TWO FEDERAL COURTS ESTABLISH MAJOR VICTORIES FOR OUR CONSTITUTIONAL RIGHTS

Two separate federal appeals courts recently released decisions strongly affirming our constitutional rights.

The first victory came from the U.S. Court of Appeals for the Ninth Circuit in Seattle, Washington, which gave a strong message that "just because speech provokes negative reactions doesn’t mean it’s not protected!"

On June 24, 2022, Meinecke went to downtown Seattle to evangelize to individuals attending an abortion rights rally. He wanted to share his faith by reading his Bible in a conversational tone.

According to Meinecke, he held up a sign, read from the Bible, and handed out Christian literature. This didn’t go well for him, according to his allegations.

Protestors surrounded Meinecke after about an hour. One protestor seized Meinecke’s Bible. Meinecke retrieved another Bible from his bag and continued reading aloud. Another protestor grabbed hold of—and ripped pages from—the new Bible.

Things then escalated. Meinecke was then carried across the street by protesters. He immediately returned to where he had been standing. He was once again accosted by these protesters, who took things even further.

While people gathered on the street, however, some approached Meinecke, knocked him down, and took one of his shoes.

That’s when the Seattle PD, which had officers on the scene already due to the pro-choice protest, decided to get involved. The two parties dispute what officers actually told the street preacher. He maintains they told him to go somewhere where no one could hear or see him. The city’s lawyers claim the officers simply told Meinecke to go back across the street to where the protesters had deposited him earlier. Either way, he refused to comply and was arrested for obstruction, mainly this part of the city statute: “[i]ntentionally refuses to cease an activity or behavior that creates a risk of injury to any person when ordered to do so by a police officer.”

Meinecke appeared to be the only person at risk of injury. Curious minds wonder if that counts under the law since it says “any person.” Despite this, he was held for two hours at the PD, but ultimately was never booked or charged.

Two days later, Meinecke did pretty much the same thing while attending the city’s PrideFest. And that incident pretty much ended up the same way.

Eventually, PrideFest attendees noticed Meinecke’s presence. As the district court found, they began “dancing near him, holding up a flag to keep people from seeing him,” and making “loud noises so he could not be heard.” According to his complaint, “a couple of attendees stood close to Meinecke and howled and barked like dogs, and mocked Meinecke, while he read passages from the Bible. Meinecke did not engage with them.” Another individual poured water on Meinecke’s Bible. Meinecke kept reading aloud.

After a couple of hours, more PrideFest attendees gathered around Meinecke and began yelling. This attracted the attention of about ten law enforcement officers, who asked Meinecke “to move to a public area located outside the park.” Meinecke declined and continued to read from his Bible. A PrideFest attendee shouted at the officers, demanding Meinecke’s removal. The officers then told Meinecke “that they were imposing a ‘time, place, and manner’ restriction on him and ordered him to leave the park.” Again, Meinecke declined to leave. The officers told Meinecke “that he was posing a risk to public safety,” and they again demanded he leave the park. Meinecke told the officers that he was not in any danger. The officers then arrested Meinecke for obstruction.

This time, however, he was booked, charged, and released on bond. 

Represented by the Center for Religious Expression (CRE), he sued the city, its PD, and the officers involved in his arrests. While Meinecke is seeking an injunction, he is not challenging the constitutionality of the law itself… just the way it was enforced against him in particular.

In an astounding victory, the U.S. Court of Appeals for the Ninth Circuit agreed with Meinecke that these arrests were clear violations of his First Amendment rights, and that in both situations, the Seattle police improperly silenced Meinecke by caving in to the whims of unruly mobs, enforcing a classic heckler’s veto as a matter of policy.

"We agree with Meinecke: the restrictions on his speech were content-based heckler’s vetoes, and the City has not carried its burden to justify those restrictions," Judge Jay Scott Bybee, nominated by President George W. Bush, wrote.

It is apparent from the facts, including the video available from police body cameras, that the Seattle police directed Meinecke to leave the area because of the reaction his Bible-reading provoked at the Dobbs and PrideFest protests.

That’s now how it works. The hecklers don’t get to set the government’s agenda. The city argued that’s not what actually happened — that officers responded to the people responding to Meinecke’s speech with harassment, violence, and theft by deciding Meinecke was the real problem here. The city claimed this was nothing more than the usual “time, place, and manner” restrictions governments can apply when it engages in constitutional regulation of speech.

But that’s the thing: this isn’t that. This is the other thing, as the Appeals Court points out:

[I]ncanting the words “time,” “place,” and “manner” over a content-based restriction does not transmute it into one that is content neutral. The evidence in the record is indisputable that the officers curbed Meinecke’s speech because of the potential reaction of the listeners.

