Category Archives: Constitution

High Profile Lawsuit Against Attorney General Kathleen Kane Dismissed (For Now)

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Earlier this week a federal district court judge dismissed a high-profile lawsuit against Attorney General Kathleen Kane brought by former employees.  But the legal reasoning of Judge Harvey Bartle in dismissing the claims is probably less interesting than his summary of the allegations, which provide a detailed look at an evolving political grudge match between Pennsylvania’s sitting Attorney General and a high level State prosecutor.

I have written about the ongoing legal/political battle between Attorney General Kathleen Kane and former prosecutor Frank Fina before, see http://wp.me/p6DFYU-2g.   Judge Bartle’s opinion sheds more light on the origin of this controversy and his ruling resolves, at least temporarily, some of the contentious civil claims being made against Attorney General Kane.

The lawsuit in question was brought by Fina and a few other former employees of the Attorney General’s Office.  Fina and the other plaintiffs sued Attorney General Kane claiming she retaliated against them for exercising their right to free speech and defamed them publically.  Judge Bartle summarized the factual allegations underlying Fina’s lawsuit, which more or less go as follows:

In 2012, Kathleen Kane announced her candidacy for Attorney General.  Around the time she announced her candidacy, allegations that Jerry Sandusky had been molesting children dominated the news. As part of her platform, Kane criticized the OAG’s handling of the Sandusky investigation under Tom Corbett’s leadership. Specifically, she claimed the OAG’s office both delayed charging Sandusky and failed to allocate the appropriate resources to the investigation.  As part of her campaign for Attorney General, Kane promised she would “investigate” the OAG’s handling of the Sandusky investigation. 

When Kane assumed office in January 2013, Fina (who handled the prosecution of Sandusky) was overseeing a long-running bribery investigation. As part of the investigation, Fina was utilizing an informant named Tyron Ali.  Ali had signed a cooperation agreement with the OAG’s office and, in exchange for avoiding prosecution, was recorded offering bribes to various Philadelphia officials.   According to Fina’s lawsuit, he immediately informed Kane that she could not oversee the investigation because she had a conflict of interest.  According to Fina, the investigation could potentially implicate Joshua Marrow, a friend and former campaign employee of Kane’s.

Kane disagreed with Fina and immediately suspended the investigation.  She publically claimed that the investigation run by Fina had improperly targeted minorities and, as such, was discriminatory and could not be prosecuted.  For their part, Fina and the other plaintiffs made statements critical of Kane and denying that the investigation was racially motivated or flawed.

Around the same time, Kane began her investigation into the Sandusky prosecution.  A report summarizing the inquiry into the Sandusky investigation was completed in May 2014. The same day the report was released publically, Kane made public statements claiming that Fina and the other plaintiffs improperly delayed the prosecution of Sandusky and, as a consequence, Sandusky had an opportunity to molest two additional minors.   In response, Fina held a press conference where he maintained that Kane’s investigation was a sham and the report was false. 

Fina’s Complaint alleged that in response to his criticisms, Kane launched a retaliatory conspiracy to besmirch his record.  Fina claimed that Kane illegally leaked confidential grand jury records from a 2009 grand jury investigation into the former head of the Philadelphia chapter of the NAACP, J. Whyatt Mondesire.  That grand jury investigation ended without indictment.  Kane believed the grand jury records she leaked proved that it was Fina’s misconduct that resulted in the failed grand jury investigation.  The grand jury materials were turned over to Daily News Reported, Christopher Brennan.  Brennan, in turn, used the material to write a story accusing Fina of impeding and improperly terminating the investigation into Mondesire.   

The problem with leaking confidential grand jury information is that it is illegal. When Fina learned of the leak, he reported it to the Supervising Judge of the grand jury.  Fina was then called as a witness into a grand jury investigation into the leak.  Before he could testify, however, he was confronted by one of Kane’s employees who, allegedly, attempted to physically intimidate him.

Kane was criminally charged with leaking the grand jury information and is awaiting trial.  However, according to Fina’s Complaint, Kane further retaliated against him by kicking off the porn-gate controversy http://wp.me/p6DFYU-2gIn short, according to the Complaint, Kane tipped off reporters that Fina had received pornographic and otherwise inappropriate emails on his work computer. Fina’s Complaint alleged that Kane “selectively” released a portion of emails to emphasize his role in the scandal. 

According to the Complaint, Kane also appeared on CNN and suggested that she had uncovered emails to and from state employees that were pornographic, racist and misogynistic. During the interview she suggested that some of the emails contained child pornography, an allegation her office later retracted.

Fina and his fellow plaintiffs alleged that Kane’s conduct in: (1) criticizing the bribery investigation as racially motivated; (2) leaking grand jury material; (3) releasing allegedly improper emails was done in retaliation for their public criticisms of Kane’s performance. According to Fina and the other plaintiffs, this retaliation was illegal and violated their First Amendment rights.  Fina and the other plaintiffs also brought claims under state law for defamation.

Judge Bartle dismissed all of the Section 1983 (First Amendment) claims because Kane’s alleged retaliatory conduct was not significant enough to give rise to a lawsuit.  For a public official to be held accountable for retaliating against an employee exercising rights protected by the First Amendment, the retaliation must involve a “threat, coercion, or intimidation intimating that punishment, sanction, or adverse regulatory action will be immediately followed.”  In this case, according to Judge Bartle, Kane’s criticisms of Fina did not involve threats of sanction or punishment.  Rather, according to Judge Bartle:

“Fina was not terminated, demoted, disciplined, or subjected to any other adverse employment action as a result of his criticisms of Kane. Instead, he merely bore the effects of a generalized critique of an investigation in which he took part under a former Attorney General.”

