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U.S. Constitution
See other U.S. Constitution Articles

Title: Federal Court Rules Citizens Have No Right to Film Politicians & Police in Public
Source: Free Thought Project
URL Source: http://thefreethoughtproject.com/court-film-politicians-police/
Published: Aug 10, 2017
Author: Claire Bernish
Post Date: 2017-08-12 09:54:35 by Deckard
Keywords: None
Views: 163
Comments: 12

Contradicting the rulings of six others federal courts, the Eighth Circuit Court of Appeals annihilated free speech rights in upholding a district court decision stating citizens do not have the right to film public officials — politicians, police, and others — in public.

In affirming the decision of the lower court to dismiss, the Eighth Circuit effectively ended free speech activist Matthew Akins’ challenge to the Columbia, Missouri, Police Department, which he accuses of unlawfully stopping and arresting him on multiple occasions — though nearly all charges were later dropped — as he filmed their encounters with the public, in public.

Akins says the spate of arrests and harassment from law enforcement is brazen retaliation for the nature of his activist work — filming officers on the job.

As a journalist and founder of Citizens for Justice in 2011, a group committed to monitoring police for accountability purposes, Akins frequently stopped to record officers’ interactions with the general public — a tactic employed by a plethora of civilian impartial observation groups to stem an epidemic of police violence and veritable impunity in courts, so common to law enforcement officers who misbehave.

Judge Nanette Laughrey penned in the stunning decision Columbia Police officers indeed had probable cause to arrest Akins each time, and — again, contrary to previous rulings from six circuit courts —that “he has no constitutional right to videotape any public proceeding he wishes to.”

Attorney Stephen Wyse already filed an appeal on Wednesday for the court to rehear the case — originally filed against Boone County Prosecutor Dan Knight, two former Boone County assistant prosecuting attorneys, and several members of the Columbia Police Department — as he contended unequivocally, prior,

“You can’t target journalists because you don’t like their reporting.”

ABC affiliate KMIZ reports,

“Wyse took issue with Laughrey’s decision to stay on the case, despite his request she recuse herself. Laughrey’s husband, Chris Kelly, was the head of a city task force on infrastructure, which could have skewed her decisions in a case against the city, Wyse claimed. While federal law does call for a judge’s recusal, the appeals court said nothing in Akins’ case rose to the level of bias or prejudice against his case.”

While the topic of filming the police — of particular interest to law enforcement accountability activists, First Amendment advocates, and others concerned for decaying free speech rights — appeared in federal court before, Laughrey’s ruling goes against precedence established by the First, Third, Fifth, Seventh, Ninth, and Eleventh Circuits, which decided the Constitution guarantees the right to film public officials in public settings, as long as recording does not interfere.

In fact, Judge Thomas Ambro wrote the decision for the Third Circuit Court of Appeals in a similar case comprised of separate instances in which Philadelphia law enforcement actively thwarted the efforts of two citizens, Amanda Geraci and Richard Fields, to film arrests. Both sued for violations of their civil rights, and — like many other litigants — won.

“The First Amendment protects the public’s right of access to information about their officials’ public activities,” Ambro clarified, adding that access “is particularly important because it leads to citizen discourse” on public and private issues — an exalted exercise of that preeminent protection. The government, ruled the judge, is prohibited constitutionally from “limiting the stock of information from which members of the public may draw.”

American law enforcement, on the whole, has not responded hat graciously to civilians whipping out cell phones and video cameras to record encounters in public — though filming police can indeed provide additional pictorial and audio evidence in the event of contention or disputation.

“Bystander videos provide different perspectives than police and dashboard cameras, portraying circumstances and surroundings that police videos often do not capture,” Ambro continued. “Civilian video also fills the gaps created when police choose not to record video or withhold their footage from the public.”

Laughrey, however, broke ranks in a manner which could portend a precarious existence of certain First Amendment rights — rights which had previously been assumed by the public and averred in peer courts. States comprising the Eighth Circuit are Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota.

