Federal Court Rules Citizens Have No Right to Film Politicians & Police in Public

Source: Free Thought Project
Published: Aug 10, 2017
Author: Claire Bernish
Post Date: 2017-08-12 09:54:35 by Deckard
Views: 6681

Contradicting the rulings of six others federal courts, the Eighth Circuit Court of Appeals annihilated free speech rights in upholding a district court decision stating citizens do not have the right to film public officials — politicians, police, and others — in public.

In affirming the decision of the lower court to dismiss, the Eighth Circuit effectively ended free speech activist Matthew Akins’ challenge to the Columbia, Missouri, Police Department, which he accuses of unlawfully stopping and arresting him on multiple occasions — though nearly all charges were later dropped — as he filmed their encounters with the public, in public.

Akins says the spate of arrests and harassment from law enforcement is brazen retaliation for the nature of his activist work — filming officers on the job.

As a journalist and founder of Citizens for Justice in 2011, a group committed to monitoring police for accountability purposes, Akins frequently stopped to record officers’ interactions with the general public — a tactic employed by a plethora of civilian impartial observation groups to stem an epidemic of police violence and veritable impunity in courts, so common to law enforcement officers who misbehave.

Judge Nanette Laughrey penned in the stunning decision Columbia Police officers indeed had probable cause to arrest Akins each time, and — again, contrary to previous rulings from six circuit courts —that “he has no constitutional right to videotape any public proceeding he wishes to.”

Attorney Stephen Wyse already filed an appeal on Wednesday for the court to rehear the case — originally filed against Boone County Prosecutor Dan Knight, two former Boone County assistant prosecuting attorneys, and several members of the Columbia Police Department — as he contended unequivocally, prior,

“You can’t target journalists because you don’t like their reporting.”

ABC affiliate KMIZ reports,

“Wyse took issue with Laughrey’s decision to stay on the case, despite his request she recuse herself. Laughrey’s husband, Chris Kelly, was the head of a city task force on infrastructure, which could have skewed her decisions in a case against the city, Wyse claimed. While federal law does call for a judge’s recusal, the appeals court said nothing in Akins’ case rose to the level of bias or prejudice against his case.”

While the topic of filming the police — of particular interest to law enforcement accountability activists, First Amendment advocates, and others concerned for decaying free speech rights — appeared in federal court before, Laughrey’s ruling goes against precedence established by the First, Third, Fifth, Seventh, Ninth, and Eleventh Circuits, which decided the Constitution guarantees the right to film public officials in public settings, as long as recording does not interfere.

In fact, Judge Thomas Ambro wrote the decision for the Third Circuit Court of Appeals in a similar case comprised of separate instances in which Philadelphia law enforcement actively thwarted the efforts of two citizens, Amanda Geraci and Richard Fields, to film arrests. Both sued for violations of their civil rights, and — like many other litigants — won.

“The First Amendment protects the public’s right of access to information about their officials’ public activities,” Ambro clarified, adding that access “is particularly important because it leads to citizen discourse” on public and private issues — an exalted exercise of that preeminent protection. The government, ruled the judge, is prohibited constitutionally from “limiting the stock of information from which members of the public may draw.”

American law enforcement, on the whole, has not responded hat graciously to civilians whipping out cell phones and video cameras to record encounters in public — though filming police can indeed provide additional pictorial and audio evidence in the event of contention or disputation.

“Bystander videos provide different perspectives than police and dashboard cameras, portraying circumstances and surroundings that police videos often do not capture,” Ambro continued. “Civilian video also fills the gaps created when police choose not to record video or withhold their footage from the public.”

Laughrey, however, broke ranks in a manner which could portend a precarious existence of certain First Amendment rights — rights which had previously been assumed by the public and averred in peer courts. States comprising the Eighth Circuit are Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota.

“The First Amendment is a core American value,” Wyse asserted in a press statement following the decision’s astonishing departure from precedent. “The right to free speech and a free press are central to our liberty and our ability to hold our government accountable. This holding of the 8th Circuit undermines the basic rights of Missourians and the citizens of the six other 8th Circuit states and undermines the First Amendment rights for all Americans.”

Reports indicate Akins — barring an unlikely rehearing in the Eighth Circuit Court — may indeed appeal his case to the Supreme Court. Because multiple federal judges have upheld the right to film police and public officials as a constitutionally-protected activity on multiple occasions, the ramifications of Laughrey’s ruling may not be as far-reaching and detrimental as appears now — but the ultimate litmus test seems inevitably poised for SCOTUS.

In the meantime, irascible law enforcement officers keen to prevent civilians from filming their activities would do well to remember two crucial points: recording public officials keeps them responsible and accountable for their actions — but can also protect them in situations of disputing claims. After all, raw video recordings — not police, officials, or citizens — have no need of mendacity and duplicity.

“We ask much of our police,” Ambro wrote in the July decision. “They can be our shelter from the storm. Yet officers are public officials carrying out public functions, and the First Amendment requires them to bear bystanders recording their actions. This is vital to promote the access that fosters free discussion of governmental actions, especially when that discussion benefits not only citizens but the officers themselves.”

Laughrey, unfortunately, did not agree — and now the public has yet another constitutionally-protected right left dangling by a fraying thread.

Post Comment   Private Reply

#1: misterwhite    To: Deckard (#0)

recording public officials keeps them responsible and accountable for their actions

I don't see how, when 99% of the public recordings of police that I've seen start well after the initial encounter, and only after the police have reacted.

"but can also protect them in situations of disputing claims."

Which is the purpose of police body cams.

Civilians with cameras are not interested in recording the entire incident. Based on what I've seen, they're interested in provoking the police so they can become a YouTube sensation or win the legal lottery.

misterwhite posted on 2017-08-12 11:38:58   Reply   Private Reply

#2: goldilucky    To: misterwhite (#1)

Which is the purpose of police body cams.

To protect police officers from liability and to protect them when someone actually pulls the trigger on them. Then, they not only have evidence of the shooter taking offense action against the officer but that the officer may use the evidence in court to prove that the defensive measure the officer did in taking down the assailant (if the officer survives the attack), was within the police guidelines and training, thus shielding that officer from personal liability.

And civilians with cameras are interested in recording the entire incident. What the civilian should be concerned about is where police officers purposely go after the civilian ( for the purpose of tampering with the evidence or getting rid of it) because they refuse to turn over the recorded evidence.

goldilucky posted on 2017-08-12 20:02:39   Reply   Private Reply

#3: misterwhite    To: goldilucky (#2)

And civilians with cameras are interested in recording the entire incident.

I see very little evidence of that. What I see posted here and on YouTube are videos which begin with the police officer taking action. It's a biased representation which has led to marches, protests and riots -- not to mention legal suits. By the time the truth emerges, it's way too late.

