First Amendment WIN in federal court

Jimboy · Mar 31, 2019

I'll take "Lawyer" for a 1000, Alex

win296 · Mar 31, 2019

esqappellate said:
If there is a constitutional right to peacefully picket on the sidewalk (and there is), then Pope's order to move off the sidewalk was unlawful. Pope justified it by reference to a new "policy" The judge is saying in the order, effectively "What policy?" saying "This case law would seem to indicate that the Plaintiffs have alleged sufficient facts in the Complaint to make out a violation of a constitutional right." The judge then stated that "the government is permitted to burden free expression in certain circumstances, particularly where the government policy or regulation is content-neutral." So we will have a happy time in discovery as to what the "policy" is and whether it is "content neutral." I, for one, do not think for a minute that there was *any* actual policy (much less written policy of which notice was given) -- it was just a sham that Pope and Wilson made up to hassle these guys. Bear in mind that this "policy" is not only brand new, but it is "policy" that has never been enforced against anyone else (before that night and since that night). But we shall see in discovery when we place these guys under oath and get all the documents. If there is a "policy," then they should have *something* that sets that policy out. If it was made up that night just to hassle these guys, then they have no defense and no qualified immunity. Toast.

What’s to stop them from writing, and post dating, a policy and presenting it at discovery?

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swinokur · Mar 31, 2019

A policy that violates the 1A is clearly unconstitutional. Putting it in writing will make their case worse

Cruacious · Mar 31, 2019

win296 said:
What’s to stop them from writing, and post dating, a policy and presenting it at discovery?

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Nothing, but if it is discovered that they forged documents (and there would be a good chance of that) then the consequences for them would be catastrophic. No, I think that the MGA is going to hang the officers out to dry and wash their hands of this while trying to find a legal way to prohibit 2A protests and other distasteful displays.

swinokur · Mar 31, 2019

I’m betting Sgt. Pope will throw his bosses under the bus if he was acting on someone else’s orders.

Why should he take the blame if it wasn’t he who ordered it?

This is going to be fun watching them squirm

Jimboy · Mar 31, 2019

Yep. And besides, Wilson has to testify as well. Is the Chief willing to let his career and pension hang as well.
Will definitely be interesting as this goes forward

esqappellate · Mar 31, 2019

win296 said:
What’s to stop them from writing, and post dating, a policy and presenting it at discovery?

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Nothing. But, it would be perjury and yes their lawyers in the AG's office won't put their careers on the line by permitting them to perjure themselves. That would be really stupid for them to do that as it could get them disbarred.

Here is the heart of the matter, as stated by the judge:
"But if Plaintiffs were not violating any law, as they allege in their Complaint, they were not obligated to move from the public sidewalk. And if they had a First Amendment right to demonstrate or film on the sidewalk when Sgt. Pope arrested them, then their arrests would be a violation of their First Amendment rights."

swinokur · Mar 31, 2019

The state is in deep feces with this mess

fred2207 · Mar 31, 2019

teratos said:
It can’t be about what HE thought was reasonable. It has to be about what is truly reasonable.

This above, as his thought process has nothing to do with what is reasonable or not. He should of known what is reasonable... This isn't rocket science or legal mumbo-jumbo...

Bob A · Mar 31, 2019

fabsroman said:
Yep, think the "why" question in deposition would be the most important on this matter. Why was it different this night versus other nights? Who knows, maybe the area was busier that night, maybe people had complained about PP blocking the way on the sidewalk, etc.

It was February, before 730PM. Sidewalks were pretty much empty, legislators had not yet left their shelters to brave the cold. There were only a few passers-by before the cops swarmed the area with 6 patrol cars to take on seven old old fat white guys; well, six and Zen Monkey.

