would be given your best objective assessment of the state of First Amendment and other relevant law.

Thanks again.


This is depressing.

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stego
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Re: First Amendment hypo re filming police at gas station

Postby stego » Fri Jun 30, 2017 7:39 am

ihadadream wrote:I am not a law student; I'm an attorney. I graduated law school in 2011. I am looking for an answer to my hypo, which is based on a real-life incident. I posted the question here because it seemed like the most appropriate forum on this site.

The mythical jurisdiction broadly applies federal law. I just want to know what you think the outcome would be given your best objective assessment of the state of First Amendment and other relevant law.

Thanks again.

If you've gone throughput law school and are a practicing attorney (for 6 years?), shouldn't you already know how to look up the answer to this question yourself?

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rpupkin
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Re: First Amendment hypo re filming police at gas station

Postby rpupkin » Sun Jul 02, 2017 7:56 pm

stego wrote:
ihadadream wrote:I am not a law student; I'm an attorney. I graduated law school in 2011. I am looking for an answer to my hypo, which is based on a real-life incident. I posted the question here because it seemed like the most appropriate forum on this site.

The mythical jurisdiction broadly applies federal law. I just want to know what you think the outcome would be given your best objective assessment of the state of First Amendment and other relevant law.

Thanks again.

If you've gone throughput law school and are a practicing attorney (for 6 years?), shouldn't you already know how to look up the answer to this question yourself?

In slight defense of the OP, there's nothing wrong with asking others about an area of law that you know little about. If I'm working on a case and have to deal with an area of law I've never encountered before, I'll probably start by seeking help from others who might have specialized knowledge. It would waste my client's time to start from scratch. That said, I can't say that my requests for help have ever taken the form of a law-exam question. I usually just ask for someone to point me in the right direction; I don't ask anyone to answer the question for me.

ihadadream
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Re: First Amendment hypo re filming police at gas station

Postby ihadadream » Tue Jul 18, 2017 12:41 am

stego wrote:
ihadadream wrote:I am not a law student; I'm an attorney. I graduated law school in 2011. I am looking for an answer to my hypo, which is based on a real-life incident. I posted the question here because it seemed like the most appropriate forum on this site.

The mythical jurisdiction broadly applies federal law. I just want to know what you think the outcome would be given your best objective assessment of the state of First Amendment and other relevant law.

Thanks again.

If you've gone throughput law school and are a practicing attorney (for 6 years?), shouldn't you already know how to look up the answer to this question yourself?


Why would you even ask such an asinine question? You don't think your law professors ever learn anything from their students?

ihadadream
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Re: First Amendment hypo re filming police at gas station

Postby ihadadream » Tue Jul 18, 2017 12:54 am

You guys are issue spotting. You have overcomplicated a relatively straightforward question. I specified federal law because of the First Amendment issues the hypothetical raises. Fine. State law applies, but the standard for deciding whether the First Amendment has been violated is the same as federal law.

This scenario does not relate to a case that I'm working on. I didn't take First Amendment and this a developing area of the law. This is not a legal research question. I just want your thoughts.

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rpupkin
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Re: First Amendment hypo re filming police at gas station

Postby rpupkin » Tue Jul 18, 2017 2:27 am

ihadadream wrote:You guys are issue spotting. You have overcomplicated a relatively straightforward question.

If it's a straightforward question, why don't you just answer it yourself?

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stego
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Re: First Amendment hypo re filming police at gas station

Postby stego » Tue Jul 18, 2017 2:44 am

rpupkin wrote:
ihadadream wrote:You guys are issue spotting. You have overcomplicated a relatively straightforward question.

If it's a straightforward question, why don't you just answer it yourself?

That was sort of my question, but I guess it was "asinine."

cavalier1138
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Re: First Amendment hypo re filming police at gas station

Postby cavalier1138 » Tue Jul 18, 2017 5:35 am

ihadadream wrote:This scenario does not relate to a case that I'm working on. I didn't take First Amendment and this a developing area of the law. This is not a legal research question. I just want your thoughts.


Are you billing this time?

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encore1101
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Re: First Amendment hypo re filming police at gas station

Postby encore1101 » Tue Jul 18, 2017 9:51 am

ihadadream wrote:Hello. There is a line of cases generally proposing that you have a First Amendment right to audio and video record police activity in public. How would this emerging right apply to the following hypothetical in your opinion?

The police are detaining someone in the parking lot of a gas station for jaywalking. You pull up, park, and get out. You walk along a walkway toward the entrance of the store. Now you stop and start to record the interaction between the detainee and the police. Two officers approach you and tell you to stop filming and to get moving. You say that you have a right to film the police in public. They respond that you are on private property, so the alleged right doesn't apply. You hold your ground. You say that you have such a right because, even though the gas station is private, it is open to the public. That, in your assessment, makes it a public place within the meaning of the relevant First Amendment caselaw. They arrest you for trespassing, resisting without violence, disorderly conduct, and interfering with the police. The prosecutor charges via information. You move to dismiss each count on First Amendment grounds. You are in a mythical jurisdiction that generally applies federal law.

