Threatening to arrest for videorecording police officer clearly violates First Amendment

|The Volokh Conspiracy |

From Tuesday's decision in Barich v. City of Cotati (N.D. Cal.):

[George] Barich alleges that [Police] Chief Parish violated his First Amendment rights by threatening to arrest him if he recorded Chief Parish. Barich's motion for summary judgment on this claim is granted ….

In his deposition testimony, Chief Parish explained that he was uniformed, armed, and present in his capacity as Chief of Police at a Cotati City Council meeting on April 22, 2014. After the meeting was over, Chief Parish confronted Barich outside the city council chamber. In his own declaration, Chief Parish recounted what happened next: 'I told [Barich] that if he were recording me—and thereby lying to me by telling me that he was not—that I would arrest him.' In his deposition testimony, Chief Parish explained that he 'wanted to make sure [he] wasn't being recorded.'

From these undisputed facts, it is clear that Chief Parish violated Barich's First Amendment rights. To succeed on a First Amendment claim, a plaintiff must prove that a state actor did something that 'would chill … a person of ordinary firmness from future First Amendment activities,' and that the state actor's conduct was motivated (at least in part) by a desire to chill the First Amendment activity. Filming a police officer on duty is protected First Amendment activity. And threatening to arrest someone 'is enough to chill First Amendment rights.' …

Nor is Chief Parish entitled to qualified immunity. It has been clear in this circuit since at least 1995 that the First Amendment protects a 'right to film matters of public interest.' In other words, 'the First Amendment protects the filming of government officials in public spaces.' Restrictions on recording police officers in public places 'interfere … with the gathering and dissemination of information about government officials performing their duties in public.' …

Barich also alleges that Chief Parish violated his First Amendment rights by threatening to arrest him for calling a public official (a planning commissioner for the City of Cotati) a 'liar.' The defendants' motion for summary judgment on this claim is denied. (Barich has not cross-moved for summary judgment on this issue.)

On this claim, many facts are disputed. According to Barich, he turned toward the planning commissioner as he was leaving the city council chamber, and—from a considerable distance away—simply called the planning commissioner a 'liar.' In this account, Barich was peaceful and nonthreatening; he did not raise his voice or his hands. According to witnesses for the defendants, Barich 'towered' over the planning commissioner and 'bent down so that his face was just a few feet from' the planning commissioner's. In this account, Barich's 'face was red and he yelled with such vehemence and ferocity that [the planning commissioner] feared for [his] safety'; Barich 'gesture[d] with his hands' in a way that suggested that 'he was either going to hit somebody or that violence would otherwise erupt.'

This factual dispute precludes summary judgment. Because it is undisputed that Barich's exchange with the planning commissioner occurred after the city council meeting was over, cases concerning a city's authority to manage its governmental meetings are not relevant. Instead, the question is whether Barich's speech fell outside the First Amendment because it constituted 'fighting words,' or a 'true threat.' If a jury were to credit the defendants' version of events, it could reasonably find that either of these two conditions was satisfied. If a jury were to credit Barich's version of events, it could not.

For similar reasons, Chief Parish is not entitled to qualified immunity…. If the facts are as Barich contends, it would have been obvious to every reasonable officer that he could not threaten to arrest Barich for what he had done. 'Police officers have been on notice at least since 1990 that it is unlawful to use their authority to retaliate against individuals for their protected speech.' …