While it appears that there is a general, amorphous right to film police, a decision by Judge Kevin Castel, SDNY, Higginbotham v. City of New York, both focuses and fuzzies the right at the same time.  The cases involved Douglas Higginbotham, a free-lance video-journalist, working for TV New Zealand covering Occupy Wall Street. And New York’s Finest treated him like anyone else.

While he was filming “an arrest that resulted in a significant injury to the person being arrested,” he was ordered to climb down from the telephone booth by the defendant police captain, but could not immediately comply because there were too many people surrounding the booth. Eventually, he began to climb down, and when he did so, the three individual [police officer] defendants pulled his legs out from under him, causing him to drop his camera and fall onto the ground.

He was cuffed (plastic) for three hours, held until issued a summons for disorderly conduct, which was subsequently dismissed.  And he sued.  In a decision denying summary judgment, the court rejected the defendants’ claim of qualified immunity by holding:

The Court concludes, however, that the right to record police activity in public, at least in the case of a journalist who is otherwise unconnected to the events recorded, was in fact “clearly established” at the time of the events alleged in the complaint. When neither the Supreme Court nor the Second Circuit has decided an issue, a court “may nonetheless treat the law as clearly established if decisions from . . . other circuits ‘clearly foreshadow a particular ruling on the issue.’”

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Chicago police wanted 33-year-old Angel Perez to be a snitch, and brought him to their place at Homan Square for some persuasion, according to Spencer Ackerman in the Guardian.

It was 21 October 2012. The day before, Perez had been driving his Rav-4 on his restaurant delivery route when he says police accosted him, wanting him to contact a drug dealer who they believed Perez knew so they could arrange a sting. But Perez was less cooperative than they had hoped.

Not everyone has a burning desire to be a snitch, especially when they aren’t involved in drug dealing at all.  But, as judges repeat so often, snitching is an “important law enforcement tool,” and so the police don’t always take no as an answer.

Now, Perez was handcuffed by his right wrist to a metal bar behind a bench in an interrogation room on the second floor of Homan Square. Behind him were two police officers that a lawsuit Perez recently re-filed identifies as Jorge Lopez and Edmund Zablocki. They had been threatening him with a stint at the infamously violent Cook County jail if he didn’t cooperate.
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The first thing I received was an email, with the subject line “Media Inquiry.” That’s the standard line when a reporter needs a quote for a story and wants to speak with you. It was on a very obscure detail, about which I had written, so I responded “sure, give me a call at my office tomorrow.”  He did, at about 6:30 p.m.  Office hours no longer mean what they used to mean.  I was gone.

But the next day, we finally hooked up, and his first question was, “tell me about yourself.” Another lonely reporter?

“I’m a criminal defense lawyer. That’s kinda why you emailed me in the first place, right?”

“No,” he explained. “Give me your elevator pitch.” I told him, “Sorry, but I don’t sell laundry detergent in elevators.” He then went through a litany of asinine questions, like whether I’m an “expert” in any specific type of cases, or whether I held some cool, official title, or was I ever a professor somewhere. Continue reading →

At least New York Governor Andy Cuomo makes no bones about it being a matter of personal self-interest.

“As a father of two college-aged girls, with a third on the way next year, this isn’t just an important issue for the state, it’s a personal issue for me as it is for many parents who every fall say goodbye to their children with an expectation that their schools are doing everything they can to keep them safe.”

And that’s why Cuomo has no shame in saying, “This will be the toughest law in the nation, and I am proud of that.”  After all, there is  a scourge, and it’s teed up perfectly for him. Continue reading →

Jamison Koehler never struck me as a violent sort of guy, so it was a bit surprising that he would end up sharing his client’s desire to punch the complainant.

I wanted to hit him myself.

This is what I tell my client after speaking with the complainant in a simple assault case. My client is accused of punching the complainant in the face.