No doubt "people" complained about PP; however, it's doubtful that the Kapitol Kops would bother with complaints from the ordinary citizenry, even if such were made. A sudden break in the way things had been done for years, with an order from somewhere in the political stratosphere, is what was different that night.

esqappellate · Mar 31, 2019

swinokur said:
The state is in deep feces with this mess

Let's just say that they "have a problem." If I were counsel for these guys, I would be looking for a way out. And because the judge found that there disputed factual issues concerning the immunity questions, they can't even appeal the denial of the motion to dismiss on grounds of qualified immunity. See Johnson v. Jones, 515 U.S. 304 (1995) (an order that "determines only a question of "evidence sufficiency,' i.e., which facts a party may, or may not, be able to prove at trial . . . is not appealable.")' Winfield v. Bass, 106 F.3d 525, 530 (4th Cir. 1997) (en banc) ("we possess no jurisdiction over a claim that a plaintiff has not presented enough evidence to prove that the plaintiff's version of the events actually occurred, but we have jurisdiction over a claim that there was no violation of clearly established law accepting the facts as the district court viewed them.").
_ .

Stoveman · Mar 31, 2019

esqappellate said:
Let's just say that they "have a problem." If I were counsel for these guys, I would be looking for a way out. And because the judge found that there disputed factual issues concerning the immunity questions, they can't even appeal the denial of the motion to dismiss on grounds of qualified immunity. See Johnson v. Jones, 515 U.S. 304 (1995) (an order that "determines only a question of "evidence sufficiency,' i.e., which facts a party may, or may not, be able to prove at trial . . . is not appealable.").

Indulge me a hypothetical here, what if during discovery that it comes out that a an unnamed state senator from let's say PG County, with the tacit approval of an unnamed state senate president complained to the Capitol Police to "do something" about the guys on the sidewalk? Are they just as liable?

win296 · Mar 31, 2019

esqappellate said:
Nothing. But, it would be perjury and yes their lawyers in the AG's office won't put their careers on the line by permitting them to perjure themselves. That would be really stupid for them to do that as it could get them disbarred.

Here is the heart of the matter, as stated by the judge:
"But if Plaintiffs were not violating any law, as they allege in their Complaint, they were not obligated to move from the public sidewalk. And if they had a First Amendment right to demonstrate or film on the sidewalk when Sgt. Pope arrested them, then their arrests would be a violation of their First Amendment rights."

Ok. From your previous post, I had assumed that a written policy would get them off the hook.

Thanks for clarifying.

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teratos · Mar 31, 2019

win296 said:
What’s to stop them from writing, and post dating, a policy and presenting it at discovery?

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win296 said:
Ok. From your previous post, I had assumed that a written policy would get them off the hook.

Thanks for clarifying.

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A written policy would bolster their claim there was a policy. It would STILL be Unconstitutional.

swinokur · Mar 31, 2019

Exactly the point I was making. Having it in writing implicates more than just Sgt. Pope.

esqappellate · Mar 31, 2019

Stoveman said:
Indulge me a hypothetical here, what if during discovery that it comes out that a an unnamed state senator from let's say PG County, with the tacit approval of an unnamed state senate president complained to the Capitol Police to "do something" about the guys on the sidewalk? Are they just as liable?

Indulging that hypo, then the unnamed senators would also have a problem on their hands. And yes, they are just as liable, as following orders is not a defense, even on qualified immunity. And the senators too, in your hypo.

esqappellate · Mar 31, 2019

teratos said:
A written policy would bolster their claim there was a policy. It would STILL be Unconstitutional.

quite likely, that's correct. See Occupy Columbia v. Haley, 738 F.3d 107 (4th Cir. 2013)

Fox123 · Mar 31, 2019

I still bet it’s the reason Hogan always looks so uncomfortable in the few photos taken out on the sidewalk.

esqappellate · Mar 31, 2019

Fox123 said:
I still bet it’s the reason Hogan always looks so uncomfortable in the few photos taken out on the sidewalk.

Naaa, Hogan's not involved in this at all, at least I doubt it.

esqappellate · Mar 31, 2019

swinokur said:
Exactly the point I was making. Having it in writing implicates more than just Sgt. Pope.

And the policy better comply with the principles set out in this recent opinion by the Fourth Circuit

First Amendment WIN in federal court

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