“The First Amendment is a core American value,” Wyse asserted in a press statement following the decision’s astonishing departure from precedent. “The right to free speech and a free press are central to our liberty and our ability to hold our government accountable. This holding of the 8th Circuit undermines the basic rights of Missourians and the citizens of the six other 8th Circuit states and undermines the First Amendment rights for all Americans.”

Reports indicate Akins — barring an unlikely rehearing in the Eighth Circuit Court — may indeed appeal his case to the Supreme Court. Because multiple federal judges have upheld the right to film police and public officials as a constitutionally-protected activity on multiple occasions, the ramifications of Laughrey’s ruling may not be as far-reaching and detrimental as appears now — but the ultimate litmus test seems inevitably poised for SCOTUS.

In the meantime, irascible law enforcement officers keen to prevent civilians from filming their activities would do well to remember two crucial points: recording public officials keeps them responsible and accountable for their actions — but can also protect them in situations of disputing claims. After all, raw video recordings — not police, officials, or citizens — have no need of mendacity and duplicity.

“We ask much of our police,” Ambro wrote in the July decision. “They can be our shelter from the storm. Yet officers are public officials carrying out public functions, and the First Amendment requires them to bear bystanders recording their actions. This is vital to promote the access that fosters free discussion of governmental actions, especially when that discussion benefits not only citizens but the officers themselves.”

Laughrey, unfortunately, did not agree — and now the public has yet another constitutionally-protected right left dangling by a fraying thread.

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#1. To: Deckard (#0)

recording public officials keeps them responsible and accountable for their actions

I don't see how, when 99% of the public recordings of police that I've seen start well after the initial encounter, and only after the police have reacted.

"but can also protect them in situations of disputing claims."

Which is the purpose of police body cams.

Civilians with cameras are not interested in recording the entire incident. Based on what I've seen, they're interested in provoking the police so they can become a YouTube sensation or win the legal lottery.

misterwhite  posted on  2017-08-12   11:38:58 ET  Reply   Trace   Private Reply  


#2. To: misterwhite (#1)

Which is the purpose of police body cams.

To protect police officers from liability and to protect them when someone actually pulls the trigger on them. Then, they not only have evidence of the shooter taking offense action against the officer but that the officer may use the evidence in court to prove that the defensive measure the officer did in taking down the assailant (if the officer survives the attack), was within the police guidelines and training, thus shielding that officer from personal liability.

And civilians with cameras are interested in recording the entire incident. What the civilian should be concerned about is where police officers purposely go after the civilian ( for the purpose of tampering with the evidence or getting rid of it) because they refuse to turn over the recorded evidence.

goldilucky  posted on  2017-08-12   20:02:39 ET  Reply   Trace   Private Reply  


#3. To: goldilucky (#2)

And civilians with cameras are interested in recording the entire incident.

I see very little evidence of that. What I see posted here and on YouTube are videos which begin with the police officer taking action. It's a biased representation which has led to marches, protests and riots -- not to mention legal suits. By the time the truth emerges, it's way too late.

Civilians think they work for Dateline, determined to capture a gotcha moment that put the police in a bad light.

misterwhite  posted on  2017-08-12   20:18:55 ET  Reply   Trace   Private Reply  


#4. To: Deckard, misterwhite (#0)

Contradicting the rulings of six others federal courts, the Eighth Circuit Court of Appeals annihilated free speech rights in upholding a district court decision stating citizens do not have the right to film public officials — politicians, police, and others — in public.

In affirming the decision of the lower court to dismiss, the Eighth Circuit effectively ended free speech activist Matthew Akins’ challenge to the Columbia, Missouri, Police Department, which he accuses of unlawfully stopping and arresting him on multiple occasions — though nearly all charges were later dropped — as he filmed their encounters with the public, in public.

Akins says the spate of arrests and harassment from law enforcement is brazen retaliation for the nature of his activist work — filming officers on the job.