Civilians think they work for Dateline, determined to capture a gotcha moment that put the police in a bad light.

misterwhite posted on 2017-08-12 20:18:55   Reply   Private Reply

#4: nolu chan    To: Deckard, misterwhite (#0)

Contradicting the rulings of six others federal courts, the Eighth Circuit Court of Appeals annihilated free speech rights in upholding a district court decision stating citizens do not have the right to film public officials — politicians, police, and others — in public.

In affirming the decision of the lower court to dismiss, the Eighth Circuit effectively ended free speech activist Matthew Akins’ challenge to the Columbia, Missouri, Police Department, which he accuses of unlawfully stopping and arresting him on multiple occasions — though nearly all charges were later dropped — as he filmed their encounters with the public, in public.

Akins says the spate of arrests and harassment from law enforcement is brazen retaliation for the nature of his activist work — filming officers on the job.

As a journalist and founder of Citizens for Justice in 2011, a group committed to monitoring police for accountability purposes, Akins frequently stopped to record officers’ interactions with the general public — a tactic employed by a plethora of civilian impartial observation groups to stem an epidemic of police violence and veritable impunity in courts, so common to law enforcement officers who misbehave.

Judge Nanette Laughrey penned in the stunning decision Columbia Police officers indeed had probable cause to arrest Akins each time, and — again, contrary to previous rulings from six circuit courts —that “he has no constitutional right to videotape any public proceeding he wishes to.”

What a load of bullshit.

http://law.justia.com/cases/federal/appellate-courts/ca8/16-3555/16-3555-2017-07-25.html

Opinion at 2:

In 2015 Akins filed this lawsuit under 42 U.S.C. § 1983, alleging that his constitutional rights under the First, Second, Fourth, and Fourteenth Amendments had been violated by the defendants. Among other matters, Akins alleged that his rights had been violated by

(1) a stop at a sobriety checkpoint in May 2010 resulting in his being arrested and

(2) a stop for a traffic violation in June 2010 resulting in Akins being removed from his vehicle and handcuffed while his vehicle was searched.

Akins also alleged that the defendants violated his rights

by removing videos he had posted on the CPD Facebook page,

by ordering him to stop filming the filing of a citizen complaint in the CPD lobby, and

by posting in the police department a flyer with information about him.

Akins v. City of Columbia, No. 2:15-CV-04096-NKL (W.D. Mo. Aug. 2, 2016)

I. Background[1]

A. May 9, 2010 incident and Officer Hughes

1. The arrest

On May 9, 2010, Officer Hughes stopped Akins on a routine DWI checkpoint in Columbia. Akins was driving a 1997 Toyota Camry and Hughes did not know who Akins was at the time of the stop. When Hughes was speaking with Akins, he observed that Akins' eyes were bloodshot and his hands shook as he handed Hughes his documents. Hughes also smelled what he believed to be the smell of marijuana.[2] Hughes asked Akins to step out of the car. Akins began rolling up the window, at which point Hughes opened the door himself and asked Akins to step out, which Akins did. As Akins stepped out, Hughes saw Akins move his right hand close to his leg and quickly place an unknown item in his right pants pocket. Based on Akins' nervous demeanor and the quick motion, Hughes believed Akins could have placed a weapon in his pocket. To check Akins' pocket and retrieve the unknown item, Hughes moved aside a paper towel that was in Akins' pocket. Based on Hughes' training and experience, the paper towel was wrapping what to Hughes felt like marijuana stems, seeds, and leaves.

When Hughes patted Akins down, Hughes felt a gun near Akins' waist. The gun, a .380 Bersa, was in a holster attached to Akins' belt, covered by his shirt. Akins did not tell Hughes about the gun at any time before or after getting out of the car. Akins says Hughes' actions, from the time of opening the door to when he performed the pat down, did not provide reasonable time to tell Hughes about the gun. When Hughes felt the gun, Hughes pushed Akins off-balance and against the car, and yelled, "Gun!" Hughes asked Akins whether he had a concealed carry permit. Akins said he did not and that his attorney told him he did not need one to carry a gun in the car.

Hughes later wrote in the offense report that "[t]he gun was discovered to be loaded with 11 bullets in the magazine and 1 round in the chamber. The handgun was readily capable of immediate lethal use and was concealed under [Akins'] shirt, not visible to others." Doc. 91-3, p. 20 of 22 (Offense Report). Akins admits the gun contained bullets. But he says there was no bullet in the chamber when Hughes removed the gun from the holster. Akins says when Hughes drew the slide back to check on whether there was a round in the chamber, Hughes' action chambered the round. Doc. 91-1, p. 2.

Akins admits that a tissue removed from his pocket could possibly have contained "remnants of marijuana" or "marijuana byproducts." Doc. 82-1, p. 14 (Akins Depo., p. 56). Another officer searched Akins' car and located a plastic baggie under the driver seat, containing what the officer reported to be marijuana. Akins admits he had used marijuana at some time and that it was possible that what the officer found in his car was his marijuana. Id., p. 18 (Akins Depo., p. 71). Hughes arrested Akins for drug possession and unlawful use of a weapon.

2. Return of the gun

The Boone County prosecutor subsequently charged Akins with unlawful use of a weapon, a class D felony. Then on November 16, 2010, the prosecutor dismissed the charge, nolle prosequi "and possession of Matthew Akins Bersa 380 pistol was maintained by the Columbia Police Department pursuant to the recommendations of the Boone County Prosecutor's Office." Doc. 4, p. 8 of 40, ¶ 23 (Akins' Amended Complaint).

In February 2012, Akins' defense attorney emailed the assistant prosecutor who had handled the case, asking if Akins' gun could be returned to Akins. The assistant prosecutor responded that that should be alright and asked whether Akins had proof of ownership. No evidence in the record shows Akins' attorney responded to the question about proof of ownership, or that the prosecutor relayed the request to the City police department.

The City police department was performing a routine audit in October 2012 and according to the City, in the course of the audit it learned it still had Akins' gun.[3] At the time, Akins had a pending felony charge relating to an arrest for possession of a knife. The City sent Akins a letter one week later, informing Akins that the gun was available to be picked up by a third party, as Akins had a pending felony charge. The evidence custodian of the Columbia Police Department, Michelle Heater, also explained to Akins in a phone call on October 24, 2012 that a third party could pick it up. No third party came to get it.

In February 2013, Akins emailed Chief Burton and the Boone County prosecutor, requesting return of the gun. The Boone County Prosecuting Attorney's office notified Heater on March 20, 2013 that they no longer needed the gun. Akins was told on March 28, 2013 that he could pick it up any time.[4] He picked it up on Aril 15, 2013.

B. June 6, 2010 incident and Officer Schlude

On June 6, 2010, around 6:50 p.m., Akins made an illegal U-turn while driving and Officer Schlude stopped him. Akins admits the stop was lawful. Doc. 4, p. 8 of 40, ¶ 25. Akins had two passengers with him, including one in the back seat. Akins submitted the affidavit of one of his passengers, K. Jones, who said that after pulling Akins over, Schlude asked Akins whether there were any illegal drugs or weapons in the car. Doc. 91-7 (Jones Affidavit). Akins told Schlude there was a legal rifle on the rear floorboard.

