Appeals Court Denies Qualified Immunity For Transit Cop Who Arrested A Journalist For Taking Pictures Of EMS Personnel

from the try-to-keep-up-(with-policy-changes) dept

Last year, a federal court offered its sympathies -- but only limited recourse -- to a photographer who suffered a bogus "stop photographing us" arrest at the hands of a Dallas Area Rapid Transit (DART) cop.

Avi Adelman, a freelance journalist, was photographing EMS personnel responding to an apparent overdose. DART officer Stephanie Branch decided this just wouldn't do. She approached Adelman and got between him and the scene he was photographing. The officer then started laying down bullshit about "establishing a perimeter" and how his documentation was violating the HIPAA rights of person being attended to.

(If this crap about "HIPAA violations" sounds familiar, it's because law enforcement officers either don't understand how HIPAA works or they hope the person whose Constitutional rights they're violating doesn't understand how HIPAA works. This was the same excuse used by a Denver cop to detain a journalist who was recording the apparent arrest of a naked mentally-ill person in the middle of a public street. Just in case there are any cops lurking here, HIPAA violations occur when someone releases private medical info to unauthorized parties. It never happens when someone is suffering a medical emergency in a public area.)

Back to the DART case: despite Officer Branch including twenty-three false or inaccurate statements in her account of the arrest, she managed to dodge being directly held responsible for her violation of Adelman's First Amendment rights. Since the Fifth Circuit didn't clearly establish a right to record public servants until 2017, Adelman's 2016 arrest happened too soon for him to use that precedent to pierce Branch's qualified immunity. But Officer Branch was still on the hook for the Fourth Amendment violation. She appealed, but going up a level hasn't changed anything for the officer.

On appeal, the Fifth Circuit has upheld the lower court's decision, preventing Branch from eluding responsibility for violating Adelman's Fourth Amendment rights. Branch claimed she was unaware of the photography policy DART had put in place in 2014, which expressly permitted the actions Adelman was engaged in when Branch decided to arrest him.

But Officer Branch's actions were so obviously unreasonable, another officer and an EMT had this conversation while Branch was hassling the journalist. From the decision [PDF]:

DFR 1 – He was just taking pictures right?

Officer Cannon – Yea[h] that’s why I don’t know why she’s giving him a hard time[.]

DFR-1 – Why is she going crazy?

Officer Cannon – I don’t know[,] that’s going to be on her[.] [H]e can take all the pictures he wants[,] that’s why I’m not getting involved in that. . . .

DFR-1 – He knows he wasn’t doing nothing wrong so. . .

Officer Cannon – I don’t know why she . . . . There was no need for that[.]

DFR-2 – Yea[h] I don’t know where that idea came from but this is . . . because there is freedom of the press[.]

Her own agency came to this conclusion after an internal investigation:

“Adelman was not breaking any laws and would not lead a reasonable person to believe that he was committing a crime or had committed a crime or [was] about to engage in committing a crime. . . . [T]herefore the arrest of Adelman for criminal trespass was not based on sufficient probable cause.”

It also had this to say about Branch's actions:

“The evidence indicates that Officer Branch did violate the DART Administrative Employment Manual and did not refrain from activity which was illegal or could reflect negatively on DART when she made various inconsistent or mistaken statements on her DART Police [I]ncident Report . . . and made the arrest of Avi Adelman for criminal trespass.”

The court points out in a footnote that even if Branch was not present when the 2014 policy permitting photography was instituted, this failure to familiarize herself with DART policies is on her.

Branch asserts that she was reasonable in believing she had authority to order Adelman to leave because she was on sick leave when DART implemented the new Photography Policy that permits the public to take photos on DART property. [Branch was on sick leave from May 2014-January 2016. The policy was enacted June 2014.] The old policy apparently would have prohibited Adelman from being on DART property if he wasn’t using it for “transportation purposes.” [...] But Branch’s mistake was not reasonable. She didn’t misinterpret an unclear policy or law; she simply failed to learn about DART’s updated policy. And “an officer can gain no Fourth Amendment advantage through a sloppy study of the laws [s]he is duty-bound to enforce.” Heien, 135 S. Ct. at 539–40.

The case now goes back to the lower court where it seems likely Officer Branch won't be able to talk a jury into siding with her should the litigation reach that point. The established right to photograph public servants came along a little bit too late to help Adelman on his First Amendment claims, but at least he can still go after Branch for her bogus arrest and the night he spent in jail.

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Filed Under: avi adelman, civil liberties, dart, ems, free speech, photographing police, qualified immunity, stephanie branch, transit police