As a journalist and founder of Citizens for Justice in 2011, a group committed to monitoring police for accountability purposes, Akins frequently stopped to record officers’ interactions with the general public — a tactic employed by a plethora of civilian impartial observation groups to stem an epidemic of police violence and veritable impunity in courts, so common to law enforcement officers who misbehave.

Judge Nanette Laughrey penned in the stunning decision Columbia Police officers indeed had probable cause to arrest Akins each time, and — again, contrary to previous rulings from six circuit courts —that “he has no constitutional right to videotape any public proceeding he wishes to.”

What a load of bullshit.

http://law.justia.com/cases/federal/appellate-courts/ca8/16-3555/16-3555-2017-07-25.html

Opinion at 2:

In 2015 Akins filed this lawsuit under 42 U.S.C. § 1983, alleging that his constitutional rights under the First, Second, Fourth, and Fourteenth Amendments had been violated by the defendants. Among other matters, Akins alleged that his rights had been violated by

(1) a stop at a sobriety checkpoint in May 2010 resulting in his being arrested and

(2) a stop for a traffic violation in June 2010 resulting in Akins being removed from his vehicle and handcuffed while his vehicle was searched.

Akins also alleged that the defendants violated his rights

by removing videos he had posted on the CPD Facebook page,

by ordering him to stop filming the filing of a citizen complaint in the CPD lobby, and

by posting in the police department a flyer with information about him.

Akins v. City of Columbia, No. 2:15-CV-04096-NKL (W.D. Mo. Aug. 2, 2016)

I. Background[1]

A. May 9, 2010 incident and Officer Hughes

1. The arrest

On May 9, 2010, Officer Hughes stopped Akins on a routine DWI checkpoint in Columbia. Akins was driving a 1997 Toyota Camry and Hughes did not know who Akins was at the time of the stop. When Hughes was speaking with Akins, he observed that Akins' eyes were bloodshot and his hands shook as he handed Hughes his documents. Hughes also smelled what he believed to be the smell of marijuana.[2] Hughes asked Akins to step out of the car. Akins began rolling up the window, at which point Hughes opened the door himself and asked Akins to step out, which Akins did. As Akins stepped out, Hughes saw Akins move his right hand close to his leg and quickly place an unknown item in his right pants pocket. Based on Akins' nervous demeanor and the quick motion, Hughes believed Akins could have placed a weapon in his pocket. To check Akins' pocket and retrieve the unknown item, Hughes moved aside a paper towel that was in Akins' pocket. Based on Hughes' training and experience, the paper towel was wrapping what to Hughes felt like marijuana stems, seeds, and leaves.

When Hughes patted Akins down, Hughes felt a gun near Akins' waist. The gun, a .380 Bersa, was in a holster attached to Akins' belt, covered by his shirt. Akins did not tell Hughes about the gun at any time before or after getting out of the car. Akins says Hughes' actions, from the time of opening the door to when he performed the pat down, did not provide reasonable time to tell Hughes about the gun. When Hughes felt the gun, Hughes pushed Akins off-balance and against the car, and yelled, "Gun!" Hughes asked Akins whether he had a concealed carry permit. Akins said he did not and that his attorney told him he did not need one to carry a gun in the car.

Hughes later wrote in the offense report that "[t]he gun was discovered to be loaded with 11 bullets in the magazine and 1 round in the chamber. The handgun was readily capable of immediate lethal use and was concealed under [Akins'] shirt, not visible to others." Doc. 91-3, p. 20 of 22 (Offense Report). Akins admits the gun contained bullets. But he says there was no bullet in the chamber when Hughes removed the gun from the holster. Akins says when Hughes drew the slide back to check on whether there was a round in the chamber, Hughes' action chambered the round. Doc. 91-1, p. 2.

