Letter to Representative Eric Johnson on the Unconstitutionality of House Bill 1035.

Representative Villalba's Bill that would criminalize people who filmed police within 25 feet was quickly quashed by a massive outpouring of constitutionally generated condemnation.  Representative Johnson's Bill on filming the police seemed a little more reasonable.  What's wrong with a police officer telling someone to change his location?  Antonio Buehler and I testified in the public comments hearing against House Bill 1035, that would require filmers to obey police officers before they could avail themselves of their First Amendment right to film the police.  Below, I have cut-and-pasted my letter to Representative Johnson.  I did not fix the 6 typos I saw after I sent the letter - I'm keeping it 100...

LAW OFFICE OF

MILLIE L. THOMPSON

ATTORNEY AT LAW

401 Congress Ave., Ste. 1540

Austin, Texas 78701

512-293-5800

Facsimile (512) 682-8721

Email: millieaustinlaw@gmail.com

 

April 27, 2015

 

HB 1035: Concerns Regarding its Constitutionality

 

 

Texas State Representative Eric Johnson

District 100

1409 S. Lamar Street, Ste. 9

Dallas, Texas 75215

(214) 565-5663

By Email to: eric.johnson@house.state.tx.us

CC: hannah.alexander@house.state.tx.us

CC: ana.rodriguez@house.state.tx.us

CC: allen.fletcher@house.state.tx.us

CC: dawnna.dukes@house.state.tx.us

CC: linda.koop@house.state.tx.us

CC: marisa.marquez@house.state.tx.us

CC: armando.martinez@house.state.tx.us

CC: james.white@house.state.tx.us

 

Dear Mr. Johnson,

 

Pursuant to discussions with your Policy Analyst, Ms. Hannah Alexander, I put together my concerns about House Bill 1035.  You will find an outline of the Constitutional problem with conditioning a First Amendment right on obedience to a police officer.   You will also find a discussion on how our Fourth Amendment right to be free from unreasonable seizures is implicated.  Given your stated goal of educating the public and police about the right to film, I offer some alternative proposed language for Texas Penal Code Section 38.15.  Thank you for being open to our input.

 

Briefly, about me: I am a criminal defense lawyer, whose practice spans most of the state of Texas.  Specifically relevant to HB 1035, I represent activist clients charged with interfering with a police officer under Texas Penal Code 38.15, who were filming the police, with cases pending in both Houston and Fort Worth.  I represent Antonio Buehler, who has been targeted by the Austin Police Department for filming them.  I have tried cases to juries where my clients were charged with disobeying a police officer under municipal codes in both Austin and Houston.

 

 

A summary of the problems with the proposed amendment to Texas Transportation Code 542.501:

 

The original proposed amendment to Texas Transportation Code, Section 542.501 provides:

(b) Subsection (a)(1) does not apply to an order or direction to cease filming, recording, photographing, documenting, or observing a peace officer while the officer is engaged in the performance of official duties. An officer may give an order or direction to change a person’s proximity or position.

The words "reasonable and lawful" were inserted into a new draft.  Despite the changes, this Bill is not a valid time, place, or manner restriction on our First Amendment rights.  Because it authorizes police officers to arbitrarily order people to move in a public forum – where we have a First Amendment right to be, it gives officers too much discretion.  The proposed change to 542.501 is (a) unconstitutionally void for vagueness, (b) gives police unbridled discretion to violate First Amendment rights, and (c) it allows for suspicion-less seizures contrary to established Fourth Amendment jurisprudence.

The amendment to Texas Penal Code, Section 38.15(c) provides that it is a defense to prosecution for interfering that “the conduct engaged in by the defendant […] consisted only of filming, recording, photographing, documenting, or observing a peace officer and if lawful orders by a peace officer to change proximity or position were obeyed.”

Texas Penal Code, Section 38.15(d), however, already provides a defense to prosecution that the interference was “speech alone.”

Because HB 1035 distinguishes between the co-equal First Amendment rights to speak in 38.15(d) and gather information in 38.15(c), it must “be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized.”[1]

During public comment on HB 1035, it was stated that this Bill does not create new law, but instead is intended to inform the public and police about the right to film.  No substantial state interests were uttered that would justify treating speech and filming differently.  No substantial state interests were uttered that would justify authorizing police to arbitrarily decide who gets to stand where in a public forum.

Below, I go through the law.  Second, I give some experientially based scenarios regarding how police view these situations on the ground.

First Amendment Law: Filming is Speech.

Filming is speech.  The First Amendment equally protects A) our right to assemble in a public forum, B) speak on a matter of public concern, and C) receive and gather information.[2]  Filming falls under the ‘receive and gather information’ right.[3]  Without the right to appear in a public forum and gather information, the right to speak would be meaningless – we would have nothing interesting to say. 