Judge Bartle found plaintiffs’ claim that Kane retaliated against them by releasing emails containing inappropriate and pornographic material absurd, holding that “it would defy logic to conclude that Kane violated the constitutional rights of plaintiffs by bringing to light their use of state-owned computers and email systems to exchange pornography.”

Judge Bartle also dismissed the plaintiffs’ claims for defamation, but without prejudice.  Having dismissed all of the federal claims for retaliation, Judge Bartle declined to retain jurisdiction over plaintiffs’ claims for defamation.  Those claims, presumably, will be brought in state court.

Acknowledging the political back story to the lawsuit, Judge Bartle concluded his opinion by noting as follows:

“In essence, the [plaintiffs’ Complaint] details a long-standing political battle between the Attorney General of Pennsylvania and former high-ranking state officials who served in the administration of her adversaries.  The battle has been hard fought and is not pretty.  Each party, however, has exercised his or her rights under the First Amendment, and there has been alleged no illegal retaliation giving rise to a claim under Section 1983.”

James Goslee is a trial attorney in Philadelphia and can be reached at http://jamiegoslee.com/about/

 

Credit: Darastar, Everystockphoto.com

A Trial Lawyer in Federal Court- Grappling With Pseudo-Law

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Litigation is often compared to sports.  An imperfect analogy, but not a bad one.  There are usually at least two “teams” (the “plaintiff” or “prosecutor” and the “defendant”) and normally a winner and a loser.  The stakes for the players are often high.  In criminal cases, the defendant’s very liberty is at risk.  In the civil context, a monetary award can change the lives of both plaintiffs and defendants.  This is particularly true for plaintiffs who have suffered catastrophic injuries and can no longer work, or are facing enormous medical bills.  Because of the high stakes, both sides prepare zealously for their day in court. Trial is a winner-take-all proposition.  It is an unscripted and unpredictable match, filled with drama, shifting strategy and gamesmanship.  At the end of the trial, 12 random jurors (people with their own unique life experiences, education and inherent biases) will decide the winner and the loser.  The decision is a profound one, often altering the lives of those involved.

In the mist of the inherent unpredictability of litigation, litigants and lawyers take some small comfort in knowing the process is at least governed by rules.  And these “rules” are enforced by a judge, who plays a role very similar to a referee.  The judge makes sure both sides play a fair game.  So although litigants don’t know what the outcome of litigation will be, they at least know how the game is supposed to be played.  And that is important.  Because the thin line separating what is just from what is arbitrary is called predictability.

In large part, our entire legal system is set-up to establish predicable rules.  This isn’t news.  Our nation began with a bunch of colonist fed up with the arbitrary impositions of a monarch sitting on a throne across the Atlantic.  It wasn’t so much the ridiculous taxes that had colonist fuming, it was the fact that they were being imposed out of left field, with no rhyme or reason. How can anyone live that way?  With such uncertainty! We need rules because rules create predictability.  Predictability, in turn, gives us at least a sense of control and allows us to plan our tomorrows.  This isn’t so much a legal principle as it is an element of human nature.

But law is a reflection of human nature.  So for the system to work, the law needs to be predicable. The law does not always need to be right. It does need to be consistent.

Written judicial opinions are a linchpin of our nation’s legal system and are paramount to ensuring consistent, predictable rules.  One important point of a written opinion is to allow a judge to explain and justify his or her legal decision to specific parties in specific cases.  But more important, judicial opinions either create or follow precedent.   They either create new legal rules (for instance in cases where no rule has ever been established or where a prior rule is no longer viable), or they follow the legal rules that have been established in prior cases.  In situations where there is a well-established legal precedent that still works, judges are expected and normally required to follow those established rules.

But let’s be clear. The point of legal precedent is not to create the “best,” the “most practical” or the “most rational” rules.  That’s not it at all.  The purpose of legal precedent is to create consistent rules that are consistently applied. In a simplified sense, legal precedent serves a similar purpose to a rule book in sports. You might believe that a specific rule is not fair or illogical.  You might believe a specific rule is outdated and should be changed (happens all the time in professional sports).  But as long as everyone knows the rules ahead of time and those rules are followed during “the game,” there is at least a rough sense of justice.

But, imagine a situation where two professional sports teams square off in championship game.  Both teams put in a tremendous amount of work to get to this final game and made significant personal sacrifices. This “game,” this moment in time, will impact the future of these players. The outcome is not just about deciding the “winner” and the “loser.”  It is bigger than that.  There are financial stakes, careers and legacies on the line.  No doubt there will be unpredictable moments, key turning points in the match.  Both sides are hoping to play their best and catch a few lucky breaks along the way.  As they walk out onto the field to start the match, neither side knows exactly what is going to happen.  In fact they live every day in a world of stress and uncertainty.  The only comfort these players have is that they know how to play the game.  They may not know the outcome, but they know the rules. And that is something vital.  Crucial.  Because at its core, this “game,” inherently influenced by unpredictability and randomness, has a set of consistent principles that the players can rely upon.  They can plan around these principles! Without them there is only chaos.