Akins admits that a tissue removed from his pocket could possibly have contained "remnants of marijuana" or "marijuana byproducts." Doc. 82-1, p. 14 (Akins Depo., p. 56). Another officer searched Akins' car and located a plastic baggie under the driver seat, containing what the officer reported to be marijuana. Akins admits he had used marijuana at some time and that it was possible that what the officer found in his car was his marijuana. Id., p. 18 (Akins Depo., p. 71). Hughes arrested Akins for drug possession and unlawful use of a weapon.

2. Return of the gun

The Boone County prosecutor subsequently charged Akins with unlawful use of a weapon, a class D felony. Then on November 16, 2010, the prosecutor dismissed the charge, nolle prosequi "and possession of Matthew Akins Bersa 380 pistol was maintained by the Columbia Police Department pursuant to the recommendations of the Boone County Prosecutor's Office." Doc. 4, p. 8 of 40, ¶ 23 (Akins' Amended Complaint).

In February 2012, Akins' defense attorney emailed the assistant prosecutor who had handled the case, asking if Akins' gun could be returned to Akins. The assistant prosecutor responded that that should be alright and asked whether Akins had proof of ownership. No evidence in the record shows Akins' attorney responded to the question about proof of ownership, or that the prosecutor relayed the request to the City police department.

The City police department was performing a routine audit in October 2012 and according to the City, in the course of the audit it learned it still had Akins' gun.[3] At the time, Akins had a pending felony charge relating to an arrest for possession of a knife. The City sent Akins a letter one week later, informing Akins that the gun was available to be picked up by a third party, as Akins had a pending felony charge. The evidence custodian of the Columbia Police Department, Michelle Heater, also explained to Akins in a phone call on October 24, 2012 that a third party could pick it up. No third party came to get it.

In February 2013, Akins emailed Chief Burton and the Boone County prosecutor, requesting return of the gun. The Boone County Prosecuting Attorney's office notified Heater on March 20, 2013 that they no longer needed the gun. Akins was told on March 28, 2013 that he could pick it up any time.[4] He picked it up on Aril 15, 2013.

B. June 6, 2010 incident and Officer Schlude

On June 6, 2010, around 6:50 p.m., Akins made an illegal U-turn while driving and Officer Schlude stopped him. Akins admits the stop was lawful. Doc. 4, p. 8 of 40, ¶ 25. Akins had two passengers with him, including one in the back seat. Akins submitted the affidavit of one of his passengers, K. Jones, who said that after pulling Akins over, Schlude asked Akins whether there were any illegal drugs or weapons in the car. Doc. 91-7 (Jones Affidavit). Akins told Schlude there was a legal rifle on the rear floorboard.

Schlude does not have an independent recollection of the interaction with Akins. The dispatch system records reflected, and Schlude would have been advised at the time, that Akins had a type two indicator, meaning Akins was known to be armed and violent; and that Akins' passengers had type one indicators, meaning they were known to be violent. Akins also had a felony weapons charge at the time. According to dispatch records, Schlude told dispatch that there was a rifle in the car and requested backup. Schlude said that based on the facts in the dispatch record, he would have approached the situation with caution given that Akins was known to be armed and violent, the two individuals were known to be violent, and there was a rifle in the car.

Schlude ordered Akins and the two passengers out of the car. All three were handcuffed and searched by a second officer who arrived at the scene. Jones says this second officer was searching them for "dangerous objects[.]" Id. The three were directed to sit on the curb while Schlude searched the car. Akins did not consent to the search. Akins says Schlude moved some items out of the car during the search and the entire encounter lasted about 20-30 minutes.

Schlude issued Akins a citation for the illegal turn. Akins says he asked Schlude whether he had "done anything wrong" with the gun and what "the protocol" was for a situation like the one he had just found himself in. Doc. 91-1, p. 5 (Akins Affidavit). He says Schlude responded that it depended on the officer, i.e., some would see the gun in the car, pull their own gun and shoot him dead, then testify that they had feared for their life and the charge would be dismissed. Id.

