War on Cameras

Dallas Transit Agency Pays $345,000 to Settle Lawsuit by Photographer Arrested for Taking Pictures

DART police officer Stephanie Branch illegally arrested Avi Adelman after he defied her unlawful orders to stop photographing paramedics treating an overdose.

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Dallas Area Rapid Transit (DART) will pay freelance photographer Avi Adelman $345,000 to settle the lawsuit he filed after he was illegally arrested in 2016 for taking pictures at a train station. The settlement follows a federal appeals court's September 20 ruling rejecting a qualified immunity claim by Stephanie Branch, the DART police officer who arrested Adelman for trespassing and then repeatedly lied about the incident.

Adelman had been photographing paramedics as they treated a man who had overdosed on a synthetic marijuana substitute. He spent a day in jail, but the charge against him was dropped a week later. An internal investigation found that Branch had arrested Adelman without probable cause and in violation of DART's photography policy. The report also said Branch had made 23 "false or inaccurate statements" about the circumstances of Adelman's arrest, including her claim that he was standing too close to the paramedics, who supposedly wanted him to step back. She was suspended for three days as a result of the investigation but is still employed by DART.

A federal judge ruled that Branch was entitled to qualified immunity against Adelman's claim that she had violated his First Amendment rights, because case law in the 5th Circuit had not clearly established the right to take photographs of first responders in public places at the time of his arrest. But the court allowed Adelman to proceed with a claim that his unlawful arrest violated the Fourth Amendment's ban on unreasonable seizures. Branch asked the U.S. Court of Appeals for the 5th Circuit to reverse that decision.

The appeals court ruled that Branch was not entitled to qualified immunity against Adelman's Fourth Amendment claim. "No reasonable officer under these circumstances would conclude that she had authority to eject a person complying with DART policies from public property—and then arrest that person for criminal trespass when he failed to depart," the court said.

A DART policy established in June 2014 allowed people to take pictures at its stations as long as they do not "interfere with transportation or public safety activity." The 5th Circuit pointedly rejected Branch's excuse that she was not familiar with that policy, which was adopted while she was on sick leave. "Branch's mistake was not reasonable," the court said in a footnote. "She didn't misinterpret an unclear policy or law; she simply failed to learn about DART's updated policy. And 'an officer can gain no Fourth Amendment advantage through a sloppy study of the laws [s]he is duty-bound to enforce.'"

A DART audio recording of the incident that led to Adelman's arrest showed that everyone else at the scene recognized that Branch was out of line. "He was just taking pictures, right?" one paramedic said. "Why is she going crazy?" Elmar Lee Cannon, one of Branch's fellow DART officers, replied: "I don't know. That's going to be on her. He can take all the pictures he wants. That's why I'm not getting involved in that." Another paramedic concurred, saying, "I don't know where that idea [that Ademan had committed a crime] came from…because there is freedom of the press."

Adelman, a longtime defender of the right to record public events, created an educational program on the subject for police officers. In settling the lawsuit, DART rejected his request that it post its photography policy on its website. "Many transit agencies around the country post their photography in public policies on their websites," Adelman notes in a press release, including systems in Philadelphia, New York City, Los Angeles, St. Louis, New Orleans, Houston, and San Francisco. He says he will donate $2,500 from his settlement to the National Press Photographers Association for legal advocacy and another $2,500 to the Freedom of Information Foundation of Texas.

"I was arrested—and spent a day in jail—on a bogus 'throw-down' charge of criminal trespass for one reason only: to stop me from taking photographs of paramedics treating a patient in public view on public property, which is a lawful activity," Adelman says. "The subjective personal opinions of [law enforcement] personnel should never be allowed to interfere with lawful and protected First Amendment activities. I will work with, and support, First Amendment advocacy groups to make sure arrests like this never happen again, and to defend the photographer vigorously when it does happen."

I called DART's media relations department to ask about the source of the funds for its $345,000 settlement payment. I will update this post if and when I get a response, but I suspect the money will come either from DART's budget or from a liability insurance policy. Either way, Branch herself is not on the hook, which illustrates a point made by UCLA law professor Joanna Schwartz. Schwartz investigated the practices of 81 law enforcement agencies and found that "police officers are virtually always indemnified" in civil rights cases. During the period she studied, "governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement."