It’s not that the desire to punch someone doesn’t happen, but most people don’t. When they do, it doesn’t always turn into a case as it doesn’t rise to the level where the punchee feels it worthwhile to pursue. Being punched once is bad enough. Having to deal with the cops over a simple punch, with no lasting injury, just adds insult to the mix. But not this guy. Continue reading →

Mental health is one of the last deep, dark holes for disability advocates, as it begins to emerge into the sunlight of recognition that it’s not just the refuge of ax-murdering psychopaths but otherwise ordinary, intelligent, thoughtful people.  And yet, does that mean that our societal acceptance of psychological problems as a health issues make it out of bounds as a concern for lawyers?

Via Wally Olson at Overlawyered, the Department of Justice is investigating the Florida Supreme Court for evaluating candidates for admission for mental health issues.

The investigation was opened last December by the Justice Department’s civil rights division as an alleged violation of the Americans with Disabilities Act. The division wrote Chief Justice Jorge Labarga notifying him of the investigation.

For several years, the Justice Department has discouraged state bar licensing groups and the agencies that oversee them from asking people applying for law licenses about their mental health status.

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To most of the nation, the most damning thing about Freddie Gray’s conduct wasn’t that he possessed a knife, as so many other people do.  It’s that he ran.  According to Lt. Brian Rice, Gray made eye-contact with him, then took off.  While people can understand carrying a knife, they can’t understand flight. It seems so, so, wrong.

But then, they may have never enjoyed the experience of the arbitrary interaction, where a guy gets thrown to the ground, searched and, upon discovering that he’s clean, cut loose.

The law, on the other hand, sees flight as a significant factor:

In a 2000 case from Chicago, Illinois v. Wardlow, the court ruled that police officers can establish reasonable suspicion to stop and search if the person is in a high-crime area and sees the officers before fleeing.

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A jail, but no bail?  That’s the idea promoted in this New York Times op-ed by Maya Schenwar, editor-in-chief of Truthout, and it’s really quite a breathtaking idea.  Before getting to her point, it bears noting that Schenwar isn’t a lawyer, and demonstrates little grasp of the depth or complexity of the moving pieces of the legal system.

This makes her op-ed easy to pick apart on many levels, as she glosses over the details of the existing system with shallow observations like this:

Last month, Mayor Bill de Blasio of New York unveiled a plan to decrease the population of the Rikers Island jail complex by reducing the backlog of cases in state courts. About 85 percent of those at Rikers haven’t been convicted of any offense; they’re just awaiting trial, sometimes for as long as hundreds of days.

Mayor de Blasio’s plan is a positive step. Yet it ignores a deeper question: Why are so many people — particularly poor people of color — in jail awaiting trial in the first place?

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When Jim Tyre sent me the decision in United States v. Kim, hot off the presses, I shrugged it off. There it was, the outlier district court decision that ran contrary to every bad decision ever written about computer searches at the border.  That the border is a Constitution-free zone is beyond well-established, even though courts have completely forgotten why that was the case and have usurped their authority to protect our borders to indulge in a free search just because they can.

But that’s the law  It shouldn’t be, but it is.

So when DC District Court Judge Amy Jackson decided to revisit every border search decision ever and, dear judge that she is, explain why it’s all malarkey, you had to admire her pluck and dedication to reason over precedent.

That said, it was only a district court decision. Until a Circuit backed her up, a proposition that seemed pretty distant given the disruption to border search law it would cause, it wasn’t cause to break out the champagne.  I’ve wasted too many bottles of champagne already on the excellent lower court ruling that was blown away by the bigger bench as if it was chastising a wayward child for not coloring within the lines. Continue reading →

In contrast to the facile, often nonsensical, excuses offered to justify the needless shooting, killing, someone who fails to comply with an officer’s lawful command, Wagoner, Oklahoma Officer Benjamin Blair did something remarkable.  He didn’t shoot.  He didn’t kill.

From the Wagoner Tribune:

Blair was involved in a high-speed pursuit that turned suddenly into a wild chase through the wooded area in Gibson Station. When Blair walked up on the suspect lying facedown on the ground, he drew his weapon and told the suspect to show him his hands. Instead of complying, the suspect jumped up and took off running. Blair could have very easily squeezed off a shot as a nervous reaction, or he could have emptied his clip as the suspect ran away.

But he didn’t.

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