The whistle blows, the game starts.  But then something funny happens.  It is not truly funny, it is bizarre and utterly frightening.  The referees who are supposed to be enforcing the rules are acting strangely, unpredictably.  In fact they are not following the rules at all.  They are making arbitrary decisions. They are not enforcing the written rules.  They are making calls that seem to make no sense.  Refusing to blow the whistle when it is clearly appropriate. The players are confused, tentative.  They are not sure what is happening and not sure what to do.  The game being played on the field is completely different than the game they have played throughout their career.  They look to the referees for answers, but get no explanation that makes sense. With no guidance, the players throw out their game plan, ignore the rule book and start doing whatever the referees will allow.

At some point the game ends.  One team is declared the winner.  But everyone understands it is not a just result because the game was not played according to the rules.  It was chaos.  The losing team is demoralized and angry. They were never given a fair shot.  The rug had been pulled out from under them by referees who decided, apparently on their own, to change the rules during the game.  They feel betrayed, but utterly powerless.  Although they are reluctant to say anything critical of the referees, even the winning team will concede that the game was strange and the rulings unpredictable.

The losing team really does not have much of an option.  They can only complain to the league’s front office.  They file a formal petition, a protest, and ask that the game be replayed.  They point out that the referees were acting erratically and did not follow the rules. In fact their protest points out specific examples of the referees’ mistakes and demonstrates beyond question that the mistakes cost them the game.  The response they get is cold comfort.  The league’s front office sends a letter to the losing team and acknowledges that things went a little sideways during the game.  The league concedes that the referees did not apply the rules as written and “yeah, okay, maybe some mistakes were made.”  But, from the league’s perspective, it’s no big deal.  It was only one game after all and no-one is perfect!  Although the referees did not follow the rules in this particular game, it’s not like they created a whole new rule book.  Next year, when the seasons starts again, the same old rule book that had always been in place will still be used. Next year the referees will be expected to follow the old rules – not the random decisions made by the referees in last season’s championship game.  Maybe the losing team got the short end of the stick in this single game, they lost unfairly.  But life is not always fair and in the scheme of things, all will be well.  We don’t need to “replay” the game, because it was only a minor, one-time hiccup.  The letter concludes by “reassuring” the losing team that if other referees in future games start applying different rules, if it becomes a consistent problem, the league will take formal action “to do something about it.”  Until then, let’s all just move along.

The losing team is clearly not satisfied with this response.  “Ok, great,” the team thinks, if it happens again the league will “do something about it.”  But “what about us,” they say?  “We lost a game we should have won!”  “Where is the justice for us?”  What is really frustrating though, is that everyone else in the league seems to be okay with the league’s explanation.  Everyone seems to be okay with the fact that the losing team was treated unfairly.  Justice for one particular team doesn’t matter, as long as unfair treatment does not become a systemic problem.  So long as it does not happen again next year . . .

This fictional scenario seems absurd, even outrageous.  It is an embellishment, to be sure.  But the truth is that our federal appellate courts actually operate in an analogous manner.  Today, federal courts of appeal decide most cases by issuing written opinions that are designated as “non-precedential.”  The idea of a “non-precedential” opinion is to expeditiously resolve specific disputes between litigants without creating precedent.  In fact, these non-precedential opinions contain a specific disclaimer that the decision is not precedential and “does not bind the court.”  In other words, the circuit courts are basically saying, “Okay, well we decided this particular case this particular way.  But, that doesn’t mean we won’t change our mind and do the opposite next time. Carry on and good luck.”

The fundamental problem with this approach are easy to see.  But before discussing the problems with non-precedential opinions, why do these things exist in the first place? Ultimately, non-precedential opinions became a thing because of volume.  Historically, federal appellate court decisions were published in bound books sometimes called “Reporters.” Still are in fact.  In the 1950s and 1960s the volume of appeals began to rise dramatically and, thus, so did the volume of written appellate decisions.  The consequence of this increase in appellate decision was that the official bound Reporter containing appellate court opinions was becoming too large and unwieldy.  The Judicial Conference noted this problem, and also recognized that a lot of the opinions being crammed into the Reporter were redundant and only addressed well-established legal rules.  Because these opinions were not creating new precedent or clarifying old precedent, they really were not all that important.  So why take up space in the Reporter with these run-of-the-mill opinions?

The second issue, also the result of an uptick in volume, was that the number of appellate court judges was not keeping pace with the number of appeals.  So as the number of appeals continued to grow, appellate judges were forced to churn out more and more opinions.  The strain on judicial time and resources started becoming a problem.

So the Judicial Conference came up with a simple solution that would reduce the size of the federal appellate Reporter and relieve the strain on appellate court judges.  Instead of the appellate courts deciding each appeal with a precedential opinion, why not create “non-precedential opinions”?  The idea being that for run-of-the-mill cases, those that do not involve new issues of law or novel issues of fact, why not let appellate court judges dispose of these cases quickly, without much effort? A lot of time and attention is spent on precedential judicial opinions because litigants rely on those decisions and lower court judges are required to follow them (trial court judges are “bound” by the appellate court decision). Precedential opinions have a ripple effect, they impact everyone, not just the parties involved in the specific lawsuit being decided by the appellate court.  But if we allow appellate judges to designate an opinion as “non-precedential,” we can do away with this ripple effect! Other litigants will not be allowed to rely on “non-precedential decisions” and lower courts will not be bound by them.  It’s like it never happened!  These non-precedential opinions don’t really exist!  And if they don’t really exist and won’t impact anyone else, appellate court judges do not need to spend as much time on them.  If they get it wrong, it’s no big deal because the damage will be limited. Plus, these “non-precedential opinions” will not be placed in the federal Reporter so they would not take up valuable space on the bookshelf.  Sounds like a great plan, right?

