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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!

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.

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.

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.

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.

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?

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?

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

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?

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.

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!

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

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.

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.

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.

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?