Buehler v. City of Austin, A-13-CV-1100-ML, 2015 U.S. Dist. Lexis 20878 (W.D. Tex. Feb. 20, 2015), was recently decided, and subsequently reported by PhotographyIsNotACrime.com (PINAC). The decision has some good stuff in it, and some that isn’t so good. The PINAC article was written by Andrew Meyer, who has a J.D. degree from Florida International, although I don’t know if he’s been admitted to the bar yet. In any event, I was very surprised to see the errors I was seeing in the article.
First, it was not heard in a state court, which the headline infers it was. It was decided in federal court. Second, the case is not heading to the U.S. Supreme Court, at least not yet. It will go to the Fifth Circuit Court first, which will likely affirm the trial court’s decision. Then, if the Fifth Circuit does affirm, Buehler will have to request that SCOTUS grant cert., or agree to hear the case. That, even with the minor split, is a long shot.*
Second, nothing in the decision was legally controversial. The Fifth Circuit has a different way of viewing probable cause and grand juries than the other circuits. It’s not that controversial, it just indicates a circuit split. It’s also not a “legal technicality.”
Third, and this is the one that is most surprising, is that the federal judge said in his order that filming the police was a clearly established right. Id., at *21-22. This had not (at least to my knowledge) been stated in the Fifth Circuit yet, although it was clearly established in most of the other circuits. That issue wasn’t addressed at all in the article.
This article is pure activism, and nowhere close to neutral and unbiased journalism. It’s one of the reasons that I left PINAC–I love Carlos Miller and what he has and for the most part, continues to do. It’s needed and he has done an outstanding job, but he needs to exert some editorial control over his staff if he wants PINAC to be respected for its journalism. If he wants to go the activist route, that’s fine too, but that needs to be out in the open, not hidden.
Finally, although I would like Buehler to succeed, I’m not real keen on his methods. He’s too confrontational, and yelling at the officers while filming is asking for trouble. Jeff Grey has as much success (or more) as Buehler and does not unnecessarily agitate the officers.
*SCOTUS receives about 10,000 requests for cert. a year and only grants about 75-80 (or 0.8%). I’m sorry, but less than a one percent shot at SCOTUS does not meet my definition of “is likely headed to the U.S. Supreme Court” by any stretch of the imagination.