Schlude does not have an independent recollection of the interaction with Akins. The dispatch system records reflected, and Schlude would have been advised at the time, that Akins had a type two indicator, meaning Akins was known to be armed and violent; and that Akins' passengers had type one indicators, meaning they were known to be violent. Akins also had a felony weapons charge at the time. According to dispatch records, Schlude told dispatch that there was a rifle in the car and requested backup. Schlude said that based on the facts in the dispatch record, he would have approached the situation with caution given that Akins was known to be armed and violent, the two individuals were known to be violent, and there was a rifle in the car.

Schlude ordered Akins and the two passengers out of the car. All three were handcuffed and searched by a second officer who arrived at the scene. Jones says this second officer was searching them for "dangerous objects[.]" Id. The three were directed to sit on the curb while Schlude searched the car. Akins did not consent to the search. Akins says Schlude moved some items out of the car during the search and the entire encounter lasted about 20-30 minutes.

Schlude issued Akins a citation for the illegal turn. Akins says he asked Schlude whether he had "done anything wrong" with the gun and what "the protocol" was for a situation like the one he had just found himself in. Doc. 91-1, p. 5 (Akins Affidavit). He says Schlude responded that it depended on the officer, i.e., some would see the gun in the car, pull their own gun and shoot him dead, then testify that they had feared for their life and the charge would be dismissed. Id.

- - - - - - - - - -

FootNotes

1. Unless otherwise noted, the facts recited are those which are properly supported and undisputed.

2. Hughes has been a Columbia police officer since 2005 and has had training. Akins disputes that Hughes could have detected the odor of marijuana. Akins states in an affidavit that he (Akins) had not "smoked or ingested marijuana" that day, he knows what marijuana smells like, and he did not smell marijuana in his car at the time of the stop, Doc. 104-1, suggesting Hughes is fabricating his statement that he believed he smelled marijuana. However, Akins admits in his reply suggestions to the City Defendants' motion for summary judgment that, "[w]eirdly," many things smell like marijuana, including various other plants, beer, Axe touch spray, body odor, and skunk. Doc. 110-3 (Exh. 59). Also, Akins admitted he possibly did have marijuana on his person or in his car at the time. Doc. 82-1, pp. 14 and 18 (Akins Depo. pp. 56 and 71). Finally, what appeared to be marijuana was found in Akins' car. On this record, no reasonable juror could find that Hughes was lying when he said he believed he smelled marijuana. Akins has not created a genuine dispute of material fact concerning Hughes' belief.

3. Akins states that a printout showing the history of the gun charge, produced by the City police department in discovery in this lawsuit, shows that the City police department knew by January 2011 that the charge had been dismissed. See Doc. 91-10 (Akins' Exhibit 12, p. 2). The printout does not say that, and the printout does not otherwise reflect, nor is there evidence in the record of, who had access to the printout, or how and by whom the information it contains was used.

4. The felony knife charge was amended in March 2013 to driving while revoked or suspended and failure to yield right-of-way.

- - - - - - - - - -

Akins also alleged that the defendants violated his rights by removing videos he had posted on the CPD Facebook page,

Akins v. City of Columbia, No. 2:15-CV-04096-NKL (W.D. Mo. Aug. 2, 2016)

7. The Columbia Police Department Facebook page

The Columbia Police Department has had a Facebook page since at least 2011. From 2011 to the spring of 2016, the page has always contained substantially the following statement:

The purpose of this page is to provide an opportunity for the Columbia Police Department to supply information to the public about department events, crime alerts, and other important information. We encourage you to submit comments, but please note that this is not a public forum. Comments posted to this page will be monitored. The Columbia Police Department reserves the right to remove inappropriate comments.

Doc. 108-3, Defs. Exh. G (Affidavit of Jill Schlude). Sometime after 2011, the Department added examples to the statement.

Akins states that he had posted several Citizens for Justice videos on the Police Department's website, but then in the summer of 2011 found that his videos were no longer there and he could no longer post anything. He said that in fact, he saw that all posts by others outside the Department had been removed, so he contacted the public information officer, Jill Schlude. Schlude told him the City did not have a formal social media policy, administrators had decided to work on one, and until a policy was in place, the Police Department would be posting its own content.

Schlude further explains that that approach was a City-wide one, not limited to the Police Department. Since the summer of 2011, no one can post original links to videos on the Police Department's Facebook page and no one can post comments that do not relate to the original post by the Police Department. In 2011-2012, comments to the page that were not related to the topic of the post under which they were made would have been considered inappropriate, and would have been removed. This is true for all users. Schlude has also reviewed the topics of postings from 2011-2012, and found none related to the subjects of Akins' Citizens for Justice videos. While memos concerning a social media policy have been prepared and circulated, the City has not adopted a social media policy.

- - - - - - - - - -

Akins also alleged that the defendants violated his rights ... by ordering him to stop filming the filing of a citizen complaint in the CPD lobby

Akins v. City of Columbia, No. 2:15-CV-04096-NKL (W.D. Mo. Aug. 2, 2016)

5. Filming in the Police Department lobby in 2011

The Columbia Police Department has a lobby that is open 24 hours a day. It contains a media book, a beat map, informational brochures, and a memorial to a slain Columbia police officer. The media book contains copies of incident reports from the prior night for interested media members. The beat map assists citizens in determining the beat they are in for purposes of filing police reports. Sometime in 2011, Akins was filming a person who was wearing a Ku Klux Klan hood and was in the lobby to pick up a complaint form. A Community Service Aide (CSA), who is not a defendant in this case, told Akins he could not film in the lobby and to turn off the camera, which Akins did.

Akins later followed up with a Police Department Public Information Officer, Jill Schlude. Schlude told Akins the CSA had been wrong when he said filming in the lobby was not allowed and told Akins to stop filming. Schlude also said the Police Department had had to follow up with the CSA so he would know what he told Akins was wrong. The CSA was not disciplined for asking the filming to stop.

- - - - - - - - - -

Akins also alleged that the defendants violated his rights ... by posting in the police department a flyer with information about him.

Akins v. City of Columbia, No. 2:15-CV-04096-NKL (W.D. Mo. Aug. 2, 2016)

E. The Akins poster and Citizens for Justice website

Prior to the creation of the Citizens for Justice website, Akins had at least nine contacts with the Columbia Police Department that had resulted in his arrest. He began construction of the website in June 2010 and the Columbia Police Department became aware of it in December 2010.[10] The website concerned law enforcement interactions with the public, including alleged police misconduct by the Columbia Police Department. Akins' systems administrator accidentally erased the website in the fall or winter of 2012. Doc. 82-1, p. 106 (Akins Depo. pp. 261-62). But Akins says Citizens for Justice still has active YouTube and Facebook pages. Doc. 104, p. 30, para. 141.

