Joseph J. Ross, Esq. in Articles | July 7, 2017

3rd Circuit in Philadelphia case: 1st Amendment protects recording police in public

Some notable passages from today’s 3rd Circuit opinion in Fields v. City of Philadelphia, holding that there is a First Amendment right to record police officers in public, written by Circuit Judge Thomas L. Ambro:

the District Court focused on whether Plaintiffs had an expressive intent, such as a desire to disseminate the recordings, or to use them to criticize the police, at the moment when they recorded or attempted to record police activity. […] This reasoning ignores that the value of the recordings may not be immediately obvious, and only after review of them does their worth become apparent. The First Amendment protects actual photos, videos, and recordings, see Brown v. Entm’t Merchants Ass’n, 564 U.S. 786, 790 (2011), and for this protection to have meaning the Amendment must also protect the act of creating that material.

and

To record what there is the right for the eye to see or the ear to hear corroborates or lays aside subjective impressions for objective facts. Hence to record is to see and hear more accurately. Recordings also facilitate discussion because of the ease in which they can be widely distributed via different forms of media. Accordingly, recording police activity in public falls squarely within the First Amendment right of access to information. As no doubt the press has this right, so does the public.

but

We do not say that all recording is protected or desirable. The right to record police is not absolute. “[I]t is subject to reasonable time, place, and manner restrictions.” Kelly, 622 F.3d at 262; see Whiteland Woods, L.P. v. Twp. of W. Whiteland, 193 F.3d 177, 183 (3d Cir. 1999). But in public places these restrictions are restrained.

and

Having decided the existence of this First Amendment right, we now turn to whether the officers are entitled to qualified immunity. We conclude they are.

That last bit is primarily, though not solely, because the 3rd Circuit had not decided such a case as this yet when the incidents in question occurred. Now that the existence of the right to record police in public is “clearly established,” the next time a similar case shows up in court, qualified immunity may be off the table. Hopefully that potential liability will discourage Philadelphia officers from retaliating in the future.

Court Junkie podcast episode on Eric Frein trial

I was a law clerk when the murder of Corporal Bryon Dickson and near-murder of Trooper Alex Douglass sparked a weeks-long manhunt that resulted in the capture, trial and conviction of Eric Matthew Frein. I won’t talk about anything I did with regard to the case (which was very little anyway), but I was living in the county seat of Milford, PA at the time and I can tell you the tragedy visibly saddened and infuriated several communities.

This link is to a fascinating episode of the Court Junkie Podcast which details the events in sensitive but vivid detail.

A disturbing sex trend called ‘stealthing’ is on the rise

‘Stealthing’ is the non-consensual removal a condom during sex. Alexandra Brodsky’s article in the Columbia Journal of Gender and Law [PDF] is powerful, nuanced and well-presented.

And I, too, can be powerful, nuanced, and well-presented when necessary. But this won’t be one of those times, so I want to make a language warning here for family and friends sensitive to vulgarities…

Men who ‘stealth’ are pieces of shit. Victims are left trying to equate it with rape when the perpetrators should be required to show why it is not. Here’s a choice quote from the USA Today article linked above:

The study also pointed to online forums where men often brag about removing a condom during sex or offer advice on how to get away with it. Some of the men in the forum have even suggested it’s their right to, “spread one’s seed”.

Such men should be sterilized. It is the State’s right to protect women from these cowards whose masculinity is tenuous and insecure that they are too scared to attempt a real relationship in which consent for unprotected sex is freely given at some point.

New Orleans: an unethical District Attorney and an overworked Public Defender

Prosecuted by her legal counterpart: ‘It destroyed my life in so many ways’

This DA should resign, now:

At least six defense attorneys and investigators say they faced threats of criminal charges by the Orleans parish district attorney for doing their jobs, the Guardian has found. Since DA Leon Cannizzaro took office in 2009, the attorneys have been accused of kidnapping, impersonation and witness tampering in the course of defending their clients. Each case has failed to stand up to scrutiny: all charges that have been brought were eventually dropped or overturned.

Disgusting.

Anderson Cooper did a great segment on 60 Minutes about how an underfunded, understaffed and overworked New Orleans Public Defender’s Office has started refusing felony cases. Chief PD Derwyn Bunton says he and his 52 attorneys cannot possibly represent the 20,000 clients they get annually in a way that comports with the ethical standards to which all attorneys are held, and to which criminal defendants are Constitutionally entitled.

It’s a divisive choice, but I think it’s the right one. Public Defenders Offices are notoriously underfunded all over the country, seen as low-hanging fruit when a politician or bureaucrat needs to cut budgets. But they should be among the last budgets cut. Many criminal defendants are guilty, and many are not. Because of that, all are entitled to the same Constitutionally mandated set of rights, chief among them being the right to representation.

No, public defenders don’t need and shouldn’t get astronomical budgets. But they should not have to divide 20,000 cases between 52 lawyers, either. That’s 384 cases per lawyer per year. Would you want to share your public defender with 383 other people? Would you feel confident that you will get your Constitutional rights to competent representation and a fair trial?

Didn’t think so.

A month after dismissing federal prosecutors, Justice Department does not have any U.S. attorneys in place

Attorney General Jeff Sessions is a lot of things. But so far, none of those things include “good at being Attorney General.”

Would you hire a builder who, when he finds out you want a new house at some point down the road, just knocks down the one you have now, without thinking about where you’ll live until the new one is ready?

If you would, then Jeff Sessions is your man. Because he knocked down the Justice Department before even making the vague outline of a plan to put a new one in place.