The city also argued that the officers’ commands would have merely inconvenienced Meinecke, rather than silenced him. Ta-da! No First Amendment violation! Wrong again, says the court:

Even assuming that the officers simply instructed Meinecke to cross the street, their directions burdened Meinecke’s speech. Meinecke had a right, just as those participating in the anti-Dobbs rally or the celebration of PrideFest, to use public sidewalks and streets for the peaceful dissemination of his views. Like the petitioners in McCullen, Meinecke “hands out literature” and “engages in conversation and answers questions” about Christianity. The evidence is even clearer as to the officers’ restrictions during PrideFest. The district court recognized that the officers “ordered him to leave the park” altogether. When the police single out a nonthreatening speaker for discipline, the government is simply choosing sides in the debate and using the obstruction statute to enforce its choice.

Back it goes to the lower court with an order to grant Meinecke’s request for an injunction!

As the Appeals Court notes in the decision, the officers had plenty of options when handling these two altercations and chose the worst option both times. If the city wants to enforce its obstruction statute it can still do that. It just can’t do it in a way that violates constitutional rights.

“We are pleased the Ninth Circuit recognized the impropriety of Seattle’s heckler’s veto policy.  The holding provides much needed relief,” said CRE Chief Counsel, Nate Kellum. “Free speech is fundamental to any civilized society. It is the unpopular speech like that of Meinecke’s that requires constitutional protection.”

The second victory came from the U.S. Court of Appeals for the Tenth Circuit in Denver, Colorado, which rejected a police officer’s appeal that he should get qualified immunity for arresting an independent journalist who was filming at a New Mexico oil refinery for a story on refinery operations. The ruling makes it crystal clear that concealing one’s identity to the police without there being an underlying offense doesn’t create probable cause for the officers to make any arrests.

The federal court found that even in a state such as New Mexico that requires individuals suspected of crimes to identify themselves to police on demand, a valid demand for ID must be predicated on “reasonable suspicion” that an individual has committed some other predicate crime.

"Our cases are clear: law enforcement needs reasonable suspicion of a ‘predicate, underlying crime,’ not a generalized suspicion a person is simply up to no good, to support an arrest for concealing identity," the Court stated loud and clear.

Albert Bustillos is an independent journalist who was filming for a story on how an oil refinery near Artesia, New Mexico “works to turn fuel into gas or asphalt.”  Reporting has suggested that the refinery is “one of the nation’s top emitters of air-polluting benzene.” Although there are fences and barriers in the refinery area, there are also public pathways on which Bustillos contended he remained while filming.

Nonetheless, plant security guards approached Bustillos. He explained he was filming a story and would remain on public property. Security then reported to 911 what they called a “suspicious person” filming in the area.  Several Artesia police approached Bustillos, including Corporal David Bailey, and demanded to see his ID.

Bustillos explained what he was doing as an independent journalist on public property and refused to turn over ID because, as he explained, “he had not broken the law” and thus could not be required to do so. Bailey nevertheless arrested him without a warrant for failing to provide ID. The case against Bustillos was later dismissed, and he filed a civil rights suit under the First and Fourth Amendments against Bailey and Artesia. Bailey claimed he was entitled to qualified immunity and that the case against him should be dismissed. A federal district court rejected the immunity claim, and Bailey appealed to the Tenth Circuit.

Judge Veronica Rossman, nominated by President Joe Biden, wrote a 2-1 decision that rejected Bailey’s appeal and affirmed the district court’s ruling that Bustillos’ case should go forward. Based on the record and established case law, Rossman explained that to justify a warrantless arrest for failure to provide ID, Bailey must have had “reasonable suspicion” of a more serious “underlying crime.” She specifically rejected Bailey’s claim that his “generalized suspicions” that “something was amiss” and that Bustillos “seemed suspicious” was sufficient, noting that this would allow police to improperly rely on “[i]nchoate suspicions and unparticularized hunches” to comply with the Fourth Amendment.

Rossman went on to consider Bailey’s claims that he had reasonable suspicion of underlying crimes, including disorderly conduct, potential terrorist activity, loitering, and trespass. Essentially, tpolice tried to “bootstrap” their demand for Mr. Bustillos to identify himself by telling him on the spot, and later telling the court, that they suspected him of concealing his identity. But as Mr. Bustillos himself explained clearly, explicitly, and correctly to the police when they stopped him, that isn’t sufficient. He could only be required to identify himself if the police already had a reasonable articulable basis to suspect him of some other crime.

Judge Rossman agreed that none of the ex post facto justifications offered by the police constituted a “reasonable” basis to have suspected Mr. Bustillos of any crime. She specifically explained that the claim that Bustillos entered on private property to do filming is not “sustainable on the record before us.” All three judges agreed with the district court that Bailey had no proper basis to claim qualified immunity from Bustillos’ “First Amendment retaliation claim” for arresting him while filming a news story. "A demand for a suspect to identify themselves must be supported by reasonable suspicion of some other crime," Judge Rossman found.

Judge Rossman’s decision is obviously important to allow Albert Bustillos to proceed with his claim for damages and for justice against Corporal Bailey. More broadly, it also reinforces and sets important precedent that limits police immunity claims against lawsuits seeking to uphold First and Fourth Amendment rights. Essentially, this ruling puts a hard brake against “stop and identify” laws which are ploys to get away with baseless demands for pedestrians to identify ourselves.

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