- - - - - - - - - -

FootNotes

1. Unless otherwise noted, the facts recited are those which are properly supported and undisputed.

2. Hughes has been a Columbia police officer since 2005 and has had training. Akins disputes that Hughes could have detected the odor of marijuana. Akins states in an affidavit that he (Akins) had not "smoked or ingested marijuana" that day, he knows what marijuana smells like, and he did not smell marijuana in his car at the time of the stop, Doc. 104-1, suggesting Hughes is fabricating his statement that he believed he smelled marijuana. However, Akins admits in his reply suggestions to the City Defendants' motion for summary judgment that, "[w]eirdly," many things smell like marijuana, including various other plants, beer, Axe touch spray, body odor, and skunk. Doc. 110-3 (Exh. 59). Also, Akins admitted he possibly did have marijuana on his person or in his car at the time. Doc. 82-1, pp. 14 and 18 (Akins Depo. pp. 56 and 71). Finally, what appeared to be marijuana was found in Akins' car. On this record, no reasonable juror could find that Hughes was lying when he said he believed he smelled marijuana. Akins has not created a genuine dispute of material fact concerning Hughes' belief.

3. Akins states that a printout showing the history of the gun charge, produced by the City police department in discovery in this lawsuit, shows that the City police department knew by January 2011 that the charge had been dismissed. See Doc. 91-10 (Akins' Exhibit 12, p. 2). The printout does not say that, and the printout does not otherwise reflect, nor is there evidence in the record of, who had access to the printout, or how and by whom the information it contains was used.

4. The felony knife charge was amended in March 2013 to driving while revoked or suspended and failure to yield right-of-way.

- - - - - - - - - -

Akins also alleged that the defendants violated his rights by removing videos he had posted on the CPD Facebook page,

Akins v. City of Columbia, No. 2:15-CV-04096-NKL (W.D. Mo. Aug. 2, 2016)

7. The Columbia Police Department Facebook page

The Columbia Police Department has had a Facebook page since at least 2011. From 2011 to the spring of 2016, the page has always contained substantially the following statement:

The purpose of this page is to provide an opportunity for the Columbia Police Department to supply information to the public about department events, crime alerts, and other important information. We encourage you to submit comments, but please note that this is not a public forum. Comments posted to this page will be monitored. The Columbia Police Department reserves the right to remove inappropriate comments.

Doc. 108-3, Defs. Exh. G (Affidavit of Jill Schlude). Sometime after 2011, the Department added examples to the statement.

Akins states that he had posted several Citizens for Justice videos on the Police Department's website, but then in the summer of 2011 found that his videos were no longer there and he could no longer post anything. He said that in fact, he saw that all posts by others outside the Department had been removed, so he contacted the public information officer, Jill Schlude. Schlude told him the City did not have a formal social media policy, administrators had decided to work on one, and until a policy was in place, the Police Department would be posting its own content.

Schlude further explains that that approach was a City-wide one, not limited to the Police Department. Since the summer of 2011, no one can post original links to videos on the Police Department's Facebook page and no one can post comments that do not relate to the original post by the Police Department. In 2011-2012, comments to the page that were not related to the topic of the post under which they were made would have been considered inappropriate, and would have been removed. This is true for all users. Schlude has also reviewed the topics of postings from 2011-2012, and found none related to the subjects of Akins' Citizens for Justice videos. While memos concerning a social media policy have been prepared and circulated, the City has not adopted a social media policy.

- - - - - - - - - -

Akins also alleged that the defendants violated his rights ... by ordering him to stop filming the filing of a citizen complaint in the CPD lobby

Akins v. City of Columbia, No. 2:15-CV-04096-NKL (W.D. Mo. Aug. 2, 2016)

5. Filming in the Police Department lobby in 2011

The Columbia Police Department has a lobby that is open 24 hours a day. It contains a media book, a beat map, informational brochures, and a memorial to a slain Columbia police officer. The media book contains copies of incident reports from the prior night for interested media members. The beat map assists citizens in determining the beat they are in for purposes of filing police reports. Sometime in 2011, Akins was filming a person who was wearing a Ku Klux Klan hood and was in the lobby to pick up a complaint form. A Community Service Aide (CSA), who is not a defendant in this case, told Akins he could not film in the lobby and to turn off the camera, which Akins did.

