Philly Aims to Disabuse Young Photographer of 'High-Minded Ideas' About Having Constitutional Rights

ACLU says Philadelphia police routinely harass and arrest people like Coulter Loeb for photographing them.

Via: Coulter Loeb/Facebook Photo by: Kyle Depew

Philadelphia is the latest locale to insist that photographing police performing their jobs is a crime, not protected activity under the First Amendment. The city is currently in a court battle with Coulter Loeb, who was arrested in July 2011 for taking pictures of a Philadelphia police officer. 

Loeb, then a 23-year-old student at the University of Cincinnati and photographer for the school newspaper, was staying with a friend in Philadelphia. While taking pictures in nearby Rittenhouse Square, he saw an officer "escorting a transient woman out of the park," as Philly.com put it at the time. Loeb began taking pictures; the officer, George Gaspar Jr., told him to stop. Loeb refused, and was eventually arrested and charged with disorderly conduct. Gaspar alleges that Loeb put his hand on the woman's shoulder and interfered with his police duties.

The charges were later dropped, but Loeb filed a suit against the city with the aid of the American Civil Liberties Union, claiming his First and Fourth Amendment rights had been violated. The case comes before the U.S. District Court for the Eastern District of Pennsylvania this week. From AP: 

The American Civil Liberties Union, representing Loeb, argue that Philadelphia police routinely harassed or arrested people trying to photograph or videotape them. Yet a judge ruled before trial that the federal appeals court in Philadelphia had not "clearly established" a First Amendment right to photograph police as of 2011.

"Whether the Third Circuit will eventually decide to follow what appears to be a growing trend in other circuits to recognize a First Amendment right to observe and record police activity is, of course, not for this court to decide, even if there are good policy reasons (that) adopt that change," U.S. District William H. Yohn Jr. wrote in a January pretrial order that covered two similar cases.

He therefore threw out Loeb's free-speech claim, leaving a jury to weigh the Fourth Amendment issues of false arrest and malicious prosecution. The jury is expected to get the case Friday after a weather-related day off.

Here's Judge Yohn's opinion throwing out Loeb's free speech claim—"despite the fact that every court to rule on the matter has now determined that there is a First Amendment right to record on-duty police, and that according to the American Civil Liberties Union, Philadelphia police have a history of wrongful arrests in this area," as Radley Balko writes. "Welcome to the world of qualified immunity, where the police are only required to follow 'well-established' laws." 

In an opening statement to jurors, Assistant City Solicitor John C. Coyle said that, "Like many other college students, [Loeb] has some very high-minded ideas about government, the role of government in interactions with its citizenry and the role of the media in observing those interactions." 

Oh, those wacky college kids with their notion that they have constitutional rights! Good thing Philly officials and police are here to disabuse Loeb of such radical beliefs. 

Here's Reason TV on the battle between photographers and police in Los Angeles: 

Comments

[R C Dean]

Yet a judge ruled before trial that the federal appeals court in Philadelphia had not “clearly established” a First Amendment right to photograph police as of 2011.

Note how this statement assumes that rights are granted by judges, that no right exists unless and until a judge has affirmatively recognized it.

Its worse than saying that the Constitution grants rights. Its saying that it doesn’t matter what the Constitution says, you have no rights that have not been bestowed upon you by a judge.

[Charles Easterly]

Well observed.

[WTF]

“Welcome to the world of qualified immunity, where the police are only required to follow ‘well-established’ laws.”

I guess the First Amendment is not “well-established”.

[R C Dean]

Nope. Its just in the Constitution. What matters is what a judge bestows on you, not what a bunch of white slave owners wrote in a dead language 200 years ago.

[sarcasmic]

Well, yeah. Where else are your rights going to come from? Thin air? No, they need to be given to you by Authority. Duh. Everyone knows this.

[WTF]

This is what idiots like ‘Tony’ actually believe.

[sarcasmic]

It’s only natural if you see no difference between the right to your own property, and the “right” to the property of others.

[Pulseguy]

You didn’t create the park, nor the Police department that valiantly and bravely protects citizens in the park. You can only take that photograph because someone else invented the camera, aided no doubt by the tax code in some way, which furthers diminishes your right to anything.

What ‘right’ do you have to take photographs with a taxpayer supported camera of a park the GOVERNMENT made of a policeman the GOVERNMENT pays from its monies? You’re lucky you get to keep your opinions (to yourself, of course).

You didn’t make this the GOVERNMENT did.

Tony/Shreek/Bo/Palin’s Buttplug

[Hugh Akston]

Is there any bigger bullshit charge than disorderly conduct? It’s the civilized way for cops to run you in when they don’t like your attitude.

[WTF]

Resisting arrest, where there was no crime committed in the first place, is also a good one.