At some point in 2011, a poster concerning Akins was put up in the Police Department's briefing room, an area not generally open to the public. No evidence in the record shows who created or put up the poster. The poster had a photograph of Akins. It stated he drove a silver Pontiac Grand Prix and had arrests in the system for weapons violations, including carrying a pistol concealed on his person. It also stated Akins ran a website, and gave the website address (which was for Citizens for Justice). Doc. 82-21, Defs. Exh. 26 (poster). The Police Department does not have a policy concerning posters being displayed within the Department.

At the time the poster was up, Akins was approaching police offices at night while they were responding to calls and otherwise performing their duties, recording the officers' activities with a camera in night vision mode and that displayed an illuminated red dot when it was on. Doc. 82-29, Defs. Exh. 35 (Burton Affidavit); Doc. 82-1, pp. 31, 36, 39, 48, 110, 113, and 119 of 188 (Akins Depo., pp. 121, 143, 155, 190, 191, 278, 279, 291, and 315). Chief Burton opined that the poster promoted Akins' and officers' safety. At some point after Akins began filming police officers, Chief Burton or Jill Schlude advised the Police Department that Akins had the right to film. Doc. 82-29.

- - - - - - - - - -

Judge Nanette Laughrey penned in the stunning decision Columbia Police officers indeed had probable cause to arrest Akins each time, and — again, contrary to previous rulings from six circuit courts —that “he has no constitutional right to videotape any public proceeding he wishes to.”

Akins v. City of Columbia, No. 2:15-CV-04096-NKL (W.D. Mo. Aug. 2, 2016)

Akins also argues that he was retaliated against when he was stopped from filming a citizen in the Police Department lobby in 2011; his links to the Citizens for Justice page were removed from the Police Department's Facebook page in the summer of 2011; and he was excluded from a Police Department Media Training Day in October 2015. None of the individual Defendants participated in these incidents, and as discussed above, the City cannot be liable under § 1983 on a respondeat superior theory. Moreover, Akins points to no unconstitutional municipal policy or custom. Further, he has no constitutional right to videotape any public proceedings he wishes to. See Rice v. Kempker, 374 F.3d 675, 678 (8th Cir. 2004) ("[N]either the public nor the media has a First Amendment right to videotape, photograph, or make audio recordings of government proceedings that are by law open to the public."), and Wis. Interscholastic Ath. Ass'n v. Gannett Co., 658 F.3d 614, 627-628 (7th Cir. 2011) (same).

nolu chan posted on 2017-08-12 21:44:29   Reply   Private Reply

#5: Tooconservative    To: nolu chan, Deckard, misterwhite (#4)

The Eighth Circuit has 18 judges total, including the 3 current vacancies. It is considered the most Republican court of appeals in the country with 13 of the current members being Republican appointees, with one 0bama appointee and one Clinton appointee. Hearing this case were two Minnesota-based judges and a Bush judge from Cedar Rapids.

The article makes it sound like the only place left to appeal is the USSC. But it seems that this was one of those 3-judge appeals panels, not the full 15 members. So the appeal would likely go to the full Eighth Circuit court of 15 members before it went on to the USSC.

BTW, those three vacancies on the Eighth? Trump has nominees now, nominated in May, June and August.

Tooconservative posted on 2017-08-12 21:59:29   Reply   Private Reply

#6: nolu chan    To: Tooconservative, Deckard, misterwhite (#5)

The article makes it sound like the only place left to appeal is the USSC. But it seems that this was one of those 3-judge appeals panels, not the full 15 members. So the appeal would likely go to the full Eighth Circuit court of 15 members before it went on to the USSC.

https://www.scribd.com/document/355935027/Akins-appeal-of-District-Court-ruling

Petition for Rehearing en banc by the 8th Circuit court.

The District Court opinion is below. The case was tossed on a defense motion for summary judgment. It was summary judgment that was upheld by the 8th Circuit. I see no reason the full panel will overturn, or why SCOTUS would even grant cert.

This District Court addressed the issues point by point.

nolu chan posted on 2017-08-13 01:58:00   Reply   Private Reply

#7: goldilucky    To: Deckard (#0)

https://www.theatlantic.com/politics/archive/2017/07/a-major-victory-for-the-right-to-record-police/533031/

goldilucky posted on 2017-08-13 03:51:38   Reply   Private Reply

#8: Tooconservative    To: nolu chan (#6)

Petition for Rehearing en banc by the 8th Circuit court.

It seems like this Akins was an angry hippie who sensed a payday.

I'm not seeing any wide application of the law here, just the court tossing out a harassment case by a litigious armed pothead.

Tooconservative posted on 2017-08-13 08:18:57   Reply   Private Reply

#9: nolu chan    To: Tooconservative (#8)

I'm not seeing any wide application of the law here, just the court tossing out a harassment case by a litigious armed pothead.

Yes, the case was tossed pre-trial. There is a Free Thought Project screaming headline and no substance.

With regard to the screaming headline, "Federal Court Rules Citizens Have No Right to Film Politicians & Police in Public," note that he was told to stop filming by a Community Service Aide (CSA), not an employee of the city. The CSA was corrected when the police PIO learned about it. The unnamed CSA was not a named defendant. The responsible non-employee wasn't sued. The court noted that the city could not be held liable under respondeat superior.

Respondeat superior. Let the master answer. This doctrine or maxim means that a master is liable in certain cases for the wrongful acts of his servant, and a principal for those of his agent. Burger Chef Systems, Inc. v. Govro, C.A.Mo., 407 F.2d 921, 925. Under this doctrine master is responsible for want of care on servant's part toward those to whom master owes duty to use care, provided failure of servant to use such care occurred in course of his employment. Shell Petroleum Corporation v. Magnolia Pipe Line Co., Tex.Civ.App., 85 S.W.2d 829, 832. Under doctrine an employer is liable for injury to person or property of another proximately resulting from acts of employee done within scope of his employment in the employer's service. Mid-Continent Pipeline Co. v. Crauthers, Okl., 267 P.2d 568, 571. Doctrine applies only when relation of master and servant existed between defendant and wrongdoer at time of injury sued for, in respect to very transaction from which it arose. Hence, doctrine is inapplicable where injury occurs while employee is acting outside legitimate scope of authority. Rogers v. Town of Black Mountain, 224 N.C. 119, 29 S.E.2d 203, 205. But if deviation be only slight or incidental, employer may still be liable. Klotsch v. P. F. Collier & Son Corporation, 349 Mo. 40, 159 S.W.2d 589, 593, 595. See Scope of employment; Vicarious liability.

The CSA was not an employee, and he acted outside his scope of authority. The unnamed CSA did not have immunity, but he was not named as a defendant.