Akins later followed up with a Police Department Public Information Officer, Jill Schlude. Schlude told Akins the CSA had been wrong when he said filming in the lobby was not allowed and told Akins to stop filming. Schlude also said the Police Department had had to follow up with the CSA so he would know what he told Akins was wrong. The CSA was not disciplined for asking the filming to stop.

- - - - - - - - - -

Akins also alleged that the defendants violated his rights ... by posting in the police department a flyer with information about him.

Akins v. City of Columbia, No. 2:15-CV-04096-NKL (W.D. Mo. Aug. 2, 2016)

E. The Akins poster and Citizens for Justice website

Prior to the creation of the Citizens for Justice website, Akins had at least nine contacts with the Columbia Police Department that had resulted in his arrest. He began construction of the website in June 2010 and the Columbia Police Department became aware of it in December 2010.[10] The website concerned law enforcement interactions with the public, including alleged police misconduct by the Columbia Police Department. Akins' systems administrator accidentally erased the website in the fall or winter of 2012. Doc. 82-1, p. 106 (Akins Depo. pp. 261-62). But Akins says Citizens for Justice still has active YouTube and Facebook pages. Doc. 104, p. 30, para. 141.

At some point in 2011, a poster concerning Akins was put up in the Police Department's briefing room, an area not generally open to the public. No evidence in the record shows who created or put up the poster. The poster had a photograph of Akins. It stated he drove a silver Pontiac Grand Prix and had arrests in the system for weapons violations, including carrying a pistol concealed on his person. It also stated Akins ran a website, and gave the website address (which was for Citizens for Justice). Doc. 82-21, Defs. Exh. 26 (poster). The Police Department does not have a policy concerning posters being displayed within the Department.

At the time the poster was up, Akins was approaching police offices at night while they were responding to calls and otherwise performing their duties, recording the officers' activities with a camera in night vision mode and that displayed an illuminated red dot when it was on. Doc. 82-29, Defs. Exh. 35 (Burton Affidavit); Doc. 82-1, pp. 31, 36, 39, 48, 110, 113, and 119 of 188 (Akins Depo., pp. 121, 143, 155, 190, 191, 278, 279, 291, and 315). Chief Burton opined that the poster promoted Akins' and officers' safety. At some point after Akins began filming police officers, Chief Burton or Jill Schlude advised the Police Department that Akins had the right to film. Doc. 82-29.

- - - - - - - - - -

Judge Nanette Laughrey penned in the stunning decision Columbia Police officers indeed had probable cause to arrest Akins each time, and — again, contrary to previous rulings from six circuit courts —that “he has no constitutional right to videotape any public proceeding he wishes to.”

Akins v. City of Columbia, No. 2:15-CV-04096-NKL (W.D. Mo. Aug. 2, 2016)

Akins also argues that he was retaliated against when he was stopped from filming a citizen in the Police Department lobby in 2011; his links to the Citizens for Justice page were removed from the Police Department's Facebook page in the summer of 2011; and he was excluded from a Police Department Media Training Day in October 2015. None of the individual Defendants participated in these incidents, and as discussed above, the City cannot be liable under § 1983 on a respondeat superior theory. Moreover, Akins points to no unconstitutional municipal policy or custom. Further, he has no constitutional right to videotape any public proceedings he wishes to. See Rice v. Kempker, 374 F.3d 675, 678 (8th Cir. 2004) ("[N]either the public nor the media has a First Amendment right to videotape, photograph, or make audio recordings of government proceedings that are by law open to the public."), and Wis. Interscholastic Ath. Ass'n v. Gannett Co., 658 F.3d 614, 627-628 (7th Cir. 2011) (same).

