Another Court Rules in Favor of Freedom to Record the Police

In a February 2016 decision, a federal judge broke from all the other courts in the country that had acknowledged a First Amendment right to record the police. The judge essentially held that people who don’t announce that they oppose what police officers are doing don’t have the right to observe and photograph those officers. (Here’s the opinion, and here’s our post on it.)

In July of 2017, though, a panel from the U.S. Third Circuit Court of Appeals reversed that federal judge. The court unequivocally endorsed the position that so many others had taken—that there is a First Amendment right to record police activity in public. Noting that “[e]very Circuit Court of Appeals to address this issue (First, Fifth, Seventh, Ninth, and Eleventh)” had agreed with the proposition, the court reiterated what’s becoming an increasingly clear principle of law:

“[T]he First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public.” (Fields v. City of Philadelphia, No. 16-1650 (3d Cir. 2017).)

Tiger Woods Arrested on DUI Charges

On May 29, 2017, professional golfer Tiger Woods was arrested on suspicion of driving under the influence (DUI). Police arrested Woods in Jupiter, Florida, just miles from his Jupiter Island home.

According to the arrest report, at about 2:00 a.m., police found Woods parked in his Mercedes on the side of the road, engine running. Woods was allegedly stopped in the right traffic lane, with the passenger side of his car partially blocking the bike lane. On the driver’s side of the car, police observed two flat tires and damaged rims. Police also noticed damage to the front and back bumpers. Woods’ brake lights were reportedly illuminated and his right turn signal flashing.

The officer who approached the vehicle said he found Woods asleep at the wheel. When the officer shined his flashlight into the car, Woods reportedly opened his eyes. The officer noted that Woods had slurred and speech and was slow to answer questions and provide his driver’s license, registration, and insurance. At some point, Woods allegedly told police he was coming from L.A. on his way to Orange County.

Woods completed several field sobriety tests (FSTs), including the three “standardized” FSTs. The standardized FSTs are roadside tests—the horizontal gaze nystagmus (HGN), walk and turn, and one-leg stand—that the National Highway Traffic Safety Administration (NHTSA) has deemed reliable indicators of impairment. According to police, Woods had problems following officer instructions and performing the FSTs.

Woods denied drinking or illegal drug use but admitted he had taken prescription medications. The results of two breath tests confirmed that Woods had no alcohol in his system. Woods also provided a urine sample, which will presumably reveal what intoxicating substances may have been in his body. Media reports indicate the medications Woods was on may have included the painkiller Vicodin. In a statement issued after his arrest, Woods reiterated the incident didn’t involve alcohol but rather was the result of “an unexpected reaction to prescribed medications.” Woods explained: “I didn’t realize the mix of medications had affected me so strongly.”

So where does Woods stand legally?

Tiger was released from jail on his “own recognizance” several hours after his arrest and is due in court for his arraignment on July 5, 2017.

Woods will likely face DUI charges. Florida’s DUI laws cover drunk and drugged driving. A motorist can be convicted of a drug-related DUI for driving or being in “actual physical control” of a vehicle while under the influence of certain intoxicating chemicals or any controlled substance. A driver is considered “under the influence” if affected by the substances ingested “to the extent that the person’s normal faculties are impaired.” And being in “actual physical control” generally means the driver is in the vehicle and has the capability of operating it. (Fla. Stat. Ann. § 316.193 (2017).)

Let’s look at how the law might apply to the facts of Tiger’s case. Police didn’t see Woods driving. But he was arguably in actual physical control of his car because he was sitting in the driver’s seat with the car running. And there’s evidence of impairment: Woods apparently crashed his car, had slurred speech, and performed poorly on FSTs. However, as of yet, it’s unclear what substances Woods had in his system. To be convicted of DUI, the prosecution must show Wood’s impairment was the result of ingesting one of the substances specified in the DUI law. Unfortunately, perhaps, for Woods, the list of qualifying drugs and controlled substances is extensive and includes Vicodin—a medication Woods was allegedly taking.

If convicted of DUI, Woods faces up to six months in jail, $500 to $1,000 in fines, and a six-month to one-year license suspension. (Fla. Stat. Ann. § 316.193 (2017).)

(Read more about the consequences of a first-offense DUI in Florida.)

When Will You Personally Know an Immigrant Affected by New Enforcement Regime?

Someone should create one of those “seven degrees of separation” rules with regard to immigrants—that is, an indication of how many close friend-or-family ties away each person in the U.S. is from someone whose run-in with immigration authorities has them thinking, “What?! Not him/her! Is that really legal?”

Such exclamations and protestations have been common in many recent deportations from the United States. Even people who think mass removal is a good idea in general often want to carve out exceptions when they realize it’s going to be applied to a friend or long-time community member.

For instance, The New York Times ran a story called “He’s a Local Pillar in a Trump Town. Now He Could Be Deported.” It described how a town in which the majority voted for Trump was shocked when the manager of a local Mexican restaurant was arrested for being undocumented.

The article quoted one town resident as saying, “I think people need to do things the right way, follow the rules and obey the laws, and I firmly believe in that . . . But in the case of Carlos, I think he may have done more for the people here than this place has ever given him. I think it’s absolutely terrible that he could be taken away.”

For people within my own circle, that “not him” moment came when news surfaced about our long-ago high school theater director, Ruben Van Kempen—who came to the U.S. from Holland the year that most of my classmates were born—being refused Social Security retirement benefits because “The Department of Homeland Security is unable to verify the immigrant document you submitted as evidence of your lawful alien status.”