For their part, the various circuit courts of appeal were really digging this new “non-precedential” opinion deal.  In fact, non-precedential opinions became so popular that the in the past 10 years, the vast majority of all appellate court decisions are non-precedential.  From 2000 through 2008, for instance, approximately 85% of the Third Circuit’s decisions were non-precedential (the Third Circuit includes Pennsylvania, New Jersey and Delaware).

But this “non-precedential” opinion approach has its problems.  In fact it is a quintessential example of a plan looking really good on paper, but having really troubling implications.  One of the prime problems being that non-precedential opinions appear fundamentally unfair.  Another is that non-precedential opinions turn the entire concept of predictable rules on its head.

Let’s start with the issue of fairness.  First of all, allowing judges to “decide” which cases to designate as non-precedential (i.e. not worthy of publication or precedent) gives the unmistakable impression that appellate courts prejudge certain cases before even getting to the merits.  From the outside, it looks like appellate courts are imposing a subjective and opaque classification system. Deciding, without explanation, which cases are worthy enough for publication (and, some would argue, entitled to more time and attention) and which are not. From an optics perspective, this is problematic.  Although it is true that most appeals do not implicate broad social, political or financial concerns, that doesn’t mean they are insignificant.  You can bet that even a “run-of-the-mill” case is vitally important to the litigants involved.  For “the little guy,” when their appeal is dispatched with a short, terse opinion, it looks like the appellate court did not take their case seriously.  It feels like they didn’t get a fair shake.  Perception and all of that.

The length and quality of non-precedential opinions often make matters worse.  I have not done any research on this issue and I don’t have any empirical evidence, data or metrics supporting my position.  However, in my experience as a practicing trial lawyer (including my time as a federal law clerk), non-precedential opinions are often significantly shorter and contain less rigorous analysis than precedential decisions.  There are exceptions of course.  But, in general non-precedential opinions appear hastier. The product of a system valuing quantity over quality.  But is this what we want from our courts of appeal?

Fairness aside, it is difficult to square non-precedential opinions with a legal system that values consistency, predictability and, quite frankly, due process.  As I noted above, at the very top of every non-precedential opinion is a disclaimer that the opinion you are about to read is not binding precedent.  That allows the same circuit court to decide the same legal issues differently in different cases.  Applying the law differently to different people is inconsistent with bedrock constitutional principles, namely due process.  To be fair, our nation is dual sovereignty with 50 states and 13 federal circuits.  So we are bound to end up with inconsistent legal rulings across the federal circuits (called “Circuit splits”) from time to time. But when different circuits decide the same legal issue differently, when there is a Circuit Split, the Supreme Court usually steps in to resolve the inconsistency.

But this is different.  It’s different because non-precedential opinions allow and arguably encourage individual circuit courts to render inconsistent rulings. Simply by designating an opinion as non-precedential, a circuit court is explicitly reserving the right to change its mind next time it hears the same issue.  The practical impact of such a discretionary system is that it provides zero clarity to litigants.  It provides zero predictability.  Today the court of appeals is saying the law is X, tomorrow it is Y, and next week it is Z. It doesn’t matter though, because the opinions are “non-precedential!”  They don’t really count!!!!

Sounds questionable, right?  Sounds fundamentally flawed?  It is, and the inherent problems are exposed when a losing party asks the circuit court for a rehearing en banc.  Normally an appeal to a circuit court is heard and decided by a three judge panel.  On rare occasions, the entire court of appeals for a circuit will decide a case together.  So, for instance, in the Third Circuit there are presently 14 active judges.  Normally a case appealed to the Third Circuit is sent to a panel of 3 judges. This is done for efficiency reasons.  If all 14 judges had to decide every case not a lot of cases would be decided. When a three judge panel makes a decision, the losing party can ask for a rehearing en banc, meaning that all of the judges on the Third Circuit reconsider the case together.

An en banc hearing is extraordinarily rare and requests for a rehearing en banc are almost always denied.   The criteria for granting an en banc rehearing is very limited.  One of the primary factors the Third Circuit will consider in deciding to proceed with an en banc rehearing is whether the panel’s decision “involves a question of exceptional importance.”  Naturally, when a losing party requests an en banc hearing they typically argue that not only was the panel’s decision wrong, but the legal issue is so important it requires an en banc rehearing to fix the mistake.  And here is where the justification and rational for non-precedential opinions begin to break down.   If the winning party files a response to the request for a rehearing en banc, it often argues that the panel’s decision was correct AND even if it is wrong, the decision is not of “exceptional importance.”  Why not? Well if the panel’s decision was non-precedential (and it almost always is), the winning side usually argues that because it is a non-precedential opinion, other courts and other judges don’t need to follow it. In fact they can ignore the decision and “fix it” next time.  In other words, there is no ripple effect.  The panel’s decision may be wrong, but the only person impacted is the guy who lost.  That may be sad for him, it may be unfair, but life is not fair and his unfortunate loss is not “exceptionally important.”

The crazy thing is, this is a legitimate argument.

So what’s the solution?  The easy answer is to do away with non-precedential opinions altogether.  The historic justification for creating non-precedential opinions is dubious and at the very least outdated.  Most attorneys do their case research online these days so ongoing concerns about thick, unwieldy hard-copy Reporters are questionable. Nobody really uses them!  It is also fair to question the argument that non-precedential opinions can be drafted faster and more efficiently than precedential decisions. If the justification is that non-precedential opinions are reserved to routine decisions based on well-established law, well then why can’t these decisions be made just as quickly without assigning a “non-precedential” label?  Shouldn’t appellate judges make the same effort in all cases? Shouldn’t they stand by the quality and clarity of their work?