nolu chan  posted on  2017-08-12   21:44:29 ET  Reply   Trace   Private Reply  


#5. To: nolu chan, Deckard, misterwhite (#4) (Edited)

The Eighth Circuit has 18 judges total, including the 3 current vacancies. It is considered the most Republican court of appeals in the country with 13 of the current members being Republican appointees, with one 0bama appointee and one Clinton appointee. Hearing this case were two Minnesota-based judges and a Bush judge from Cedar Rapids.

The article makes it sound like the only place left to appeal is the USSC. But it seems that this was one of those 3-judge appeals panels, not the full 15 members. So the appeal would likely go to the full Eighth Circuit court of 15 members before it went on to the USSC.

BTW, those three vacancies on the Eighth? Trump has nominees now, nominated in May, June and August.

Tooconservative  posted on  2017-08-12   21:59:29 ET  Reply   Trace   Private Reply  


#6. To: Tooconservative, Deckard, misterwhite (#5)

The article makes it sound like the only place left to appeal is the USSC. But it seems that this was one of those 3-judge appeals panels, not the full 15 members. So the appeal would likely go to the full Eighth Circuit court of 15 members before it went on to the USSC.

https://www.scribd.com/document/355935027/Akins-appeal-of-District-Court-ruling

Petition for Rehearing en banc by the 8th Circuit court.

The District Court opinion is below. The case was tossed on a defense motion for summary judgment. It was summary judgment that was upheld by the 8th Circuit. I see no reason the full panel will overturn, or why SCOTUS would even grant cert.

This District Court addressed the issues point by point.

nolu chan  posted on  2017-08-13   1:58:00 ET  Reply   Trace   Private Reply  


#7. To: Deckard (#0)

https://www.theatlantic.com/politics/archive/2017/07/a-major-victory-for-the-right-to-record-police/533031/

goldilucky  posted on  2017-08-13   3:51:38 ET  Reply   Trace   Private Reply  


#8. To: nolu chan (#6)

Petition for Rehearing en banc by the 8th Circuit court.

It seems like this Akins was an angry hippie who sensed a payday.

I'm not seeing any wide application of the law here, just the court tossing out a harassment case by a litigious armed pothead.

Tooconservative  posted on  2017-08-13   8:18:57 ET  Reply   Trace   Private Reply  


#9. To: Tooconservative (#8)

I'm not seeing any wide application of the law here, just the court tossing out a harassment case by a litigious armed pothead.

Yes, the case was tossed pre-trial. There is a Free Thought Project screaming headline and no substance.

With regard to the screaming headline, "Federal Court Rules Citizens Have No Right to Film Politicians & Police in Public," note that he was told to stop filming by a Community Service Aide (CSA), not an employee of the city. The CSA was corrected when the police PIO learned about it. The unnamed CSA was not a named defendant. The responsible non-employee wasn't sued. The court noted that the city could not be held liable under respondeat superior.

Respondeat superior. Let the master answer. This doctrine or maxim means that a master is liable in certain cases for the wrongful acts of his servant, and a principal for those of his agent. Burger Chef Systems, Inc. v. Govro, C.A.Mo., 407 F.2d 921, 925. Under this doctrine master is responsible for want of care on servant's part toward those to whom master owes duty to use care, provided failure of servant to use such care occurred in course of his employment. Shell Petroleum Corporation v. Magnolia Pipe Line Co., Tex.Civ.App., 85 S.W.2d 829, 832. Under doctrine an employer is liable for injury to person or property of another proximately resulting from acts of employee done within scope of his employment in the employer's service. Mid-Continent Pipeline Co. v. Crauthers, Okl., 267 P.2d 568, 571. Doctrine applies only when relation of master and servant existed between defendant and wrongdoer at time of injury sued for, in respect to very transaction from which it arose. Hence, doctrine is inapplicable where injury occurs while employee is acting outside legitimate scope of authority. Rogers v. Town of Black Mountain, 224 N.C. 119, 29 S.E.2d 203, 205. But if deviation be only slight or incidental, employer may still be liable. Klotsch v. P. F. Collier & Son Corporation, 349 Mo. 40, 159 S.W.2d 589, 593, 595. See Scope of employment; Vicarious liability.

