constitutional law

Jul 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.

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.

Apr 28, 2015 ∞

Re-engaging driver with questions after saying he’s free to leave is a second stop

This is worth knowing if you’re a Pennsylvania resident or you find yourself frequently driving through the state. However, do yourself a favor and don’t throw it in the face of an officer whose behavior implies he or she doesn’t know about this precedent. If you’re innocent, keeping it to yourself will expedite the stop. If you’re guilty, comply with the officer and bring up this case to your public defender or private defense attorney.

Feb 15, 2014 ∞

Sens. Cruz and Lee Introduce State Marriage Defense Act

At this point the anti-Constitutionalists are trolling themselves. A choice bit from this piece of garbage:

The bill will ensure the federal government gives the same deference to the 33 states that define marriage as the union between one man and one woman as it does to the 17 states that have chosen to recognize same-sex unions.

It doesn’t matter how a state wants to define marriage, whether it’s full of crazy conservatives or mushy liberals. It only matters what the Constitution requires, and that is equal protection under the laws.

All consenting adults with the capacity to validly enter a contract are allowed to marry. Legislating around that fundamental right violates the Constitution.

We’ve been over this.

Feb 14, 2014 ∞

Kansas anti-gay segregation bill is an abomination.

Mr. Stern’s headline sums it up very well. If you don’t believe it can really be that bad, read the PDF.

It is that bad. Ignorance is one thing, but open hostility like this cannot stand and anyone who supports this bill commits the intellectual equivalent of burning the original Constitution to a pile of ashes.

Let me translate that from fiery liberal anger into constitutional principles:

A law allowing the detrimental differential treatment of a class of persons traditionally subject to invidious discrimination because they belong to that class violates the Equal Protection rights granted by the Constitution as to the federal government in the 5th Amendment and extended as to the States by the 14th Amendment.

Let us quote the Good Document itself:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Gotta love that 14th Amendment. There’s nothing ambiguous in the juxtaposition of the Kansas bill and the Constitution. You can’t deny someone equal protection of the laws. You can’t tell me I’m not allowed in your hotel because I’m a man. Maybe if it’s a country club. But not a hotel. Or a restaurant. Or a state.

The use of freedom of religion as a pathetic attempt to hide animosity and hatred is a supreme act of collective cowardice by the Kansan legislators who vote for this bill.

It is an un-American as it gets. But the good news is, as one ruling after another makes ever-more-clear, you can’t stop history.

Aug 10, 2013 ∞

Legislative failure to define essential terms

The definition of terms essential to the application of a law is the most basic requirement for competent lawmaking.

Sometimes one or more terms are appropriately defined in an open way, to provide flexibility in the application of a law. This is not one of one laws. The shield law is meant to protect reporters, so defining what exactly a reporter is should be done wi surgical precision.

I am open to arguing how broad or narrow the definition of journalist should be in a shield law, but that conversation but result in a specific outcome that is codified in the new law.

It is impossible to have that discussion and achieve that specific codification when legislators shirk their fundamental responsibility.

As Morgan Weiland of the Electronic Frontier Foundation explains in the article linked above, Senators Feinstein and Durbin, and all the legislators who contributed to the poorly-drafted law, have failed in their duty to their constituents and the rest of our country. Hopefully a competent legislator will step in to correct their shortcomings as the law progresses.

Dec 26, 2012 ∞

Government can still warrantlessly read older emails

This is unfortunate. There are processes in place that are designed to ensure the preservation of various constitutional rights. The warrant process is one of the most important, and for many people email is far more ubiquitous than other forms of correspondence and property that do require a warrant for seizure in most situations.

Nov 8, 2012 ∞

Judge blocks California’s new ban on anonymity for sex offender

This one is worth watching. With regard to blogs and forums, particularly, there’s a strong analogy with letter-writing and other modes of communication with the “outside” that are typically allowed.

The plaintiffs, two registered California sex offenders, argue that prohibiting their anonymous speech online “even if it pertains to news, politics, and professional activity, and could not possibly be used to commit a crime” violates the First Amendment.

This looks similar to a case I wrote about in October, where a Nebraska federal court tossed a similar law in that state.

I don’t want sex offenders to have access to children online. But these measures do go too far. Maybe registered sex offenders should be required to access the internet via special software that, while it allows anonymity, prevents access to services and sites that reach children.

At the end of the day, the truth is that these laws apply to people who have otherwise served their time, who are “free” in the legal sense, and who no longer labor under the curtailed liberties of institutional imprisonment. That imprisonment is meant to punish them, but also to keep the public safe, to prevent them from moving through public crowds anonymously.

If we have released them from prison, allowing that physical anonymity once again, by what logic do we eliminate their digital anonymity?

I don’t have an answer, but I suspect the issue will reach the Supreme Court sooner rather than later.

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