Look, I get it.  Some will argue there are still advantages to non-precedential opinions.  It’s faster (again I doubt this).  It’s more efficient!  Maybe.  If you value speed and efficiency in appellate review, maybe this is a good thing.  But if you value individual justice, if you value predictability, well, you may have some legitimate concerns.

James Goslee is a trial attorney in Philadelphia and can be reached at http://jamiegoslee.com/about/

Think the First Amendment Applies in Philadelphia? Only if You Know the “Magic Words”

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Free Speech – It’s More Than Just Words

The right to speak freely is the right to live freely.  It is a fundamental aspect of liberty.  Of all the rights protected by the Constitution, freedom of speech is generally regarded as the most powerful guard against oppression.  And for good reason. The right to express thoughts, ideas and concepts without fear of repression or reprisal is quintessential to self-determination and a bedrock principle of democracy.  But it is even more than that.  It is part of our national identity as Americans.  We are free people.  That means, above everything, we can speak freely.

You would think then, that freedom of speech and expression is not a contingent right. You would think that there are no prerequisites or hoops to jump through before we can speak our mind.  It’s not like we have to tell the government we are “opting into” the First Amendment to enjoy its privileges, right?  We don’t need to tell the government we intend to exercise our First Amendment right before we express ourselves, right?  The First Amendment applies automatically, right?????  Well, until last week, you would be correct.  But according to one federal district court judge in Philadelphia, we are all sadly mistaken.

Before discussing Judge Mark Kearney’s remarkable decision last week in Fields v. City of Philadelphia, et. al., it would be helpful to put the First Amendment in context.  The actual text of the First Amendment dealing with speech is pretty short, but its interpretation and application is incredibly broad.  The First Amendment itself states:

“Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Like I said, the text is pretty short. But over the past 200 plus years, Courts interpreting the First Amendment have applied it very broadly.  Which makes sense, because the First Amendment was not intended to apply only to verbal “speech.”  We don’t just communicate through words after all. For instance, shaking your head side-to-side is just as effective as saying the word “no.”  Likewise, whether words are used or not, artwork and artistic performance are quintessential mediums of expression and enjoy the same First Amendment privilege as actual speech.

The point here is that “freedom of speech” does not just apply to speech, but to actions that can reasonable be considered expressive (e.g., shaking your head, pointing a finger, dancing, even remaining silent).  And there is no itemized list of non-verbal communications that can be considered “speech.”  Judges are often tasked with the job of determining when certain non-verbal conduct constitutes expression for purposes of the First Amendment.

Is Videotaping Police Officers Protected by the First Amendment?

Over the past few years, one novel form of non-verbal conduct that has been considered a protected form of expression is citizens taking photographs or video footage of police officers.  This is considered a “novel” form of speech because it really didn’t become a thing until the recent advent of smart phones with built in cameras.  But today, especially with recent controversies involving allegations of police brutality and misconduct, it has become rather common practice for citizens to video tape and photograph police officers.  This is especially true when citizens, right or wrong, are concerned about the conduct of officers making arrests.

Why is recording police in the field considered protected speech? Because, again, the freedom of speech does not just apply to speech.  In the context of recording police officers, there are two important interests at stake for purposes of the First Amendment.  First, the act of recording police officers in action can be considered “expressive conduct” because it can imply criticism or protest of the police action. Moreover, the art of taking photographs (or shooting film) is inherently artistic and requires artistic judgment (ask any professional photographer).  Even more importantly, recording police officers is considered “news gathering” and historically the right of journalist to record what they believe to be newsworthy footage has been afforded First Amendment protection.  The idea being that photographing and/or recording the actions of government officials promotes discussion of government affairs.

Virtually every court that has considered the issue of recording police officers has concluded that it is protected by the First Amendment.  The list includes federal courts of appeal in the First, Fourth, Ninth and Eleventh Circuits.  The First Circuit addressed this issue way back in 2011 and was pretty firm in deciding that the First Amendment protected citizens filming on-duty police officers. In Glick v. Cunniffe, the First Circuit explained its rational as follows:

It is firmly established that the First Amendment’s [reach] extends further than the text’s proscription on laws “abridging the freedom of speech, or of the press,” and encompasses a range of conduct related to gathering and dissemination of information.  . . . An important corollary to this interest in protecting the stock of public information is that ‘there is an undoubted right to gather news ‘from any source by means within the law. . . . The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities fits comfortably within these principles. Gathering information about government officials in a form that can be readily disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of government affairs.’

Fields v. City of Philadelphia

Now, with this background in place, let’s discuss Judge Kearney’s recent decision in Fields v. City of Philadelphia.  The Fields case is actually two similar (companion) cases involving the same issue – does the First Amendment protect citizens filming on-duty police officers?  Judge Kearney concluded that, based on the factual circumstances of the cases before him, it did not.  It’s not so much Judge Kearny’s conclusion that the First Amendment did not apply to the plaintiffs in Fields (which is inconsistent with virtually every other federal decision on the issue) that is troubling.  Rather, it is how he rationalized his decision.

In 2013, Richard Fields was a student at Temple University in Philadelphia.  Allegedly, he was walking down the street and saw about 20 officers standing outside of a house party.  Fields thought it was an interesting scene – seeing so many officers outside a house party – and thought it would make a good picture.  So he took one.  At that point, one of the officer on the scene approached Fields and allegedly stated “do you like taking pictures of grown men” and insisted Fields “move along.”  For his part, Fields didn’t particularly enjoy photographing grown men, and, quite appropriately, declined the officer’s invitation to “move along.”  It is a free country after all! At which point he was arrested and cited for “Obstructing Highways and Other Public Passages.”  The officer also took Fields’ phone and began looking through the photos, but did not delete them.