Police conduct is almost per se a matter of public concern. [4]

A public sidewalk is a traditional public forum.[5]  The government’s ability to restrict speech in traditional public fora is strictly limited.[6]  The government may, however, impose reasonable time, place, or manner restrictions if and only if 1) the restrictions are justified without reference to the content of the regulated speech, 2) the restrictions are narrowly tailored to serve a compelling governmental interest, and 3) they leave open ample alternative channels for the exercise of First Amendment rights.[7]

Here, HB 1035 is not content neutral – by definition, a person observing and filming the police is in a public forum in order to film the police.  Police conduct is the content.  The Bill begins with “relating to criminal offenses involving the filming, recording, photographing, documenting, or observing of a police officer.”  Clearly, the Bill is targeted at the First Amendment right to gather information on the police.  HB 1035, therefore, is not content neutral.

A law is void for vagueness when it gives law enforcement unbridled discretion.

As a matter of Constitutional law, legislation cannot be amorphous,[8] but instead must be calculated to inform ordinary people how to conform their conduct to the law.[9]  Clearly defined traffic laws, allowing the police to regulate traffic flow, do provide the requisite level of notice to the public.[10]  When, however, a legislature fails to set reasonably clear guidelines for law enforcement officials and triers of fact to prevent “arbitrary and discriminatory enforcement” of the law, the statute is unconstitutionally void for vagueness.[11]  When a law permits “selective law enforcement, there is a denial of due process.” Id.

The proposed change to 542.501 gives police unbridled discretion to order people to move in a public forum, unrelated to traffic control.  The statute gives no guidance to law enforcement on how to conduct themselves, nor does it give the public notice of what is and is not a crime.  Instead, it is left to individual police officers in the field to create law in the moment by giving orders to change position or proximity.  Courts have roundly rejected police officers’ attempts to criminalize protected speech by using discretionary charges.[12]

Please take particular note of City of Houston v. Hill, 482 U.S. 451 (1987).  The Supreme Court rejected a municipal ordinance because it “effectively grant[ed] police the discretion to make arrests selectively on the basis of the content of the speech,” which the Court found “particularly repugnant.”  The Court explained that our freedom to “verbally oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” Hill, 482 U.S. at 462-63; see also Mesa v. Prejean, 543 F.3d 264 (5th Cir. 2008). 

 

Fourth Amendment jurisprudence requires a police officer to reasonably believe a person has, is, or will commit a crime before seizing him.

A person is seized “when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement.”[13]  An officer can even unintentionally seize someone for Fourth Amendment purposes: “an unintended person … [may be] the object of the detention, so long as the detention is willful and not merely the consequence of an unknowing act.”[14]  To determine whether law enforcement has seized someone, we ask whether “a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” Id. (citation omitted).  When an officer exercises such control over the situation that a reasonable person would not feel free to refuse, then a seizure has occurred. See Id

Police cannot seize people without reasonable suspicion to believe that they are committing a crime, with some notable exceptions.[15]  “Absent reasonable suspicion, officers may conduct only consensual” encounters with civilians.[16]  A police officer has reasonable suspicion to believe a person has, is, or will commit a crime if and only if the officer can “point to specific and articulable facts which, taken together with rational inferences from those facts,” lead the officer to reasonably think the person has, is, or will commit a crime.[17]  Reasonableness is evaluated objectively, not subjectively.  The officer’s subjective belief is irrelevant. Id.

The proposed change to 542.501 ostensibly gives law enforcement the right to order people around absent reasonable suspicion to believe they are committing a crime.  Such orders are seizures – reasonable people would not believe they could defy the police officer with impunity.  While the police have an established ability to direct traffic for the clearly compelling governmental interest in public safety on our roadways, there is no constitutionally permissible authority to regulate our position on an otherwise available public sidewalk.[18]

Making the right to film conditional upon obedience to police ghettoizes the right to film.

Further, the fact that the Bill makes a First Amendment defense of filming conditional upon submission to police authority, demonstrates an intention to restrict activists who film the police.  There is already an established defense to prosecution in 38.15(d) that says that it is a defense to prosecution that the alleged interference constituted speech alone. 

Filming is speech.  Separating out the act of filming from the established First Amendment defense in the statute, ghettoizes filming.  Because filming is a co-equal to the First Amendment right to speak, the proposed amendment “diminish[es] the credibility of the government’s rationale for restricting [filming] in the first place.”[19]  “Underinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.”[20]  

Why is it an unconditional defense to prosecution that the interference constituted speech alone, but the proposed filming defense is conditional upon obedience to police authority?  Notably, there were repeated references to “frivolous lawsuits” during opening of public comments on HB 1035.  It strains credulity that this Bill isn’t directed at activists who film the police.

HB 1035 is not content-neutral.

