Texas Rep. Jason Villalba (Dist. 114-R) introduces the Kory Watkins Bill

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OK, so it isn’t actually named after Kory, but it might as well be.  Second-term state representative Jason Villalba has introduced Texas House Bill 2918 to basically take away the public’s right to film the police.  The bill would criminalize filming within 25 feet of a police officer unless you were part of the “media,” and if armed, one could be no closer than 100 feet.

This is basically a reaction to the confrontational style of Kory, who has a tendency to get very close to the officers while being loud and armed with either a rifle or a black powder revolver.  So Villalba decided that a new law was needed, despite the fact that there is already a perfectly valid law on the book that deals with the issue.  When questioned on that, Villalba said that many times officers are too busy to tell those filming to step back or to put up yellow crime scene tape.

Uh, Jason?  If they are too busy to tell someone to move back, wouldn’t they be too busy to make an additional arrest?  Because the purpose of the law is to criminalize the gathering of information that can be used to exercise the right to free speech.  The fact that a law is on the books doesn’t magically make people move back, nor does it encourage the police to welcome citizen photographers.  On the contrary, it encourages police officers to suppress free speech.

Villalba practices high-dollar law for a big box law firm, Haynes and Boone, where he is a partner.  The base salary for first year associates is reported to be $160,000 per year, a partner will make much more than that, so it is fair to say that Villalba is not your average Texan.  He’s also arrogant, telling opponents of his censorship bill that he will “destroy” them on Facebook (since deleted) and to vote him “out of office” on Twiter (also since deleted).

This isn’t Villalba’s first incursion into the territory of the First Amendment.  In December, he called for a state constitutional amendment that would protect anti-homosexual bigots from government action.  Only after pretty much everyone objected to it, including most business leaders.

Like many of the efforts of wealthy legislators, this current bill is designed to protect the status quo, not to benefit the public.  Besides that, it is blatantly unconstitutional, creating a special class of citizens who have First Amendment rights while denying it to others.

Los Angeles Police Decide that Aerial Photos Violate Privacy…

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But only if it is their privacy, not yours.

Daniel Saulmon (Tom Zebra) was filming again, using his drone, at the LAPD Hollywood station.  The police didn’t like it.

What is hilarious is that the same expectation of privacy that they are claiming is the expectation that they state you, as a private citizen, do not have.

At 4:04 the first officer tried to tell Daniel that he could not fly his drone over police department property.  But these same officers want to be able to fly over other peoples’ property, observe what is below, and obtain search warrants based on those overflights.  That’s legal, according to the U.S. Supreme Court, see California v. Ciraolo, 476 U.S. 207 (1986) (mere fact that individual has taken measures to restrict some views of his activities does not preclude police officer’s observations from public vantage point where he has right to be and which renders activities clearly visible).

Later in the video, the sergeant tries to tell Daniel that he will be charged with trespass, even if he keeps the drone over the sidewalk.  Ludicrous.

In other words, what the police in LA want is to be able to look in your backyard, but where you can not look into theirs.

 

Carson City & Lyon County Sheriffs, Unlawfully Detain Photographer

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In these two videos, you see Aaron Friesen being contacted twice by a deputy from the Carson City Sheriff’s office and by a deputy (Dep. Willy) from the Lyon County Sheriff’s office.  In the first contact, Friesen is contacted and asked why he is recording deputies coming in and out of the gate by Willy.  Friesen asks if he is free to go and Willy says yes, so Friesen walks down the street.

A few minutes later (2d video), the deputies recontact him.  This time the deputy tells him he’s being detained and to put his iPad down.  The deputy then tells Friesen that he cannot record law enforcement officers and the license plate numbers of their vehicles, that it is a violation of law.  Friesen immediately asks where in the Nevada Revised Statutes (N.R.S.) that it is a violation and the deputy asks if he wants him to call the sheriff over to explain it to him.  Friesen replies that he does want it explained to him.  The deputy then says that they can make this real easy or that they can make it real hard – which doesn’t cause Friesen to back down at all.  The deputies do conduct a Terry frisk, a pat-down of the outer garments for weapons.  See Terry v. Ohio, 392 U.S. 1 (1967).  The deputy justifies the pat-down by saying that he doesn’t know him and he’s filming deputies.  Once a supervisor shows up, he basically says that there is nothing the officers can do about Friesen’s filming.

Let’s review what happened and why it happened.