[DrGonzoAtNight]

Yeah, I would love to see the Laurel & Hardy version of that arrest:

“You’re under arrest.”

“For what?”

“Resisting arrest.”

“But what were you arresting me for that you now say I’m resisting being arrested for doing?”

“What? You’re resisting arrest, pal, turn around.”

“But what are you arresting me for?”

“Resisting arrest.”

[facepalm]

[DrGonzoAtNight]

Correction: I would like to see the Abbott & Costello version, not the Laurel & Hardy version… 😉

[Libertarian]

We are all photographers now.

[Scarecrow Repair]

Photogs sommes kulak.

(Pardon my French 🙂

[Irish]

This reminds me of that piece of shit Brit whose name escapes me who accused Ayaan Hirsi Ali of being a ‘Enlightenment Fundamentalist.’

I imagine she’s also an ‘anti-murder fundamentalist,’ and criticizing her for that makes about as much sense as criticizing her for her support of Western values.

Also, this argument:

“Yet a judge ruled before trial that the federal appeals court in Philadelphia had not “clearly established” a First Amendment right to photograph police as of 2011.”

is idiotic. You don’t need an appeals court to establish a First Amendment right, the district judge can do so of his own accord. If there’s no case law on the matter yet, then there’s no precedent that a district judge is required to uphold. He’s just using the lack of precedent to justify coming down on the cops’ side even though there’s no reason to do so.

It’s also ludicrous to argue that an appeals judge needs to ‘establish’ a right when the Constitution is pretty clear. Why didn’t this judge go to the Constitution (the highest legal authority in the land) rather than waiting to have his hand held by some pissant appeals judge in Philly?

[Idle Hands]

Speaking of asinine lawsuits did you see this?

WASHINGTON?A divided U.S. Supreme Court on Wednesday curtailed the use of the Sarbanes-Oxley corporate governance law in cases that aren’t about corporate fraud, ruling it couldn’t be used to prosecute a fisherman for destroying evidence he illegally harvested fish.

The decision is a setback for the government because the Justice Department increasingly has sought to use a Sarbanes-Oxley prohibition on evidence destruction in cases outside the corporate realm.

The ruling, for example, could have an immediate effect on the high-profile cases of two men charged with obstructing the investigation into alleged Boston Marathon bomber Dzhokhar Tsarnaev. A judge had postponed their sentencing until the Supreme Court ruled in the fisherman case.

Arkady Bukh, a lawyer for Boston defendant Azamat Tazhayakov, said he was still studying the fisherman decision but likely would ask a judge to exonerate his client in light of the high court’s ruling.

A jury convicted Mr. Tazhayakov last year of a Sarbanes-Oxley violation for removing a backpack and other materials from Mr. Tsarnaev’s College dorm room that were being sought by federal authorities.

We are doomed.

[JW]

Divided? The fuck?

We are doomed.

DOOMED.

[Deckard]

https://www.youtube.com/watch?v=gdJZhdi_-Tc

[DrGonzoAtNight]

I didn’t realize they were using Sarbanes-Oxley like that. Doesn’t surprise me, though, especially considering how much of the Patriot Act they’re now using to go after drug dealers, since they prefer to blow up terrorists rather than capture and try them in courts (like they said they wanted to do because they were all against drone-murder until they gained the White House).

[sarcasmic]

Because judges are on the same team as the cops. Naturally they’re going to side with them.

[Anonymous Coward]

The Brit you’re thinking of is Timothy Garton Ash, and his main “grievance” against Ali is that “photogenic woman = people pay attention when she moves her mouth to say woman stuff like Islam is backwards and Europeans and Americans occasionally do stuff right, when they aren’t busy Crusading, Colonising or Capitalism-ing” not that what she’s saying is true.

[Loki]

Why didn’t this judge go to the Constitution (the highest legal authority in the land) rather than waiting to have his hand held by some pissant appeals judge in Philly?

1. Because the constitution is, like, over a hundred years old or something and was written by icky white male cis-gendered slave owners, and therefore ireelevant.
2. Because this judge is incredibly stupid.

[sarcasmic]

What do you call the lawyer who graduated at the top of their law school class? Senior Partner.

What do you call the lawyer who graduated in the middle of their class? Junior Partner.

What do you call the lawyer who graduated at the bottom of their class? Your honor.

[Rich]

a judge ruled before trial that the federal appeals court in Philadelphia had not “clearly established” a First Amendment right to photograph police as of 2011.

To be fair, I’m sure that’s correct. So fucking what?

[Irish]

My immediate thought too. You don’t need an appeals court to say ‘this is covered by the first amendment.’ If there’s no prior precedent, the judge can do it himself.

