Just over a year after a New Jersey judge threw out a lawsuit on the basis that cops shouldn’t be expected to know the law when it comes to recording them in public, a panel of appellate judges threw the suit back in his face, ordering him to review the case along with the First Amendment.
The suit involves a filmmaker named Kelly Ramos who was harassed repeatedly and eventually arrested by Trenton police officer Herbert Flowers in 2006 while working on a documentary about a violent street gang.
The trial judge, who is not named in the decision or the article, based his decision on recent case law, according to Friday’s appellate ruling:
The motion judge determined that Flowers was entitled to qualified immunity on the Civil Rights Act claims, because he found there was no well-established right to videotape the police at the time of the incidents involving Flowers. He relied primarily on Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010). In that case, the Third Circuit concluded that “there was insufficient case law establishing a right to videotape police officers during a traffic stop to put a reasonably competent officer on ‘fair notice’ that seizing a camera or arresting an individual for videotaping police during the stop would violate the First Amendment.” Id. at 262. With regard to the May 12, 2006 arrest, the judge held that Ramos’s guilty plea demonstrated his acknowledgement of probable cause for his arrest. The judge entered an order granting summary judgment and dismissing the complaint.
But the appellate court based its decision on the First Amendment.
We now turn to the issue of whether Flowers’ alleged interference with Ramos’s efforts to create a documentary concerning gangs implicated Ramos’s constitutional rights under either the federal or state constitution, or both.
The First Amendment to the United States Constitution provides, in pertinent part, as follows:
Congress shall make no law . . . 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.
In Mills v. Alabama, 384 U.S. 214, 219, 86 S. Ct. 1434, 1437, 16 L. Ed.2d 484, 488 (1966), the United States Supreme Court noted that the language of the First Amendment “specifically selected the press, which includes not only newspapers, books, and magazines, but also humble leaflets and circulars, see Lovell v. Griffin, 303 U.S. 444[, 58 S. Ct. 666, 82 L. Ed. 949 (1938)], to play an important role in the discussion of public affairs.” The First Amendment has also been interpreted to protect the media’s right to gather news. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576, 100 S. Ct. 2814, 2827, 65 L. Ed.2d 973, 989 (1980); Branzburg v. Hayes, 408 U.S. 665, 681, 92 S. Ct. 2646, 2656, 33 L. Ed.2d 626, 639 (1972) (“[W]ithout some protection for seeking out the news, freedom of the press could be eviscerated.”).
Here is a detailed narrative from the appellate decision of what took place.
Ramos contends that he had five encounters with the Trenton Police during the time he was filming the activities of various members of the “Sex Money Murder” Bloods sect, one of the largest Bloods gang units in Trenton. Three of the encounters involved Flowers. He alleges that Flowers’ actions during those three encounters interfered with his constitutional rights to free speech and assembly, as well as his right to be free from unlawful police search and seizure.
On May 12, 2006, Ramos attended a birthday party in Trenton. Several known gang members were also in attendance. They were socializing and drinking alcohol “out front of private property.” When the Trenton police arrived at the scene, Ramos was filming and “had positioned his vehicle in such a way so that its headlights shone on the participants of the party.” Ramos explained what he was doing to the police. Nevertheless, Ramos was arrested and charged with obstructing traffic, contrary to N.J.S.A. 39:4-67; improper parking, contrary to N.J.S.A. 39:4-135; leaving an unattended vehicle running, contrary to N.J.S.A. 39:4-137; and obstructing a public passage on a sidewalk, contrary to N.J.S.A. 2C:33-7.
In another incident that occurred shortly thereafter, Ramos was “filming on a public sidewalk and creating no hazard or interference with anyone else. Trenton Police Officers arrived at the scene . . . and very sternly demanded [that Ramos] turn his camera off.”
On May 20, 2006, Ramos was driving in Trenton, “again in the process of obtaining video for the documentary.” Police officers pulled him over when they noticed that he was filming. They cited Ramos for improperly parking within an intersection, contrary to N.J.S.A. 39:4-138(a). According to Ramos, he was only parked within the intersection because he had been pulled over by the police.
On July 2, 2006, Ramos arrived at a Trenton park where police officers were “shutting down” a barbeque attended by a large number of known gang members. Ramos started filming the interaction between the police and the gang members. He was asked by the police to move across the street, but allowed to continue filming once he did so.
Approximately ten minutes after Ramos had relocated, Flowers approached him and told him that “something would happen to him” if he did not stop filming. Flowers also told him that he was going to investigate his “so-called” documentary. Nevertheless, Ramos continued filming from across the street and only stopped when he had finished.
On July 6, 2006, the Trenton police responded to a call from the Trenton Public Library to investigate a meeting being held by known gang members on its premises. One of Ramos’s sources gave him a tip that he should go to the library to film the events as they unfolded. Once Ramos arrived at the library, Flowers told him he was interfering with a police investigation, adding: “I am sick of you already, I am sick of seeing you, I do not want to hear you anymore, you are not allowed here anymore.” Ramos asserts that Flowers grabbed his video camera and put it in his car. Flowers then told Ramos: “If I see you again . . . I am locking you up and I don’t care what for . . . you better not let me see you again . . . watch what happens.”
Ramos contends that he stopped working on his documentary after the July 6 encounter at the library because he feared Flowers would arrest him for no reason and ruin his life. Ramos subsequently licensed some of his gang footage to the History Channel, for which he was paid. He does not allege that he suffered any emotional distress, physical harm, or damage to his property.
In January 2007, the citations Ramos received on May 12, 2006 were dismissed, with one exception. The citation for obstructing a sidewalk was downgraded to a city ordinance violation, after which Ramos pled guilty and paid a fine.
The Bergen Record picks up the narrative from there:
Though Ramos eventually pleaded guilty to violating a lesser charge in connection with the May arrest, he sued Flowers – along with the city of Trenton, the police department and the police director – in 2008, alleging violations of the New Jersey Civil Rights Act of 2006.
A trial judge threw out the case, saying that Flowers was protected from suits while acting as a police officer because he couldn’t have known that Flowers was permitted to film police activity.
The appellate judges disagreed, noting that police officers do enjoy immunity from most lawsuits but writing that “a reasonable police officer in 2006 could not have believed he had the absolute right to preclude Ramos from videotaping any gang activities.”
“A documentary about a subject of public interest, such as urban gangs, is a form of investigative journalism,” the court added. “For that reason, those activities are protected by the First Amendment to the United States Constitution and by the New Jersey Constitution.”
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CARLOS MILLER’S LEGAL DEFENSE FUND
I am immersed in a legal case where I not only want to clear my criminal charges stemming from my arrest in January, but I want to sue the Miami-Dade Police Department for deleting my footage, which I was able to recover.
My goal is to set some type of precedent to ensure this does not happen as often as it does today where cops simply get away with it.
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