Not to be outdone by Fields, in 2012 Amanda Geraci attended a public protest against hydraulic fracking outside the Pennsylvania Convention Center.  At some point during the protest, one of the protesters was being arrested.  Geraci took out her phone and began recording the arrest.  According to Geraci, she was “attacked” by an officer who restrained her and prevented her from recording the arrest.  She was not arrested or cited.

Both Fields and Geraci sued the City of Philadelphia.  Both alleged that the Philadelphia Police violated their civil rights and, specifically, the First Amendment.  Both suits came before Federal District Court Judge Mark Kearney.

At the close of discovery, the City filed Motions for Summary Judgment against both plaintiffs, contending that there is no general First Amendment protection for citizens recording on-duty police officers.  As Judge Kearney saw it, the square issue for him to decide was “whether photographing or filming police . . . without challenging the police is expressive conduct protected by the First Amendment.”

Now, for legal observers this case seemed like a slam dunk for the plaintiffs.  As noted above, the issue had already been decided by a number of appellate courts and everyone seems to agree the First Amendment applies.  But Judge Kearney saw things a bit differently and rejected the plaintiffs’ First Amendment claims.  The decision itself is almost certainly wrong, but that’s not the real issue.  The real issue is the legal reasoning Judge Kearney used to reach his conclusion.  In Judge Kearney’s opinion, the First Amendment only protects citizens recording on-duty officers if they first explain to the officers why they are recording them.

According to Judge Kearney,if you are going to photograph the police you need to tell them why you are taking the photograph. The act of photographing or recording alone is not “expressive conduct.”  More specifically, before the First Amendment protections apply, Judge Kearney would require citizens to explain that they are recording police (1) out of protest or (2) because they are critical of the police officers conduct. In other words, if you live in Philadelphia and are interested in the fundamental protections guaranteed by the First Amendment, you literally need to say so.

In theory, Judge Kearney’s decision is difficult to reconcile with . . . well…the whole concept that the First Amendment is a fundamental, inalienable right.  But the real, practical problem (and one I don’t think the Judge intended) is that the decision in Fields makes the First Amendment contingent; It only applies if a citizen can explain to a police officer why it applies. That cannot be the law.

Why not?  Well, let’s have some fun with this. With the recent passing of Justice Scalia, the Supreme Court lost its lone strict constructionist.  From a strict constructionist’s perspective, nowhere in the First Amendment does it say that the right to free speech is dependent upon a citizen’s ability to explain why the First Amendment should apply.  The Constitution does not put the burden on citizens to invoke guaranteed rights.  If it did, those rights would not be guaranteed, they would be contingent.

Another practical problem with the Fields approach is that it assumes (and really requires) that (1) all citizens know their Constitutional rights and (2) understand that to invoke those rights when filming police officers, they need to utter magic words protesting or criticizing the police (god help anyone unable to speak or with laryngitis!).  With respect to uttering words of protest or criticism towards police, if anything grafting such an arbitrary prerequisite onto the First Amendment would only serve to inflame or increase tensions between on-duty officers and the citizens recording them.  It really doesn’t make much sense.

To be fair, the line between traditional conduct (not protected by the First Amendment) and expressive conduct (protected by the First Amendment) is not always clear.  And whether conduct can be considered “expressive” is often in the eye of the beholder. To Judge Kearney’s credit, he recognized and acknowledged that his opinion in Fields contradicted similar decisions in other Circuits. Judge Kearney was not bound by any precedent in the 3rd Circuit and had the authority and the responsibility to decide the case on the facts before him.

But at the end of the day the Fields decision was wrongly decided.  Constitutional rights are considered “guaranteed” for a reason.  The Fields decision would fundamentally change the centuries of law by putting a new burden on plaintiffs’ to explain why they are entitled to constitutional rights before those rights can be invoked.  Such a burden is, on its face, inconsistent with concepts of liberty and freedom and frankly, unworkable.

It seems inevitable that the Fields decision will be overturned by the 3rd Circuit.  But until then, if you are in Philadelphia and get the urge to take photographs of police officers, best to play it safe and yell “protest” and “I am critical of police” while taking your pictures.

James Goslee is a trial attorney in Philadelphia and can be reached at http://jamiegoslee.com/about/

Photo Credit: Kristy Pargeter, Dreamstime Stock Photos

Reality Check – State Governors Have No Authority to Exclude Syrian Refugees

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In the aftermath of the recent terrorist attacks in Paris, there has been widespread debate as to whether the United States should accept Syrian refugees.  Although the investigation into the Paris attacks is ongoing, it appears that some of the terrorist involved in the attack posed as refugees in order to enter the country.  The fear of a similar “Trojan Horse” attack in the United States has clearly struck a nerve and in some respects, divided the Country. Some argue that the United States was founded by immigrants, has a long history of welcoming and protecting refugees and should not let reflexive and irrational fear influence our social philosophy or domestic policy. Citing the Paris attack, others argue that until we have an effective and proven method of vetting Syrian immigrants, we should not accept them within our borders.