That’s bureaucratic error piled onto bureaucratic error—not only were the records missing, but Van Kempen had become a U.S. citizen decades ago, meaning that “lawful alien” is no longer the appropriate way to describe him. To suggest that he’s NOT lawful means that he’s undocumented, which is of course grounds for deportation. But fixing that error should be easy, right?

Not in the current harsh immigration enforcement regime. Van Kempen’s case turned into a nightmare of calls to Social Security and the Department of Homeland Security, neither of which agencies would offer help or answer his questions—until there was public outcry and his Congressional Representative stepped in and started asking questions.

But as Van Kempen told the Seattle Times, “I would still be considered an alien in my own country, and my file would still be sitting there buried, if a friend hadn’t thought to contact the Seattle Times . . . But your newspaper can’t profile every immigrant with a problem. That leaves me very unsettled.”

GOP Candidate Greg Gianforte Cited for Misdemeanor Assault on the Eve of Montana’s Special Election

On May 24, 2017, the Gallatin County Sheriff cited Republican congressional candidate Greg Gianforte with misdemeanor assault. (Read the press release.) The citation followed an incident at the GOP candidate’s campaign headquarters in Bozeman, Montana in which Gianforte allegedly attacked Guardian reporter Ben Jacobs. According to Jacobs, Gianforte “body slammed” him after becoming irritated by a question about the Republicans’ health care bill. A Fox News reporter who witnessed the episode said Gianforte grabbed Jacobs by the neck and slammed him to the grounds. Gianforte’s spokesperson issued a statement that portrayed Jacobs as the instigator of the scuffle.

(See the Guardian’s article about the alleged assault, which includes an audio recording of the incident.)

After conducting an investigation, the Gallatin County Sheriff’s Office concluded there was probable cause to believe Gianforte was guilty of misdemeanor assault. Gianforte must appear in court for the citation between now and June 7, 2017. If convicted, Gianforte faces up to six months in jail and/or a maximum $500 in fines. (Mont. Code Ann. § 45-5-201 (2017).)

Montana voters go to the polls today—May 25, 2017—to decide who will fill the House of Representatives seat left vacant by former Congressman Ryan Zinke’s appointment as U.S. Interior Secretary. It’s unclear how Gianforte’s last-minute run-in with the law might affect his chances of prevailing over Democratic candidate Rob Quist in the close special election contest.

Wondering What These ICE “Check-Ins” Are That Are Getting People Deported?

To read the press of late, you might think that every undocumented immigrant in the country regularly checks into an office of Immigration and Customs Enforcement (ICE). The news aspect of this is that such check-ins are increasingly leading to the person’s deportation (removal) from the United States.

Anyone following the news reports has probably seen statements like these:

  • “In cities like New York and Baltimore, fear of ICE check-ins—which once felt customary for non-violent undocumented immigrants—are now causing waves of apprehension.” (The Chicagoist, April 18, 2017.)
  • “. . . numerous faith-based groups, immigration activists . . . and local politicians rallied in support of Ragbir during his “check-in” with ICE . . . What had been fairly routine in past years now seemed ominous. Ragbir, like dozens of others every day, did not know when he entered the Lower Manhattan building if he would see his family again.” (The Villager, March 27, 2017.)
  • “Immigrants—many of whom have lived and worked in the country for decades—have been arrested at home, at work, and at routine check-ins with ICE officials.” (Mother Jones, March 14, 2017.)

All these reports do a good job at conveying the fact that something that was once routine is now a frightening gamble and often a direct pathway to departure from friends, family, and job.

What they don’t convey as well is that the “routine” aspect applies only to a limited number of individuals; in some ways, the cream of the crop. Most of them are people who happened to have been caught up in the immigration system in the past and were specifically and individually deemed low priorities for deportation.

First, a bit of history. Immigration enforcement authorities in this country have rarely if ever received the amount of funding from Congress they’d like. So, they use “prosecutorial discretion” to pick and choose who to try to deport.

Past administrations focused on removing people who had criminal records or presented security risks. Lowest on the priority list were productive members of society who had lived here for a long time with no criminal records and who had family, community, church, employment, and other ties.

Deciding who is and who isn’t a high priority is not a casually made decision. In many cases, an undocumented immigrants who got arrested by ICE had to  supply extensive documentary evidence of their U.S. ties and good character before ICE would agree to stop pressing forward with their case.

If successful, the undocumented person didn’t obtain the same rights as, say, a green card holder. They were put into a sort of limbo status. Efforts to remove them were put on hold, on the condition that they continue to keep up their high standards of behavior and check in with ICE on an annual basis. The threat of removal is and was always there.

So, it’s only minority of undocumented immigrants in the U.S. who are required to check in with ICE. For Americans who advocate the deportation of every last immigrant in the U.S., the natural conclusion is, “Well, arresting them at their check-ins is at least a starting point.”

But immigration advocates point out the absurdity of Trump claiming that his administration would focus on deporting “bad hombres,” then turning around and deporting the people lowest on the enforcement priority list–the people who were already known to the authorities, and being tracked and monitored. For now, anyway. Because, as John Amaya, former deputy chief of staff at ICE under President Obama, told WNYC News, “I don’t think they want to be detaining individuals–bringing them in during the regular check-ins only to detain them and remove them–because then no one’s going to be reporting. . . It would be a huge burden, and I think that’s why we want to make sure people do report and trust law enforcement.”