  • The deputies did not like being filmed, especially when the video was capturing their personal vehicles license plate numbers.  There is a valid concern here for officers, they do not want to bring any consequences of the job home to their families.  This is a reason that officer’s addresses are not normally subject to public information requests, etc.  When Friesen was first contacted, the deputies felt that he would be intimidated enough to leave.
  • Once he didn’t completely leave, they became irritated (how dare he not respect our authority) so they contacted him again.  Look at the initial response on the second contact, how the officer is acting.
  • The officer did not know the law.  He felt that filming police was wrong, so it must be against the law.  This is not uncommon among officers–look at the reaction when the supervisor indicated you can’t really do anything about it.  The one deputy asks, almost incredulously, if the supervisor was “OK” with Friesen filming.
  • The “I don’t know you” mantra has taken hold in the police world, and officers do not realize that this is not a valid reason for a pat-down search.  Examples of this abound.  The law student in Portland, Maine example.  Whitehall, Pennsylvania.  Several courts have ruled on this issue also, see United States v. Black, 707 F.3d 531 (4th Cir. 2013) (Being a felon in possession of a firearm is not the default status).
  • Officer safety.  Officers believe that they can justify almost anything under officer safety, which is understandable, that is what police academies and defensive tactics instructors teach them.  They don’t realize that officer safety measures must be related to the detention in the first place, see United States v. King, 990 F.2d 1552 (10th Cir. 1993) (Officer’s conduct was not “reasonably related in scope to the circumstances which justified the interference in the first place,” and went far beyond what was necessary to protect her safety).
  • Finally, officers are taught to believe that they know more about criminal law than anyone else.  For example, in one training session I went through, the instructor flatly stated that police officers received more classroom instruction in criminal law than lawyers did, basing it on the fact that most law students take a class in Criminal Law and maybe a class in Criminal Procedure.  Since I’m now in law school, I realize how idiotic this view is since lawyers don’t learn the law in the same way that police officers do.  Officers learn what the exact statutes are, lawyers learn the principles behind it, how to research it, case or common law, procedures, etc.  The problem is that an officer will read the text and decide on his own what it means, while a lawyer will double-check case law to make sure.  This means the officer will often try to stretch things to cover acts that are not criminal, or seek to apply a law that has be ruled unconstitutional (because it is still on the books, it must be OK).

This isn’t the only example of this in Carson City.

 

What an Out-of-Control Police Dept. Looks Like: Middletown, CT

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Middletown, CT is a typical New England town of about 47,000, located about halfway between New Haven and Hartford on the Connecticut River.  It is also the headquarters for the Connecticut State Police, although I’m not sure that this is a good thing, based on what we’ll discuss here today.

My attention was drawn to Middletown by Carlos Miller of Photography Is Not A Crime.

In 2010, Efrain Carrion died while in police custody, after his family had called 911 to get him help.  Carrion was arrested and handcuffed with his hands behind his back.  He then “assaulted” the officers to the point that they felt it was necessary to tase him 34 times.  While handcuffed.  This is before Carrion “fell” down the stairs.  While handcuffed.  The State Police spokesman talked on the news about how violent Carrion was and the danger he posed to officers, that he was choking the police dog.  While handcuffed. Cause of death was “excited delirium” which is normally associated with drug use.  Carrion died at the scene and the family has sued.

That incident of course has made the police re-evaluate their use of tasers.  Or not, considering they recently tased a seventh graderReally?  Even after police had been removed from the schools for their use of tasers against a 17-year-old in 2010?  Really?  The community and school is upset you tase a 17-year-old, so you come back and tase 12- or 13-year-old?  But that’s OK, because the student was “combative” according to a police spokesman.  A 12-year-old.  Really?

Last year the Acting Police Chief, Patrick McMahon, was demoted by the mayor, who said in regards to an incident the chief was involved it, “that while his description of the particular incident may have been technically accurate, there were a lot of other facts that should have been related to me and were not.”  McMahon was subsequently fired for drinking alcohol in uniform on at least five occasions, according to news reports.  You know, an out-of-control chief creates an out-of-control department.

The police department also does not like cameras.  Several years ago, they seized a cellphone camera because it may have “evidence” on it to support a loitering ticket.  This was covered on PINAC.  The cited individual was found not guilty in January 2013.  It’s actually kind of funny–the officer involved, Sebastian Bartolotta, had himself taped recorded an altercation with the Middleton Police in 2007 to protect himself from unfounded allegations by his superiors.  I guess he didn’t want it to be done to him.  Oops.

And they don’t like you filming their station, either, also on PINAC.  This is the one where the officer claims that “suspicion” is a crime.