The article also rips out of context the accurate statement that "he has no constitutional right to videotape any public proceedings he wishes to."

Further, he has no constitutional right to videotape any public proceedings he wishes to. See Rice v. Kempker, 374 F.3d 675, 678 (8th Cir. 2004) ("[N]either the public nor the media has a First Amendment right to videotape, photograph, or make audio recordings of government proceedings that are by law open to the public.")

That state or local authorities granted permission to film in a certain location within a government building does not make it a right bestowed by the U.S. Constitution.

For those who doubt the accuracy of the statement, try finding the video of the latest U.S. Supreme Court arguments. Or the video of any such arguments in history. They are open to the public, albeit with limited seating.

https://en.wikipedia.org/wiki/Cameras_in_the_Supreme_Court_of_the_United_States

The Supreme Court of the United States does not allow cameras into the courtroom when the court is in session, which is the subject of much debate. Although the Court has never allowed cameras in its courtroom, it does make audiotapes of oral arguments and opinions available to the public.

There is no constitutional right to record all government proceedings that are by law open to the public. Just because someone may wish to record does not give them a constitutional right to do so. Absent some constitutional violation by the government or its employees, bringing the federal lawsuit has a bit of a problem.

At Docket entry 116 in the District Court, dated Aug. 1, 2016, is found.

ORDER entered by Judge Nanette Laughrey. The pretrial conference scheduled for 8/4/2016 is canceled and the jury trial setting of 8/15/2016 is stricken. Signed on 8/1/16 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 08/01/2016)

This whole thing is not an opinion on a case, but a pre-trial ruling on a motion for summary judgment. There has not been a trial. The only appealable issue is the ruling on the motion to grant summary judgment.

nolu chan posted on 2017-08-13 16:56:49   Reply   Private Reply

#10: Tooconservative    To: nolu chan (#9)

For those who doubt the accuracy of the statement, try finding the video of the latest U.S. Supreme Court arguments. Or the video of any such arguments in history. They are open to the public, albeit with limited seating.

Yet every so often, someone tries to get the USSC on camera. Never works.

Tooconservative posted on 2017-08-13 21:47:26   Reply   Private Reply

#11: goldilucky    To: nolu chan (#9)

The court noted that the city could not be held liable under respondeat superior.

The court erred in that stating no liability under respondeat superior. This is a matter of custom and policy the city and their police departments hold to trump the First Amendment.

goldilucky posted on 2017-08-15 13:28:13   Reply   Private Reply

#12: nolu chan    To: goldilucky (#11)

The court erred in that stating no liability under respondeat superior.

No, it did not, and the court was upheld without dissent.

The Complainant did not include the Community Service Aide (CSA), a non-sworn civilian, in the Complaint. The CSA did not act within the scope of authority or employment.

Any alleged complaint against the CSA had to be brought against the CSA who acted outside the scope of authority or employment. Such employee enjoys no limited immunity.

The District Court cited and ruled in accordance with United States Supreme Court precedent. Municipalities cannot be held liable under 42 U.S.C. § 1983.

Monell v Dept of Soc Servs, 436 US 658, 691 (1978)

On the other hand, the language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, we conclude that a municipality cannot be held liable solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.

nolu chan posted on 2017-08-15 15:24:02   Reply   Private Reply

#13: goldilucky    To: nolu chan (#12)

The CSA was not an employee, and he acted outside his scope of authority. The unnamed CSA did not have immunity, but he was not named as a defendant.

Who does the CSA work for? If the CSA did not work within the scope of their official duties nor outside their scope, why were they even mentioned? All of this info should have been obtained during the pre-discovery proceedings. If they work for the city, the city can be sued as a municipality thus applying the doctrine of custom and policy violations. The complaint could have been amended and verified to name the CSA and any other John Does or Janes involved in this matter.

goldilucky posted on 2017-08-16 12:46:57   Reply   Private Reply

#14: nolu chan    To: goldilucky (#13)

Who does the CSA work for? If the CSA did not work within the scope of their official duties nor outside their scope, why were they even mentioned?

The CSA worked for the police, but was not a sworn member of law enforcement.

In telling the complainant that he could not record video, the CSA was in error. He operated OUTSIDE his authority, and OUTSIDE the scope of his employment.

He is mentioned by the City and the individual defendants because the CSA was the only one who interacted with the complainant, and the complainant did not name the CSA as a defendant. For this claim, the complaint is fatally defective.

If they work for the city, the city can be sued as a municipality thus applying the doctrine of custom and policy violations.

SCOTUS ruled that a Federal civil rights suit against a municipality cannot be sued under the theory of respondeat superior.

Regarding the complaint about a violation of constitutional rights by preventing the complainant from recording, the complainant sued the wrong named defendants in the wrong court, on a theory that could not apply against that city or any municipality. I fail to see how he can amend his complaint to fit it within 42 U.S.C. § 1983. I fail to see how he can prevail under a claim of established custom and policy as there was no alleged established custom or policy, and upon notification to the PIO, the PIO instructed the CSA that he was in error. Moreover, as the District Court noted, "Akins points to no unconstitutional municipal policy or custom."

He might have tried suing the CSA, but there would likely not be very deep pockets there, nor much probability of a large, if any, liability award.

Spell v. McDaniel, 824 F.2d 1380, 1387 (4th Cir. 1987)

"Custom and usage," in the sense of "persistent and widespread ... practices" by municipal agents and employees, may be attributed to a municipality when the duration and frequency of the practices warrants a finding of either actual or constructive knowledge by the municipal governing body that the practices have become customary among its employees.

It is not as simple as saying "custom or usage."

In Spell, the 4th Circuit noted (speaking to police violations)

Two basic theories have emerged for imposing municipal liability in the more typical situation where fault and causation cannot be laid to a municipal policy "itself unconstitutional." The principal theory locates fault in deficient programs of police training and supervision which are claimed to have resulted in constitutional violations by untrained or mis-trained police officers. A second theory, sometimes imprecisely subsumed within the first, locates fault in irresponsible failure by municipal policymakers to put a stop to or correct a widespread pattern of unconstitutional conduct by police officers of which the specific violation is simply an example.

The CSA was not a trained police officer, and was not following any custom or practice of the municipality.

Complainant would have to prove that the custom or usage was persistent and widespread, and so so permanent and well-settled as to have the force of law. Neither the existence of such a policy or custom nor the necessary causal connection can be established by proof alone of the single violation charged.

Regarding the second theory, the PIO put a stop to the improper action of the CSA upon initial notice.

On this one alleged instance, Akins will simply be unable to meet the burden to prevail on a Federal civil rights complaint against the municipality.