“When government regulation discriminates among speech-related activities in a public forum, the Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized.”[21]  Further, “[s]elective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone.”[22]

Here, the Bill authorizes police officers to tell filmers to move, and conditions a First Amendment right on obedience to that police officer.  First, a filmer who films police wants to gather information about police.  The police officer, who is ostensibly given unbridled discretion to order the filmer to move, is himself the content.  There is a clear conflict of interest in giving an officer discretion to tell someone to change positions in a public place when that officer is himself the subject of the filmer’s First Amendment protected interest.  There is a grave conflict of interest in giving a police officer the ability to destroy a First Amendment defense to prosecution by merely giving the filmer an order.

Second, 38.15(d) provides a defense to the charge of interference that the alleged interference is speech alone.  That defense is not conditioned upon any obedience to a police officer.  HB 1035 separates filming from speaking in a way that is not supported by any First Amendment jurisprudence.  There is no stated reason why the right to film is conditional, but the right to speak is not. 

No police officer thinks he’s unreasonable.  HB 1035 does not define a “lawful order” consistent with Fourth Amendment jurisprudence.

I see the words “reasonable” and “lawful” included in the proposed changes to 38.15(c) and 542.501.  The practical problem with these words is this: Police officers all think they’re reasonable people!  They wouldn’t dream of giving unreasonable orders. 

Likewise, police see the word ‘lawful’ and believe it means that their order is good so long as it does not require the subject to commit a crime.  In fact, I have had lawyers approach me and ask what a “lawful order” is (since the Antonio Buehler trial).  They assumed it merely meant that the officer didn’t order the person to commit a crime.  I then had to explain that a lawful order also complies with the Constitution.  Most lawyers, judges, and police officers do not automatically consider the Fourth Amendment implications of orders unless there is some evidence to be suppressed. 

As explained above, once a person feels that they have to comply with an order, they’ve been seized.  If there’s no reasonable suspicion for that seizure, it is an illegal order.  Police officers don’t make these connections.  Because they don’t automatically connect their Fourth Amendment training to the orders they give in the field, police officers cannot be expected to exercise restraint when they see the amended language in 542.501.  Law enforcement will interpret that language to mean that they can order anyone to move, and so long as they don’t order the person to commit a crime, the order is sanctioned under Texas law.  As such, the amendment will in fail in the stated goal of educating law enforcement on the public’s rights.  Law enforcement will be better off with additional training in the Fourth Amendment.  Further, civilians would have no idea what the law is until they are ordered to comply with an officer’s discretionary view of where it is appropriate for the person to stand.  The proposed amendment is therefore void for vagueness.

Austin Police Department created a game-of-gotchya that HB 1035 would codify.

Antonio Buehler was illegally arrested for photographing and verbally expressing disapproval of APD officers’ treatment of a defenseless woman.  He found himself facing serious felony charges for allegedly spitting on the officer he verbally challenged.  A passerby’s i-phone video of the events and a 7-11 surveillance camera provided sufficient evidence to ensure that Mr. Buehler was not indicted by the grand jury on the spit-related felony charge.  And, the video evidence was key in proving to a jury that Mr. Buehler did not disobey a lawful order to put his hands behind his back, since the officer didn’t have reasonable suspicion to believe Mr. Buehler had committed a crime.

 

In response to the charges, Mr. Buehler – a Westpoint graduate, Veteran (tours in Kosovo and Iraq), MBA from Stanford, and MA from Harvard – formed a grassroots activist organization called Peaceful Streets Project (“PSP”).  PSP encourages citizens to film the police in order to discourage police misconduct and provide exculpatory evidence for people wrongfully charged with crimes, like Mr. Buehler.  Mr. Buehler and other PSP members began going on ‘cop-watches’ to film the police in public, in 2012. 

 

In response to this activism, APD formulated a policy that played out as follows:

 

1)   Officers were told they could not tell people not to film, but

2)   They could tell people to move their location based on geographical markers, and

3)   After the officers had twice requested that the person move to a different geographical location, the officers could then arrest the person for interfering under Texas Penal Code 38.15.

 

APD officers would engage in a game-of-gotchya with Mr. Buehler wherein the officers would give Mr. Buehler arbitrary orders to move his location, and then arrest him when he either challenged their authority to tell him to move, or if he didn’t move fast enough to suit them.

 

Before his arrest on September 21, 2012, Mr. Buehler sought to film a DWI stop.  He stood on a public sidewalk.  The police officer handling the DWI investigation told Mr. Buehler to “move back.”  Mr. Buehler asked “how far?”  The officer responded, “until I tell you to stop.”  Another APD officer arrived at the scene, and ordered Mr. Buehler to move forward – toward the DWI investigation.  When Mr. Buehler told the officer that he was leaving, the officer arrested him.  Mr. Buehler was charged under Austin Municipal Code Section 9-4-51 – for failing to obey an order of a peace officer.  This absurd exchange was captured on video.  The case was dismissed.  He beat the rap, but not the ride.