The city has plenty of notice of the problem.

  • A lawsuit by Carrion’s estate.
  • A lawsuit by an individual for injuries suffered in jail, when they sent a K-9 into his cell.
  • A lawsuit by an individual shot in the arm in 2011.
  • A lawsuit by the mother of the 17-year old that was tasered in 2010.
  • The city settled a case from 2010.
  • A lawsuit from 2010 where the officers performed a body cavity search on the side of the road.
  • A lawsuit from 2008 alleging false arrest and search, dismissed on a technicality in 2009 (involving Bartolotta & Richard Siena).
  • A lawsuit from 2008 alleging illegal search and excessive force.
  • A complaint that a sergeant was viewing pornography on duty, Siena initially lied, then admitted it.  Three months later he was promoted to lieutenant.
  • A lawsuit from 2005 alleging excessive force where the suspect was beaten without warning.
  • A lawsuit from 2003 alleging assault and battery by officers.
  • A police officer and a lieutenant fighting in the police station (no charges were filed) in 2002.
  • A lawsuit from 2002, where officers threw a flash-bang grenade on top of two non-suspects while executing a warrant.

The First Amendment and Private Property

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Several posts at Photography Is Not A Crime have started interesting discussions over the conflicting desires of photographers and property owners.

In a post on a security guard trying to stop photography on what is purportedly privately owned mall property, some commentators make the argument that malls, shopping centers, and parking lots which are open to the public become a de facto public forum, subject to unlimited First Amendment Rights.  That is not correct.  In Lloyd Corp., Ltd. v. Tanner, the Supreme Court explained:

In addressing this issue, it must be remembered that the First and Fourteenth Amendments safeguard the rights of free speech and assembly by limitations on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only. The Due Process Clauses of the Fifth and Fourteenth Amendments are also relevant to this case. They provide that ‘[n]o person shall . . . be deprived of life, liberty, or property, without due process of law.’ There is the further proscription in the Fifth Amendment against the taking of ‘private property . . . for public use, without just compensation.’

Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551, 567 (1972)(emphasis added, edits in original).

This was not an isolated decision.  See also Hudgens v. N.L.R.B., 424 U.S. 507 (1976) (Picketing not allowed on private property under First Amendment.); Cent. Hardware Co. v. N.L.R.B., 407 U.S. 539 (1972) (The First and Fourteenth Amendments are limitations on state action, not on action by the owner of private property used only for private purposes. The fact that private parking lots are open to the public do not make them a public forum.); Wright v. Incline Village General Improvement Dist., 665 F.3d 1128 (9th Cir. 2011) (General public does not have a right to use private property for First Amendment expression, to do so can violate the First Amendment rights of the property owner.).  Utah Gospel Mission v. Salt Lake City Corp., 425 F.3d 1249 (10th Cir. 2005) (Property does not become a public forum simply because a private owner generally opens his property to the public.); Strahan v. Frazier, 62 Fed. Appx. 359 (1st Cir. 2003) (The First Amendment does not prevent a property owner from restricting the exercise of free speech on private property, including a private shopping mall).

There are some exceptions to the general rule, for example a state constitution or statute may grant individuals greater rights than is covered by the First Amendment.  See PruneYard Shopping Ctr. v. Robbins, 447 U.S. 47 (1980) (First Amendment does not authorize free speech rights on private property over the property owner’s objection, but does not prevent a state from granting greater rights, such as the right to circulate petitions on property that is open to the general public).

 

Mass. Police (and Citizens) Have Lost Their Mind

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I am firmly convinced that Massachusetts has lost its collective mind.

An 18-year-old high school student who is known for posting “rap” videos to YouTube and Facebook has been arrested based on the lyrics in his latest video.  Cameron D’Ambrosio has been charged with “Communicating Terrorist Threats” (in reality, under the Bomb Threat statute) and faces up to 20 years in prison.

News articles are here, here, and here.

The problem I see is first, he did not say where the bomb was going to be.  That’s one of the elements of the offense.  The second is that the police keep talking about his video causing fear and people to be upset, but that’s not one of the elements unless there is a specific threat to hijack a plane, boat, or common carrier.

Since when did music (abet crappy music) become a criminal offense?  Haven’t we gone through this already, when Florida police tried to shut down a 2 Live Crew album?

There’s a little problem here.  It’s called the First Amendment.  See Luke Records v. Navarro, 960 F.2d 134 (11th Cir. 1992).  You can’t arrest someone for tasteless lyrics that don’t make a very specific, clearly identifiable threat.

 

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