A number of state governors have recently joined this increasingly heated debate.  For instance, Texas Governor Greg Abbott and Massachusetts Governor Charlie Baker, have explicitly stated that their respective states will not accept any more Syrian refugees.  Louisiana Governor Bobby Jindal has gone so far as to issue an Executive Order to the State’s executive agencies, requiring the agencies to use all lawful means to prevent the resettlement of Syrian refugees within Louisiana. In contrast, Pennsylvania’s Governor Tom Wolf has welcomed the resettlement of Syrian refugees within the State.

Lost among the rhetoric as to whether the United States should or should not accept Syrian refugees, is the fact that state governors have absolutely no legal authority to prevent Syrian refugees from settling within their respective borders.  Indeed, the law on this point is crystal clear.   The United States Constitution and federal law vests all authority for accepting foreign refugees with the federal government, not the states. Any action taken by states to prevent refugees from settling within their borders, whether by executive order (as in the case of Governor Jindal) or by legislation would violate the United States Constitution and almost certainly would be struck down by a federal judge.

Article I, section 8 of the United States Constitution provides that the federal government (not state governments) shall have sole authority to “establish a[] uniform Rule of Naturalization.”  This provision of the Constitution has been broadly construed by the United States Supreme Court and has been interpreted to preempt the majority of state laws dealing with immigration. In other words, state governors and legislators are not allowed to pass or enforce laws that deal with immigration or naturalization.  This includes laws seeking to keep refugees out.

The United States Supreme Court addressed this issue a few years ago when Arizona attempted pass and enforce laws designed to be tough on illegal immigration.  Justice Kennedy, writing for the majority in Arizona v. United States, cogently explained the Constitutional authority and rational for vesting the federal government (as opposed to the various states) with the sole right to regulate immigration:

The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.  . . . This authority rests, in part, on the National Government’s constitutional power to “establish an uniform Rule of Naturalization,” U.S. Const., Art. I, § 8, cl. 4, and inherent power as sovereign to control and conduct relations with foreign nations. . . .

The federal power to determine immigration policy is well settled.  Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. …

It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate states.

In light of the Constitutional authority granting the federal government sole authority to deal with immigration, any state law or executive order seeking to keep foreign refugees out would be preempted by federal law.  Specifically, any attempt by states to exclude refugees would be preempted by the federal Refugee Act of 1980, which permits the President to admit refugees facing “persecution or well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”

So what does all of this mean for Syrian refugees?  It means that if state governors actually attempted to follow through with their threats and bar Syrian refugees from entering their states, their actions would be illegal and certainly overturned by the federal courts.

James Goslee is a trial attorney in Philadelphia and can be reached at http://jamiegoslee.com/about/

 

Photo Credit: Kristy Pargeter, Dreamstime Stock Photos

How Using Facebook Can Get You Arrested (Illegally)

Internet

One of the many unexpected consequences of mainstream social media use has been a substantial uptick in civil lawsuits.  This primarily includes a growing number of lawsuits for defamation and libel.

Obviously, social media provides us with a remarkable (and limitless) forum to publicize our thoughts, feelings and opinions on any subject, at any time.  Occasionally, social media users write negative comments or reviews about other people or businesses.  If these comments qualify as defamatory, unwitting Facebook users can find themselves staring down a credible lawsuit for libel.

Although social media users have been subject to an increasing number of civil lawsuits, it is still relatively rare for users to get arrested or criminally charged for what they post.  But that is exactly what happened to Wisconsin man who took to Facebook to criticize a local Wisconsin police department for engaging in what he believed to be racial profiling.

By way of background, in the summer of 2012, police officers from the Village of Arena in Wisconsin were searching neighborhoods for several African-Americans teens suspected of robbery.  Apparently, a local resident came upon the suspects and detained them at gun-point until the police arrived to make an arrest.

After the arrests were made, a Village of Arena police officer posted a “thank you” to local residents on the police department’s Facebook page.  The “thank you” was directed to local residents for their “assistance” in apprehending the suspects.  A number of Village of Arena residents were not happy with the arrests or how the police department conducted searches.  For instance, one Facebook user posted the following reply to the Officer’s “thank you”:

You’re so very welcome. Thanks for searching my house and accusing me of harboring so called dangerous fugitives, that I don’t even know….wasting time searching peoples houses when the ‘fugitives’ were no where near there…and since when is it ok for a resident to point a gun at a couple if KID’S heads? If that was anyone else’s kids pretty sure it would be a big deal. Oh wait though, they were black so It’s ok. Thanks to everyone that made our town look like nothing but a racist, prejudice place to live..I’m embarrassed to say I’m part of that kind of community. If I were black I’d run too.

Thomas Smith also posted a reply to the Officer’s “thank you.”  His reply was not exactly subtle.  It was essentially a profanity laced screed that accused the Village of Arena police department of being racist.

The Officer who posted the “thank you” reportedly read Smith’s posts and deleted it. A few days later, Smith received a phone call from the Village of Arena police department asking if he had in fact written the commented posted on the police department’s Facebook page.  He confirmed that he did and that he “meant it” and “didn’t regret it.”

The Officer who posted the “thank you” reportedly requested that Smith be arrested for, among other things, disorderly conduct and unlawful use of computerized communications systems.

As I have discussed previously, if the First Amendment serves any purpose, it is to protect a person’s right to criticize (however in-artfully) the government. (see https://legalviewpoints.wordpress.com/2015/09/16/writing-obscenities-on-a-speeding-ticket-is-protected-speech-under-the-first-amendment/).  But remarkably, Smith was arrested, charged and convicted of both counts.  He raised the First Amendment as a defense in his criminal trial.  However, the prosecutors argued and the trial judge agreed that his comments were “fighting words.”  The “fighting words” doctrine is a dubious and seldom used exception to the First Amendment right of free speech.