Oh, and just in case you forgot, he’s a racist son of a bitch, too.

Sources: Nintendo to launch SNES mini this year

Tom Phillips writes at Eurogamer:

The reality of a SNES mini is certainly exciting – while the NES was unique for being Nintendo’s first home console, the SNES arguably boasts the better software line-up, and a catalogue of classics far more advanced than their NES forebears. Compare The Legend of Zelda on NES to A Link to the Past, for example, or Donkey Kong to Donkey Kong Country.

Other top SNES games from Nintendo include Super Metroid, Super Mario Kart and Super Mario World, as well as Earthbound, Star Fox and Super Mario RPG: Legend of the Seven Stars. The console also had some of the best RPGs of the era, including Square’s Chrono Trigger and Secret of Mana.

Many people use emulation software of questionable legality (not that I have ever done anything even remotely like that, like, at all, ever) but soon there may no longer be a need for emulation. This is exciting and I’ll absolutely be buying one of these.

Alex Jones’ rock and hard place: Authentic lunatic or performance artist and fit parent?

In Travis County custody case, jury will search for real Alex Jones

Jonathan Tilove reports this story for American-Statesman:

Beginning Monday, a jury will be selected at the Travis County Courthouse that in the next two weeks will be asked to sort out whether there is a difference between the public and private Alex Jones, and whether, when it comes to his fitness as a parent, it matters.

Kelly Jones’ attorney, Bobby Newman, is engaged in some quality tactical litigation:

[Judge] Naranjo, meanwhile, said she had never seen or heard Jones on Infowars until Wednesday’s hearing, when Kelly Jones’ legal team started previewing Infowars videos it would like to play for the jury.

The first was a clip from a July 2015 broadcast in which Jones had his son, then 12, on to play the latest of some 15 or 20 videos he had made with the help of members of the Infowars team who, Jones said, had “taken him under their wing” during summer days spent at the South Austin studio between stints at tennis and Christian camps.

“He is undoubtedly cut out for this, and I intend for him to eclipse what I’ve done. He’s a way greater person than I was at 12,” said Jones, turning to his son. “I love you so much, and I didn’t mean to get you up here, sweetheart, and tell people how much I love you, but you’re so handsome, and you’re a good little knight who’s going to grow up, I know, to be a great fighter against the enemy.”

“So far this looks like good stuff,” [Alex Jones’ Attorney Randall] Wilhite said. Naranjo OK’d it for viewing by the jury.

But Bobby Newman, the attorney for Kelly Jones guiding the court through the Infowars clips, was laying the groundwork for the argument that there is no separation between Alex Jones, father, and Alex Jones, Infowarrior.

It’s a solid argument, and Alex Jones is in a bit of a bind here, forced to choose between maintaining the authenticity of a lunatic his inexplicably massive fanbase worships and sacrificing that authenticity in an attempt to hang onto custody of his young children.

Unenforceable ban on atheists holding public office still on the books in 8 states

This is an old story but after reading an article about a study [PDF] suggesting there are many atheists who don’t want to admit they’re atheists, I remembered reading about how a country which prides itself as a world leader in personal freedom still has laws banning atheists from public service.

My memory was correct, and that country is the United States. Oyez, which publishes Supreme Court resources including audio of oral arguments, has a great page on the 1960 case which declared such laws unconstitutional (as if anyone should have needed the Supreme Court to tell them that…).

In Torcaso v. Watkins, the Court held unanimously that, quoting Oyez:

such a requirement places the state of Maryland firmly on the side of those people who believe in God and are willing to state their belief. With this requirement, Maryland effectively aids religions that profess a belief in God at the expense of any other form of belief or disbelief. The First Amendment expressly prohibits a state from taking this position. Although the candidate has the option of not pursuing public office rather than declaring a belief in God, the test is an unconstitutional encroachment on the freedom of religion.

So these laws aren’t enforceable, but the fact that they’re still on the books is an affront to the Constitution and should embarrass any lawmaker who claims to respect that Constitution.

Mentally incompetent Utah man dies in hospital after jail episode left him paralyzed

Is this the kind of country where we let mental illness go untreated to the point where someone in jail for fighting with a couple of cops is effectively allowed to commit suicide, while on suicide watch?

Jail video shows a naked Hall with disheveled long hair and beard running headfirst into a wall three times before climbing up on the sink and falling headfirst to the floor. At the time, Hall had been waiting five months for a bed and treatment at the Utah State Hospital. Utah designates 100 beds at the hospital for inmate mental health treatment, but once the beds are occupied, additional defendants await openings from jail cells.

And this:

The Utah LegislatureThe Utah Legislature recently set aside $3 million in an effort to resolve a federal lawsuit filed by the Salt Lake City-based Disability Law Center, which alleges mentally ill defendants are not provided a speedy trial and suffer in jail without treatment because the state does not provide enough hospital beds and specialists to treat them.

Why couldn’t they set aside $3 million before they were sued, to solve the problem before anyone died?

United Airlines Tumbles After Social-Media Storm Goes Global

Justin Bachman and Linly Lin reporting at Bloomberg Markets:

United Chief Executive Officer Oscar Munoz apologized on Monday for “having to re-accommodate these customers.” The airline is conducting a review and seeks to resolve the matter with the man who was dragged off the airplane, Munoz said in an emailed statement. In a subsequent message to employees, the CEO called the passenger “disruptive” and “belligerent.”

This debacle is still unfolding but will clearly end up in PR textbooks.

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