Spell addresses the matter in more detail, as quoted below. The full opinion is at the link.

http://law.justia.com/cases/federal/appellate-courts/F2/824/1380/121806/

Spell v. McDaniel, 824 F.2d 1380 (4th Cir. 1987)

Municipal "Custom" and its Creation

"Official policy" in the relatively narrow sense of discrete, consciously chosen courses of action by "policymakers" is not the only basis for imposing municipal liability. "Custom, or usage," in the exact language of Sec. 1983, may also serve. Monell, 436 U.S. at 690-91, 98 S. Ct. at 2035-36.6 And the existence of such a "custom or usage" may be found in "persistent and widespread ... practices of [municipal] officials [which] [a]lthough not authorized by written law, [are] so permanent and well-settled as to [have] the force of law." Id. at 691, 98 S. Ct. at 2036 (citing and quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68, 90 S. Ct. 1598, 1613-14, 26 L. Ed. 2d 142 (1970)).

Attribution and Causation as Essentials of Municipal Fault

Because municipal liability results only when the municipality itself can be directly charged with fault[7] for a constitutional violation, it results only when policy or custom as above defined is (1) fairly attributable to the municipality as its "own," Monell, 436 U.S. at 683, 98 S. Ct. at 2032, and is (2) the "moving force" behind the particular constitutional violation. Polk County v. Dodson, 454 U.S. 312, 326, 102 S. Ct. 445, 454, 70 L. Ed. 2d 509 (1981).

Attribution of "Policy"

Policy, in the narrow sense of discrete, consciously adopted courses of governmental action may be fairly attributed to a municipality either because (1) it is directly "made by its lawmakers," i.e., its governing body, Monell, 436 U.S. at 694, 98 S. Ct. at 2037, or (2) it is made by a municipal agency, see, e.g., id. at 661 & n. 2, 98 S. Ct. at 2020 & n. 2 (policy of city board of education and department of social services) or official, see Pembaur, 106 S. Ct. at 1300-01 (policy decision of county prosecutor), having final authority to establish and implement the relevant policy. A municipal agency or official may have final policymaking authority by direct delegation from the municipal lawmaking body, see, e.g., Wellington v. Daniels, 717 F.2d 932, 936 (4th Cir. 1983) (delegation of law enforcement policymaking authority to police chief assumed) or by conferral from higher authority, see, e.g., Pembaur, 106 S. Ct. at 1301 (county prosecutor's authority to act for county conferred by state law). Delegation may be express, as by a formal job-description, see Bennett, 728 F.2d at 769, or implied from a continued course of knowing acquiescence by the governing body in the exercise of policymaking authority by an agency or official, see id. (delegation "by conduct or practice [which] encourage [s] or acknowledge [s] the agent in a policymaking role").

Attribution of "Custom"

"Custom and usage," in the sense of "persistent and widespread ... practices" by municipal agents and employees, may be attributed to a municipality when the duration and frequency of the practices warrants a finding of either actual or constructive knowledge by the municipal governing body that the practices have become customary among its employees. See id. at 768. Actual knowledge may be evidenced by recorded reports to or discussions by a municipal governing body. Constructive knowledge may be evidenced by the fact that the practices have been so widespread or flagrant that in the proper exercise of its official responsibilities the governing body should have known of them. See id.

Similarly, where a municipal policymaker has actual or constructive knowledge of such a course of customary practices among employees subject to the policymaker's delegated responsibility for oversight and supervision, the "custom or usage" may fairly be attributed to the municipality as its own. See id at 769 ("custom" may be attributed to municipality through policymaker who has acceded to it).

Causation

When a municipal "policy or custom" is itself unconstitutional, i.e., when it directly commands or authorizes constitutional violations, see, e.g., Monell, 436 U.S. at 661, 694-95, 98 S. Ct. at 2020, 2037-38 (pregnancy leave policy), the causal connection between policy and violation is manifest and does not require independent proof. See Tuttle, 471 U.S. at 822, 105 S. Ct. at 2435 ("no evidence ... needed [in such a case] other than a statement of the policy"). But a policy or custom that is not itself unconstitutional in this strict sense must be independently proven to have caused the violation.[8] Proof merely that such a policy or custom was "likely" to cause a particular violation is not sufficient; there must be proven at least an "affirmative link" between policy or custom and violation; in tort principle terms, the causal connection must be "proximate," not merely "but-for" causation-in-fact. Id. at 823, 105 S. Ct. at 2436; id. at 833 n. 9, 105 S. Ct. at 2441 n. 9 (Brennan, J., dissenting); see also Wellington, 717 F.2d at 936 (policy must be shown to have given at least "tacit authorization" to unconstitutional employee conduct). Neither the existence of such a policy or custom nor the necessary causal connection can be established by proof alone of the single violation charged. Tuttle, 471 U.S. at 823, 824, 105 S. Ct. at 2436, 2437; Wellington, 717 F.2d at 937.

The Principles as Applied to Constitutional Violations by Police

Application of these general principles to claims of municipal liability for specific incidents of unconstitutional conduct by law enforcement officials has raised special conceptual problems for the courts. This undoubtedly reflects conflicting, fundamental policy concerns about the exposure of municipalities to monetary liability for this most fundamental of "constitutional torts" at the local government level.

On one hand, there is concern that actual municipal culpability in these matters should not be masked and final responsibility avoided by overly rigid interpretations and applications of the concepts of policy or custom, policymaking authority, and causation. See, e.g., Tuttle, 471 U.S. at 833 n. 8, 105 S. Ct. at 2441 n. 8 (Brennan, J., concurring) (rejecting "metaphysical distinction between policies that are themselves unconstitutional and those that cause constitutional violations"). On the other hand, there is concern that a back-door vicarious liability principle should not be developed by overly tolerant interpretations and applications of those same key concepts. See, e.g., id. at 821, 105 S. Ct. at 2435 (plurality opinion) (overly tolerant concepts of policy and causation would impose municipal liability "simply because the municipality hired one 'bad apple' ").

Municipal policymakers, including governing bodies, may of course in theory directly authorize unconstitutional police conduct just as any other form. In practice, however, such authorizations--"policies unconstitutional in themselves"--are understandably rare, or at least rarely surface in litigation in this realm. "Official" statements of law enforcement policy almost inevitably will specifically condemn rather than condone uses of excessive force or other unconstitutional conduct by police. And where there is no official statement respecting specific police conduct, it will be difficult if not impossible to imply an official municipal policy directly authorizing conduct at odds with federal and state constitutions and laws. Cf. Pembaur, 106 S. Ct. at 1301 (White, J., concurring) ("Local law enforcement officers are expected to obey the law....").

Typically, therefore, claims of municipal liability for specific constitutional violations by police have had to seek municipal fault in other sources than direct authorizations by policymakers and the necessary causation between fault and violation in more attenuated connections than direct commands.

