TOUGH TO BE PRIVATE IN PUBLIC

A Dallas based federal court recently denied a motion for summary judgment filed by the Dallas Area Rapid Transit system in a case alleging that a DART officer improperly arrested a citizen journalist who refused to stop video-taping a man receiving medical treatment on DART property.

The journalist is Avi Adelman, a persistent observer of police activity in the Dallas area.  It’s likely that the local cops find him annoying.  Which is fine.  What’s not fine is acting out on their irritation by using their police power.  And that seems to be what happened here.

Here’s a quick summary of the events that led to the lawsuit, according to DART’s summary judgment motion:

On Tuesday, February 9, 2016 at approximately 8:00 p.m., Plaintiff Avi Adelman (“Adelman”) was listening to his police scanner and heard a call for Dallas Fire Rescue (DFR) to respond to a K2 overdose victim at Dallas Area Rapid Transit’s (“DART”) Rosa Parks Plaza (“RPP”).  Adelman decided to go to RPP and noticed a man lying on the ground being attended by DFR paramedics.  Adelman believed this incident might be of public interest and began to photograph the scene. For several minutes, Adelman photographed the incident and took 161 photos and 4 video clips.

DART Police Officers Branch, Robert Craig (“Craig”) and Elmar Cannon (“Cannon”), were in full uniform, on duty and on foot patrol when they responded to a call for service of a man passed out, lying on the ground at the RPP, near the West End station, in downtown Dallas, Texas. (DART App., p. 20). At the scene, one of the paramedics said to the DART officers “there’s a man taking pictures” and Branch walked over to the man with the camera.

Officer Branch approached Adelman because of the perimeter she established for this incident and because she mistakenly believed the Health Insurance Portability and Accountability Act of 1996 (HIPPA) applied in this situation. However, the transcript excerpts will show that after the initial encounter, Branch asked Adelman to leave DART property nine times and he refused, thereby establishing she had arguable probable cause or was reasonably mistaken with the existence of probable cause when she arrested Adelman for criminal trespass under Texas Penal Code §30.05.

On February 12, 2016, DART Chief of Police James Spiller (“Spiller”) initiated an internal affairs investigation of Adelman’s arrest because Branch’s audio recording indicated the reason she made contact with Adelman was due to him taking pictures of a person receiving medical treatment by DFR.  On February 16, 2016, Chief Spiller wrote a letter to Adelman informing him the criminal trespass case would be dismissed and that “…a review of the arrest revealed that it was not consistent with DART Police policies and directives…Although the officer’s actions appear to be within her authority, they are not in line with department directives concerning photography on DART property.”

Adelman brought a civil suit against DART and the arresting officer, under the federal  1983 statute, which permits a person to file a civil suit against a governmental entity that has infringed that person’s constitutional rights.  Adelman argued that DART and the officer violated his First and Fourth Amendment rights.  The First Amendment claim centered on his arrest for filming police activity in a public place.  The Fourth Amendment claim centered on his “seizure” aka the arrest.

DART and the officer contended they weren’t liable because the officer honestly believed she had probable cause to arrest Adelman since he’d filmed a person receiving medical treatment.  Adelman countered that the basis for the arrest – a DART policy banning the use of its property for “non-transportation related purposes” — was unconstitutional on its face.  And it asked the court to decide as a matter of law that there weren’t any factual disputes left to decide.

But the Court wasn’t buying that argument.  In the judge’s view there are indeed factual issues left to decide.  Which means it will be for a jury to decide if Adelman, pest though he may be, is entitled to a damage award for his mistreatment at DART’s hands.

But the bigger lesson?  It’s important for laws enforcement to distinguish between things that annoy them and things that are actually illegal.  It may be bad form for Adelman to film a citizen receiving medical treatment.  But when that takes place in public there’s no expectation of privacy and no HIPAA concerns.  And there’s no law being broken.  Which means cooler heads need to prevail, and not arrest anybody.  DART may wind up paying a hefty premium for this education.