Smith appealed his conviction and it was overturned on appeal.  The Appellate Court correctly determined that Smith’s criticism of the Village of Arena police department fell well within the protections afforded by the First Amendment.

After the charges against Smith were dismissed, he filed a civil rights lawsuit against the Officer who directed his arrest and the Village of Arena.  That lawsuit recently settled.  You can read the complaint here:

http://cdn.arstechnica.net/wp-content/uploads/2015/09/smithsmithsuit.pdf.

Although the Appellate Court eventually vacated Smith’s arrest, it is remarkable that he was arrested to begin with.  It is even more remarkable that he was convicted.  Remarkable, but maybe not surprising.  Although social media is an incredible new forum for expression, its mainstream use is relatively new in the scheme of things.  Hopefully as more of these cases work their way through the criminal justice system the judiciary will create enough precedent to firmly establish a citizen’s right to criticize the government via social media.

When the Law Makes No Sense

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Not all laws are good laws.  Not all laws are fair.  Not all good laws are applied fairly.  But normally there is at least some logic behind laws drafted and adopted by state legislatures and enforced by competent, adult prosecutors sworn to uphold the Constitution.  I say “normally” because on rare occasions you may hear a story of a ridiculous law struck down as unconstitutional or a rogue prosecutor missapplying an otherwise valid law.  But then there is the case of Cormega Copening, a sixteen year old North Carolina teen who was charged with multiple felony counts for sexually exploiting a minor.  Copening, you see, was caught with naked pictures of a minor on his cell phone.  Here is the thing though, the naked pictures were of HIMSELF.

I had to read the Copening case multiple times before I ultimately satisfied myself it was not an elaborate internet hoax.  Unfortunately it is true and it is unequivocally outrageous.

Last year the Cumberland County Sheriffs Office in North Carolina was investigating a claim of statutory rape.  As part of the investigation, students at Douglas Byrd High School in Fayetteville had their cell phones searched.  Copening was one such students and the police found naked pictures of himself on the phone.

In what feels like an episode of the Twighlight Zone or a bad remake of the Matrix, Copening was actually charged with a felony for exploiting a minor . . . the minor being himself.  Under North Carolina law it is illegal to take naked photographs of a minor child for purposes of sexual exploitation.  That part of the law is completely rational.  Under the law, a 16-year-old is considered a minor, which is also rational.  However, a 16-year -old who is accused of sexually exploiting a minor can be charged as an adult . . . and this is where things flew off the track for Cormega.

Because Cormega was only 16 years old when the pictures of himself were taken, he was considered a minor capable of being sexually exploited. But as the 16-year-old who took the photos he was also technically old enough to be charged as an adult for sexually exploiting a minor.  “Okay,” you may be thinking to yourself, “but no rational person or government would even think about charging a 16-year-old as an adult for exploiting himself as a minor.”  Right?  Right?  But that is exactly what happened to Cormega.

He was arrested and charged with a felony for sexually exploiting a minor, the minor being himself.  Earlier this month Cormega pled guilty to a lesser charge. Even so, you have to question how something like this could ever happen in a rational world.  How can a teenager exploit himself for having naked pictures of himself on his cell phone?  How is that any different than looking at himself in the mirror?  The answer is that it doesn’t make any sense whatsoever completely illogical and frankly embarrassing. Dont believe me?  You can read more about it here:

http://www.theguardian.com/us-news/2015/sep/20/teen-prosecuted-naked-images-himself-phone-selfies

Pennsylvania Supreme Court Suspends Attorney General Kathleen Kane’s Law License Via Emergency Order

City Hall

In a surprising move (shocking really), the Pennsylvania Supreme Court entered a one page Order today temporarily suspending Attorney General Kathleen Kane’s law license.  Although the Order temporarily suspended Kane’s license to practice law, it specifically stated that it “should not be construed as removing [Kane] from elected office.”   The full Order can be found online here: http://www.pacourts.us/assets/opinions/Supreme/out/2202DD3%20-%201023669815398023.pdf?cb=1

Kane was indicated earlier this summer and is currently facing criminal charges in Montgomery County for allegedly leaking secrete grand jury material.  The Montgomery County District Attorney has alleged that Kane illegally leaked grand jury material in order to embarrass a fellow prosecutor she viewed as a political opponent. Kane has vehemently denied any wrongdoing.

Today’s surprising Order was entered in response to an action initiated by the Pennsylvania Attorney Disciplinary Board to suspend Kane’s law license.  In August, the Disciplinary Board filed a Complaint seeking to suspend Kane’s law license because of her “egregious conduct” in leaking the grand jury information.  The Disciplinary Board also claimed that because Kane is currently a criminal defendant, there “is a concurrent conflict of interest for Kane to continue practicing law while being prosecuted for violating the very law she is was vested with the power to enforce.”

Kane has maintained that the Disciplinary Board’s efforts to suspend her law license violates her constitutional right to due process.  In other words, Kane believes a jury of her peers must convict her of leaking grand jury material before her license can be suspended.

Today’s Supreme Court Order temporarily suspending Kane’s license is extremely surprising.  Even more so considering the Supreme Court went out of its way to make it clear that the Order was not meant to remove her from office. The upshot here is bizarre – Pennsylvania’s current Attorney General, its “lawyer in chief,” cannot practice law.  The ramifications of this Order on Kane’s ability to fully run the Attorney General’s Office are unclear, but it is safe to assume that this will not be the last word from the Supreme Court.

Updates to follow.