Two basic theories have emerged for imposing municipal liability in the more typical situation where fault and causation cannot be laid to a municipal policy "itself unconstitutional." The principal theory locates fault in deficient programs of police training and supervision which are claimed to have resulted in constitutional violations by untrained or mis-trained police officers. A second theory, sometimes imprecisely subsumed within the first, locates fault in irresponsible failure by municipal policymakers to put a stop to or correct a widespread pattern of unconstitutional conduct by police officers of which the specific violation is simply an example.

nolu chan posted on 2017-08-16 16:32:06   Reply   Private Reply

#15: goldilucky    To: nolu chan (#14)

Similarly, where a municipal policymaker has actual or constructive knowledge of such a course of customary practices among employees subject to the policymaker's delegated responsibility for oversight and supervision, the "custom or usage" may fairly be attributed to the municipality as its own. See id at 769 ("custom" may be attributed to municipality through policymaker who has acceded to it).

Which is appears the police department was not only aware of these customs and policies amongst their associates but that the city chose to adopt these policies as well. The city works with the police and since both city municipalities work together to adhere to these policies, they are VERY MUCH aware of when one of their own people violates them by taking unilateral and capricious actions knowing full well they are wrong. This makes the city as well as the police department just as liable as the non-named person who works for that police department because they acquiesced to the behavior of the CSA individual who took actions that were outside their scope of duties. This is not just an issue of respondeat superior. I just don't buy that at all. That is a very weak argument. They even admitted the CSA person erred in judgment. The city should take the blame and liability.

goldilucky posted on 2017-08-17 12:40:47   Reply   Private Reply

#16: nolu chan    To: goldilucky (#15)

Which is appears the police department was not only aware of these customs and policies amongst their associates but that the city chose to adopt these policies as well.

There is not a shred of evidence to support that nonsense, and you do not attempt to offer any.

As the District Court noted, "Akins points to no unconstitutional municipal policy or custom." Akins made no attempt to offer any such evidence.

The claim by the PIO of correcting the CSA, upon notice, was not contested.

The city works with the police and since both city municipalities work together to adhere to these policies, they are VERY MUCH aware of when one of their own people violates them by taking unilateral and capricious actions knowing full well they are wrong.

This is nonsense. Where is the necessary allegation of persistent and widespread practices, permanent and well-settled, required for such an assertion to support a FEDERAL case under 42 U.S.C. § 1983?

They become liable if they do nothing and allow it to continue. That is not alleged, but is contradicted, in Akins. If you have evidence of "persistent and widespread ... practices of [municipal] officials [which] [a]lthough not authorized by written law, [are] so permanent and well-settled as to [have] the force of law," present it. That is the definition used by the U.S. Supreme Court. Monell, 436 U.S. at 691, 698.

Also by the U.S. Supreme Court, "Neither the existence of such a policy or custom nor the necessary causal connection can be established by proof alone of the single violation charged." Tuttle, 471 U.S. at 823, 824

This makes the city as well as the police department just as liable as the non-named person who works for that police department because they acquiesced to the behavior of the CSA individual who took actions that were outside their scope of duties.

This is nonsense. An employer is not responsible for the actions of an employee when the employee acts outside the scope of employment or without authorization.

Not one shred of evidence was provided that the municipal government acquiesced in the behavior of the CSA. The actual evidence is that he was promptly corrected. No evidence of a pattern of said behavior was provided. A claim of custom and usage was not even offered, much less established.

The District Court found,

A Community Service Aide (CSA), who is not a defendant in this case, told Akins he could not film in the lobby and to turn off the camera, which Akins did.

Akins later followed up with a Police Department Public Information Officer, Jill Schlude. Schlude told Akins the CSA had been wrong when he said filming in the lobby was not allowed and told Akins to stop filming. Schlude also said the Police Department had had to follow up with the CSA so he would know what he told Akins was wrong.

There is no indication of acquiescence. You have claimed it out of thin air, but provided no basis for the claim.

This is not just an issue of respondeat superior. I just don't buy that at all. That is a very weak argument. They even admitted the CSA person erred in judgment. The city should take the blame and liability.

Your claim of custom and usage was not raised by Akins, no evidence was offered to support the claim not made, and evidence for its baselessness was entered and unopposed.

An unstated claim does not support Akins' claimed violation of the Constitution. Akins had no case for claimed violations of the U.S. Constitution under 42 U.S.C. § 1983, but that is what he brought to FEDERAL Court.

His case was so lacking that the District Court kicked it on a pre-trial motion for summary judgment — the defendant prevailed as a MATTER OF LAW.

The Circuit Court upheld the District Court without dissent.

nolu chan posted on 2017-08-17 22:42:33   Reply   Private Reply

#17: goldilucky    To: nolu chan (#16)

An employer is not responsible for the actions of an employee when the employee acts outside the scope of employment or without authorization.

I disagree! The employers makes the rules (customs and policies) and the employee is expected to acknowledge them. There is the element of feigning ignorance for the purpose of escaping liability. And the keyword is acquiesce. The employer does not have to play a direct role in what the employee does. The employer is the equivalent of the Principal and the employee is the agent. When the employer makes the customs and policies known to the employee both are aware of what these policies serve.

goldilucky posted on 2017-08-18 02:19:25   Reply   Private Reply

#18: nolu chan    To: goldilucky (#17)

An employer is not responsible for the actions of an employee when the employee acts outside the scope of employment or without authorization.

I disagree! The employers makes the rules (customs and policies) and the employee is expected to acknowledge them. There is the element of feigning ignorance for the purpose of escaping liability. And the keyword is acquiesce. The employer does not have to play a direct role in what the employee does. The employer is the equivalent of the Principal and the employee is the agent. When the employer makes the customs and policies known to the employee both are aware of what these policies serve.

Your disagreement with the U.S. District Court, the U.S. Circuit Court, and the U.S. Supreme Court is noted.

Akins failed to allege requisite facts for "custom or usage," much less prove them.

  • "a plaintiff must prove that a municipal policy or custom was the "moving force [behind] the constitutional violation"

  • "it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government, as an entity, is responsible under § 1983"

  • "a First Amendment retaliation claim requires, among other things, proof of a defendant's retaliatory animus, which need not necessarily be the sole motive, but must be a substantial factor in the plaintiff's subsequent injury"

  • "Although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a 'custom or usage' with the force of law."

  • "Akins points to no unconstitutional municipal policy or custom"

  • "Akins has not alleged that the City of Columbia adopted a policy or had a custom that has harmed him, nor identified any such policy or custom. The claim fails for this reason alone."

In Akins, the District Court stated, "Akins has not alleged that the City of Columbia adopted a policy or had a custom that has harmed him, nor identified any such policy or custom. The claim fails for this reason alone."

- - - - - - - - - - - - - - - - - - - -

https://assets.documentcloud.org/documents/2094780/matthew-akins-amended-complaint.pdf

Akins - AMENDED COMPLAINT 1 - 28 May 2015

- - - - - - - - - - - - - - - - - - - -

I find no mention of the lobby filming incident in the Complaint.