The CSA was not an employee, and he acted outside his scope of authority. The unnamed CSA did not have immunity, but he was not named as a defendant.

The article also rips out of context the accurate statement that "he has no constitutional right to videotape any public proceedings he wishes to."

Further, he has no constitutional right to videotape any public proceedings he wishes to. See Rice v. Kempker, 374 F.3d 675, 678 (8th Cir. 2004) ("[N]either the public nor the media has a First Amendment right to videotape, photograph, or make audio recordings of government proceedings that are by law open to the public.")

That state or local authorities granted permission to film in a certain location within a government building does not make it a right bestowed by the U.S. Constitution.

For those who doubt the accuracy of the statement, try finding the video of the latest U.S. Supreme Court arguments. Or the video of any such arguments in history. They are open to the public, albeit with limited seating.

https://en.wikipedia.org/wiki/Cameras_in_the_Supreme_Court_of_the_United_States

The Supreme Court of the United States does not allow cameras into the courtroom when the court is in session, which is the subject of much debate. Although the Court has never allowed cameras in its courtroom, it does make audiotapes of oral arguments and opinions available to the public.

There is no constitutional right to record all government proceedings that are by law open to the public. Just because someone may wish to record does not give them a constitutional right to do so. Absent some constitutional violation by the government or its employees, bringing the federal lawsuit has a bit of a problem.

At Docket entry 116 in the District Court, dated Aug. 1, 2016, is found.

ORDER entered by Judge Nanette Laughrey. The pretrial conference scheduled for 8/4/2016 is canceled and the jury trial setting of 8/15/2016 is stricken. Signed on 8/1/16 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 08/01/2016)

This whole thing is not an opinion on a case, but a pre-trial ruling on a motion for summary judgment. There has not been a trial. The only appealable issue is the ruling on the motion to grant summary judgment.

nolu chan  posted on  2017-08-13   16:56:49 ET  Reply   Trace   Private Reply  


#10. To: nolu chan (#9)

For those who doubt the accuracy of the statement, try finding the video of the latest U.S. Supreme Court arguments. Or the video of any such arguments in history. They are open to the public, albeit with limited seating.

Yet every so often, someone tries to get the USSC on camera. Never works.

Tooconservative  posted on  2017-08-13   21:47:26 ET  Reply   Trace   Private Reply  


#11. To: nolu chan (#9)

The court noted that the city could not be held liable under respondeat superior.

The court erred in that stating no liability under respondeat superior. This is a matter of custom and policy the city and their police departments hold to trump the First Amendment.

goldilucky  posted on  2017-08-15   13:28:13 ET  Reply   Trace   Private Reply  


#12. To: goldilucky (#11)

The court erred in that stating no liability under respondeat superior.

No, it did not, and the court was upheld without dissent.

The Complainant did not include the Community Service Aide (CSA), a non-sworn civilian, in the Complaint. The CSA did not act within the scope of authority or employment.

Any alleged complaint against the CSA had to be brought against the CSA who acted outside the scope of authority or employment. Such employee enjoys no limited immunity.

The District Court cited and ruled in accordance with United States Supreme Court precedent. Municipalities cannot be held liable under 42 U.S.C. § 1983.

Monell v Dept of Soc Servs, 436 US 658, 691 (1978)

On the other hand, the language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, we conclude that a municipality cannot be held liable solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.

nolu chan  posted on  2017-08-15   15:24:02 ET  Reply   Trace   Private Reply  


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