 

Police officers who do not want to be filmed will use HB 1035 to justify ordering filmers to move to places where they cannot capture video.  And, if the filmer has a healthy sense of his own constitutional rights, officers will not hesitate to arrest filmers that refuse arbitrary orders to move.  There is no significant governmental interest in codifying a game-of-gotchya when it was clearly stated that this Bill does not create new law, but is instead intended to educate the public and law enforcement. 

 

Police officers are trained on constitutional principals and swear to uphold the constitution.  Most people who film the police have a healthy sense of their own constitutional rights.  Given the reality of police training in constitutional rights, and the public’s increasing desire to film the police, there is no compelling reason to make HB 1035 law.

 

That said, however, the following proposed language for 38.15(d) would send a clear message that we have the right to film police in a public place:

 

It is a defense to prosecution under this section that the interruption, disruption, impediment, or interference alleged consisted solely of exercising First Amendment rights, including but not limited to speech or filming in a public place.

 

 

Thank you again for being open to comments and suggestions.  Please contact me if you have any questions.

 

                                                      Sincerely,

 

                                                      ____________________________________

                                                      Millie L. Thompson

 

 

[1] Carey v. Brown, 447 U.S. 455, 461-62 (1980). 

[2] de la O v. Hous. Auth. Of El Paso, 417 F.3d 495, 503 (5th Cir. 2005)(citing Perry Ed. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 45 (1983)).

[3] Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011).

[4] See Branton v. City of Dallas, 272 F.3d 730, 740 (5th Cir. 2001).

[5] Frisby v. Schultz, 487 U.S. 474, 480 (1988).

[6] McCullen v. Coakley, 134 S.Ct. 2518, 2529 (2014).

[7] McCullen, 134 S.Ct. at 2529.

[8] Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).

[9] Kolender v. Lawson, 461 U.S. 352, 357 (1983).

[10] See Frye v. Kansas City Mo. Police Dep’t, 375 F.3d 785, 791 (8th Cir. 2004).

[11] See Smith v. Goguen, 415 U.S. 566, 573-576 (1974)(“the most meaningful aspect of the vagueness doctrine is not actual notice, but the other principal element of the doctrine – the requirement that a legislature establish minimal guidelines to govern law enforcement”).

[12] See, e.g., Norwell v. City of Cincinnati, 414 U.S. 14, 16 (1973) (per curiam) (reversing disorderly conduct conviction because “one is not to be punished for nonprovocatively voicing his objection to what he obviously felt was a highly questionable detention by a police officer”); Swartz v. Insogna, 704 F.3d 105, 110–11 (2d Cir. 2013) (finding no probable cause for disorderly conduct arrest because statements and gestures critical of police were protected speech); Wilson v. Kittoe, 337 F.3d 392, 401 (4th Cir. 2003) (finding no probable cause to arrest for obstruction when plaintiff spoke to officer and observed arrest of another from his own driveway because “inconvenience cannot, taken alone, justify an arrest under the Obstruction statute”); Payne v. Pauley, 337 F.3d 767, 777 (7th Cir. 2003) (finding that arguing with a police officer, even if done loudly using profane or offensive language, will not alone constitute disorderly conduct); Johnson v. Campbell, 332 F.3d 199, 213 (3d Cir. 2003) (finding no probable cause to arrest when words to officer were protected by First Amendment, even if unpleasant and insulting); Enlow v. Tishomingo County, 962 F.2d 501 (5th Cir. 1992) (finding no probable cause to arrest for interference with raid when plaintiff asked officer two questions and took a photograph of the raid in progress); Gainor v. Rogers, 973 F.2d 1379, 1387–88 (8th Cir. 1992) (finding arrest not supported by probable cause when plaintiff, “merely exercising his First Amendment rights,” expressed a religious message and challenged police officers’ actions).

[13] Brendlin v. California, 127 S.Ct. 2400, 2405 (2007) (citations and quotation marks omitted).

[14] Id. (citations and quotation marks omitted).

[15] See Brendlin, supra

[16] St. George v. State, 237 S.W.3d 720, 726 (Tex. Crim. App. 2007).

[17] Davis v. State, 947 S.W.2d 240, 242 (Tex. Crim. App. 1997).

[18] Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969).

[19] Johnson v. Minneapolis Park and Recreation Board, 729 F.3d 1094, 110 (8th Cir. 2013) (citation omitted).

[20] Brown v. Entm’t Merch. Ass’n, __U.S.__, 131 S.Ct. 2729, 2740 (2011).

[21] Carey v. Brown, 447 U.S. 455, 461 (1980).

[22] Id. at 463 (citation omitted).