I find reference in:

  • Docket Report entry #91, "#13, Exhibit 15 - Jill Schlude Deposition (Filming in Lobby) (Russel, Jeri). (Entered: 05/18/2016)

  • Docket Report entry #92, "#6 Exhibit Ex. 33 Burton Rog on Akins filming" ... (Wyse, Stephen) (Entered: 05/18/2016)

- - - - - - - - - - - - - - - - - - - -

Akins v. City of Columbia, 2:15-cv-04096-NKL (W.D. Mo. Aug. 2, 2016), U.S. District Court, W.D. Missouri, Central Division, ORDER

E. Alleged retaliation by the City of Columbia

Akins alleges "the City of Columbia has a pattern and practice of targeting those critical of police misconduct with retaliatory action" and that he was "targeted with a `wanted poster' displayed at the Columbia Missouri Police Department" for exercising his First Amendment rights. Doc. 4, p. 30 of 40, ¶84 (emphasis in original).

The creator of the poster is unknown and the City of Columbia cannot be liable for the poster, or any other allegedly retaliatory behavior, under § 1983 on a respondeat superior theory. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). A municipality may be held liable for the unconstitutional acts of its employees when those acts implement or execute an unconstitutional municipal policy or custom. Id.; see also Doe v. Washington County, 150 F.3d 920, 922 (8th Cir.1998). But to establish a municipality's liability, a plaintiff must prove that a municipal policy or custom was the "moving force [behind] the constitutional violation." Monell, 436 U.S. at 694; see also Board of Comm'rs v. Brown, 520 U.S. 397, 400 (1997) (holding that only "deliberate" action by a municipality can meet the "moving force" requirement). Akins has neither alleged nor demonstrated that the City of Columbia adopted a policy that led to the poster and the alleged retaliation. The claim concerning the poster and alleged retaliation fail for these reasons alone.

Furthermore, a First Amendment retaliation claim requires, among other things, proof of a defendant's retaliatory animus, which need not necessarily be the sole motive, but must be a substantial factor in the plaintiff's subsequent injury. Baribeau v. City of Minneapolis, 596 F.3d 465, 481 (8th Cir. 2010). There is no evidence in the record of the motive of the person who created it, let alone that any retaliatory animus on that person's part was a substantial factor in a subsequent injury Akins experienced, if any.

[...]

Akins also argues that he was retaliated against when he was stopped from filming a citizen in the Police Department lobby in 2011; his links to the Citizens for Justice page were removed from the Police Department's Facebook page in the summer of 2011; and he was excluded from a Police Department Media Training Day in October 2015. None of the individual Defendants participated in these incidents, and as discussed above, the City cannot be liable under § 1983 on a respondeat superior theory. Moreover, Akins points to no unconstitutional municipal policy or custom. Further, he has no constitutional right to videotape any public proceedings he wishes to. See Rice v. Kempker, 374 F.3d 675, 678 (8th Cir. 2004) ("[N]either the public nor the media has a First Amendment right to videotape, photograph, or make audio recordings of government proceedings that are by law open to the public.")

U.S. Supreme Court in Monell in 1978,

https://supreme.justia.com/cases/federal/us/436/658/

Page 436 U. S. 690

II

Our analysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies. [Footnote 54] Local governing bodies, [Footnote 55] therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 "person," by the very terms of the statute, may be sued for constitutional

Page 436 U. S. 691

deprivations visited pursuant to governmental "custom" even though such a custom has not received formal approval through the body's official decisionmaking channels. As Mr. Justice Harlan, writing for the Court, said in Adickes v. H. Kress & Co., 398 U. S. 144, 398 U. S. 167-168 (1970):

"Congress included customs and usages [in § 1983] because of the persistent and widespread discriminatory practices of state officials. . . . Although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a 'custom or usage' with the force of law. [Footnote 56]"

On the other hand, the language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, we conclude that a municipality cannot be held liable solely because it employs a tortfeasor -- or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.

We begin with the language of § 1983 as originally passed:

"[A]ny person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such

Page 436 U. S. 692

law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress. . . ."

17 Stat. 13 (emphasis added). The italicized language plainly imposes liability on a government that, under color of some official policy, "causes" an employee to violate another's constitutional rights. At the same time, that language cannot be easily read to impose liability vicariously on governing bodies solely on the basis of the existence of an employer-employee relationship with a tortfeasor. Indeed, the fact that Congress did specifically provide that A's tort became B's liability if B "caused" A to subject another to a tort suggests that Congress did not intend § 1983 liability to attach where such causation was absent. [Footnote 57] See Rizzo v. Goode, 423 U. S. 362, 423 U. S. 370-371 (1976).

Page 436 U. S. 693

Equally important, creation of a federal law of respondeat superior would have raised all the constitutional problems associated with the obligation to keep the peace, an obligation Congress chose not to impose because it thought imposition of such an obligation unconstitutional. To this day, there is disagreement about the basis for imposing liability on an employer for the torts of an employee when the sole nexus between the employer and the tort is the fact of the employer-employee relationship. See W. Prosser, Law of Torts § 69, p. 459 (4th ed.1971). Nonetheless, two justifications tend to stand out. First is the common sense notion that, no matter how blameless an employer appears to be in an individual case, accidents might nonetheless be reduced if employers had to bear the cost of accidents. See, e.g., ibid.; 2 F. Harper & F. James, Law of Torts, § 26.3, pp. 1368-1369 (1956). Second is the argument that the cost of accidents should be

Page 436 U. S. 694

spread to the community as a whole on an insurance theory. See, e.g., id. § 6.5; Prosser, supra at 459. [Footnote 58]

The first justification is of the same sort that was offered for statutes like the Sherman amendment:

"The obligation to make compensation for injury resulting from riot is by arbitrary enactment of statutes, affirmatory law, and the reason of passing the statute is to secure a more perfect police regulation."

Globe 777 (Sen. Frelinghuysen). This justification was obviously insufficient to sustain the amendment against perceived constitutional difficulties, and there is no reason to suppose that a more general liability imposed for a similar reason would have been thought less constitutionally objectionable. The second justification was similarly put forward as a justification for the Sherman amendment: "we do not look upon [the Sherman amendment] as a punishment. . . . It is a mutual insurance." Id. at 792 (Rep. Butler). Again, this justification was insufficient to sustain the amendment.

We conclude, therefore, that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government, as an entity, is responsible under § 1983. Since this case unquestionably involves official policy as the moving force of the constitutional violation found by the District Court, see supra at

Page 436 U. S. 695

436 U. S. 660-662, and n. 2, we must reverse the judgment below. In so doing, we have no occasion to address, and do not address, what the full contours of municipal liability under § 1983 may be. We have attempted only to sketch so much of the § 1983 cause of action against a local government as is apparent from the history of the 1871 Act and our prior cases, and we expressly leave further development of this action to another day.

nolu chan posted on 2017-08-19 20:33:07   Reply   Private Reply