[MJGreen]

Kind of hard to get precedent any other way.

[R C Dean]

Of course, its also incoherent.

Let’s take them at their word, and that there was no right to photograph police until a judge said so.

What about the case where he says so? That case is about something that happened before he declared the right to exist. Therefore, it didn’t exist when the actual event happened, did it? So the judge can’t really say “There is a First Amendment right to photograph the police, effective as of today, and so I’m going to rule against the cops for violating this right before it was even created”, can he?

But that’s not the way its done. When a judge finds that a right was violated, he always applies it to the case in front of him. So they don’t even follow their own jurisprudence.

[Rich]

I’m sure all this stuff makes sense to Jennifer Granholm.

[bassasaurusrex]

“So fucking what?”

No right in the Constitution is absolute. That’s why. I’m not saying I am 100% ‘OK’ with that, but the Court has held since it determined it had say in adjudicating these matters in Marbury vs. Madison that nothing in the Constitution is absolute. This is mostly due to the fact that it is called a Constitution and not a Code. Codes are absolute documents, Constitutions have long been held to have flexibility built into them. (thus why Congress passes laws comporting with the document whereas the few societies that still have Codes do not have legislative bodies doing that)

It is the same reason the first time a dickhead yelled ‘fire’ in a theater where there was no fire, they had to determine there is some limit on ‘free speech’ such as it is. I am of the mind that those limits should be as small and narrow as possible, however, if the court in their jurisdiction hasn’t determined what it is on a given amendment that hasn’t been reviewed by SCOTUS, then they must review it.

That being said, SCOTUS has already ruled that videotaping cops is legal as is audio recording them so I’m not sure why this circuit thinks they need an independent review of the matter. Anything they find that doesn’t jibe with SCOTUS precedent will be thrown out once it reaches SCOTUS. This judge honestly sounds like he is just giving a run around.

[JW]

Yet a judge ruled before trial that the federal appeals court in Philadelphia had not “clearly established” a First Amendment right to photograph police as of 2011

What do you call someone who finished in the bottom of their graduating class?

“Your Honor.”

[FUQ]

So Botard will be a judge. Great

[The Laconic]

What does this have to do with Scott Walker?

Meanwhile, make sure you check out ENB’s pink streaks if you haven’t already. They’re quite bold.

[FUQ]

Scott Walker doesn’t have a degree so he’s unqualified to even discuss this. He is only able to discuss abortion and whether Obama is a Christian.

[Francisco d'Anconia]

Yet a judge ruled before trial that the federal appeals court in Philadelphia had not “clearly established” a First Amendment right to photograph police as of 2011.

I expect nothing less to come out of the People’s Republic of Pennsyltucky, where the government grants you the right to exist. And the sheep say thank you.

[DrGonzoAtNight]

Pennsylvania is such beautiful country to be inhabited by such moronic people all around.

[Almanian!]

I was going to call this young, college kid “uppity”, but then I realized he’s not black…

/racist

[monikajulina]

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[theresajroosa]

my buddy’s half-sister makes $84 /hour on the computer . She has been without a job for ten months but last month her check was $12581 just working on the computer for a few hours. check this site out…..

????? http://www.netjob70.com

[Juice]

It’s a free press claim not a free speech claim.

[DrGonzoAtNight]

Site fail, I can’t see any text for this blog post. Just the headline and bylines and everything else except the actual text. What the hey?

[AD-RtR/OS!]

Sovereign Immunity tends to give one an elevated feeling of importance.
Removing their immunity and letting them stare impoverishment in the face might encourage a better attitude.

[Peterjmoran7]

This article is misleading….The case had nothing to do with taking pictures and he was not arrested for doing so….

It’s amazing to me that the Philadelphia Daily News writer ( http://bit.ly/1917X12 ) Julie Shaw still puts out the narrative that this student was wrongfully arrested for photographing the officer when we (the jury) heard all the facts and came to our decision.

We even met with the ACLU lawyers after the trial (which we did NOT have to do BUT they asked and we agreed) to answer questions regarding our unanamous decision.

We explained that both stories were different in certain areas so we first followed the law as it was written and then the evidence as it was presented and concluded that the student interfered with the police officer during his “business” as “both testified to” and after a “third” directive the officer arrested him….

Once again, taking pictures had nothing to do with it – the student took pictures over a 27 minute period with no incident.

That being said, the officer wasn’t on trial for violating the students 1st amendment rights – Taking pictures was never the issue….and even if the 1st amendment was in question the defense stipulated to the right to photograph the officer as perfectly legal…

I can say as jurors we ALL took this case seriously, after all it’s the constitution that protects each and every one of us, affording us the pursuit of happiness, life and liberty in this great country of ours.