1. Would you prevail on this motion to dismiss?

2. Subsequently, you file a § 1983 action, alleging violations of the First Amendment and Fourth/Fourteenth (i.e., unlawful seizure). Would you prevail on the merits? Also, would you overcome qualified immunity?

Thanks!


https://www.theatlantic.com/politics/ar ... ce/533031/

The First, Fifth, Seventh, Ninth, and Eleventh Circuits have also issued similar rulings, starting in 2011, to protect bystanders who record police actions.


Based on this article, the question turns on whether you're in a public place. I'm not going to research it, but I'm going to venture to say that a gas station is a public place, even if privately owned.

if you argued solely 1A in your motion to dismiss, i'd say you probably would not win at this stage of the proceedings. the 1a doesn't give you the right to trespass, for example. and depending on how much details the hypothetical jurisdiction requires in the information and how the information is worded, someone may be able to draw an inference that your actions interfered with the police conduct. even if you have a right to film the police, that right doesn't extend into interfering with police activity.
i've seen some states where the factual allegations only need to parrot the elements of the crime "such actions interfered with lawful police conduct," for example. other states require you to state how police conduct was interfered, or what you did that could lead to a reasonable inference that police conduct was interfered



(a better argument for the trespassing and discon charges would be facial/legal insufficiency, but i digest)

and no, you'd probably not overcome qualified immunity.

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grand inquisitor
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Re: First Amendment hypo re filming police at gas station

Postby grand inquisitor » Tue Jul 18, 2017 10:25 am

encore1101 wrote:(a better argument for the trespassing and discon charges would be facial/legal insufficiency, but i digest)

and no, you'd probably not overcome qualified immunity.

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encore1101
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Re: First Amendment hypo re filming police at gas station

Postby encore1101 » Tue Jul 18, 2017 11:04 am

grand inquisitor wrote:
encore1101 wrote:(a better argument for the trespassing and discon charges would be facial/legal insufficiency, but i digest)

and no, you'd probably not overcome qualified immunity.



Image

ihadadream
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Re: First Amendment hypo re filming police at gas station

Postby ihadadream » Sat Jul 22, 2017 6:04 pm

encore1101 wrote:
ihadadream wrote:Hello. There is a line of cases generally proposing that you have a First Amendment right to audio and video record police activity in public. How would this emerging right apply to the following hypothetical in your opinion?

The police are detaining someone in the parking lot of a gas station for jaywalking. You pull up, park, and get out. You walk along a walkway toward the entrance of the store. Now you stop and start to record the interaction between the detainee and the police. Two officers approach you and tell you to stop filming and to get moving. You say that you have a right to film the police in public. They respond that you are on private property, so the alleged right doesn't apply. You hold your ground. You say that you have such a right because, even though the gas station is private, it is open to the public. That, in your assessment, makes it a public place within the meaning of the relevant First Amendment caselaw. They arrest you for trespassing, resisting without violence, disorderly conduct, and interfering with the police. The prosecutor charges via information. You move to dismiss each count on First Amendment grounds. You are in a mythical jurisdiction that generally applies federal law.

1. Would you prevail on this motion to dismiss?

2. Subsequently, you file a § 1983 action, alleging violations of the First Amendment and Fourth/Fourteenth (i.e., unlawful seizure). Would you prevail on the merits? Also, would you overcome qualified immunity?

Thanks!


https://www.theatlantic.com/politics/ar ... ce/533031/

The First, Fifth, Seventh, Ninth, and Eleventh Circuits have also issued similar rulings, starting in 2011, to protect bystanders who record police actions.


Based on this article, the question turns on whether you're in a public place. I'm not going to research it, but I'm going to venture to say that a gas station is a public place, even if privately owned.

if you argued solely 1A in your motion to dismiss, i'd say you probably would not win at this stage of the proceedings. the 1a doesn't give you the right to trespass, for example. and depending on how much details the hypothetical jurisdiction requires in the information and how the information is worded, someone may be able to draw an inference that your actions interfered with the police conduct. even if you have a right to film the police, that right doesn't extend into interfering with police activity.
i've seen some states where the factual allegations only need to parrot the elements of the crime "such actions interfered with lawful police conduct," for example. other states require you to state how police conduct was interfered, or what you did that could lead to a reasonable inference that police conduct was interfered



(a better argument for the trespassing and discon charges would be facial/legal insufficiency, but i digest)

and no, you'd probably not overcome qualified immunity.


Thanks for the information.

ihadadream
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Re: First Amendment hypo re filming police at gas station

Postby ihadadream » Sat Jul 22, 2017 6:04 pm

cavalier1138 wrote:
ihadadream wrote:This scenario does not relate to a case that I'm working on. I didn't take First Amendment and this a developing area of the law. This is not a legal research question. I just want your thoughts.


Are you billing this time?


No. And, for what it's worth, I work for the government and don't bill.




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