That practice weakens the deterrent effect of lawsuits like this one, even if they overcome the obstacles created by the misbegotten qualified immunity doctrine. At the same time, the routine indemnification of police officers who violate people's constitutional rights refutes a claim often made by the doctrine's defenders, who worry that the threat of personal liability will have a chilling effect on legitimate policing.

Update: A DART spokesman says the agency is still "making sure we have all the signatures" on the settlement agreement and can't comment on the source of the funds until that happens.

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    PORTLAND, Ore. (AP) — Trisha Preston was transporting a patient in a mental health crisis in the back of her ambulance when suddenly the woman undid her seatbelt, jumped off the gurney and began attacking the veteran paramedic, punching her and pulling her hair. By the time Preston’s partner wrestled the woman to the floor, Preston had a concussion and bite marks on her arms.

    “It took me a good couple of months to get it out of my head. I was constantly thinking about it,” Preston said. “We’re all on high alert these days.”

    Her experience is part of a rash of attacks in recent months on paramedics in this Pacific Northwest city as they respond to a growing number of 911 calls for patients in mental health or drug-related crises. The uptick in violence is so severe that the private ambulance company that holds Portland’s 911 contract is training more than 500 of its employees in defensive tactics.

    1. A cop got shot once in a traffic stop, so all traffic stops should require perps to exit their vehicle, strip and lay prone/spread in the middle of the adjacent travel lane. A couple bruised civil rights are nothing if the thin blue line gets home safe tonight, amirite?

  2. “He was just taking pictures, right?” one paramedic said. “Why is she going crazy?” Elmar Lee Cannon, one of Branch’s fellow DART officers, replied: “I don’t know. That’s going to be on her. He can take all the pictures he wants. That’s why I’m not getting involved in that.”

    Well I think somebody’s going to be driving an ambulance with a busted tail light.

    1. The other cop is a hero for not participating in the illegal arrest.

      1. The other cop is a hero for not participating in the illegal arrest.

        A hero? Is this how low our standards have fallen?

        He’s no hero. If he wanted to be a hero, he should have walked over to his colleague, pulled her aside, and made very clear to her that she was violating the photographer’s civil rights. Then, they should have uncuffed the photographer, and sent him on his way, with an apology. Instead, he was happy to stand by while one of his fellow officers committed a rights violation in front of him.

        That should be classified as dereliction of duty.

        1. You must be new here.

          1. lol i always think “OBL?” now for haughtiness i don’t recognize

        2. “If he wanted to be a hero, he should have walked over to his colleague, pulled her aside, and made very clear to her that she was violating the photographer’s civil rights. Then, they should have uncuffed the photographer, and sent him on his way, with an apology.”

          No, if he wanted to be a hero, he should have intervened before his colleague had the photographer in handcuffs.

      2. So a cop allowing another cop to be dirty in front of them without stopping them or speaking up is the definition of a hero?

    2. I get there’s a whole “thin blue line” culture, but seriously, if you see one of your colleagues about to fuck up like this, why wouldn’t you step in? Even if you know she won’t be disciplined per se, she’s at least gonna get reamed out for costing them 350 grand. Seems like a fellow cop would at least be willing to step over and say “hey, this is gonna blow up in your face, you should uncuff him.”

      1. My guess is she’s not well liked, and her behavior here could hint at the reason.

  3. In socialism news.

    She called the election results “as close to a referendum on Amazon tax as possible,” and also “a mandate for progressive ideas” more broadly, as supporters chanted “rent control, rent control, make Seattle affordable.”

    1. Is it possible they’re trying to get you to repeal the rent control? After all, they want you to make Seattle more affordable apparently.

  4. A DART policy established in June 2014 allowed people to take pictures at its stations as long as they do not “interfere with transportation or public safety activity.”

    Are we making a legal miscalculation here?

    Why do we combine these two concepts? Why not, “You’re allowed to take pictures at DART stations.”

    Then, in an entirely separate rule, not related to the photography rule, it might read: “It shall be illegal to interfere with transportation or public safety activity.”

    When we combine the photography rule with an obvious and reasonable restriction, that it can’t interfere with public safey or the transportation, that makes it seems like there are limits to taking photographs that aren’t applied to other activities, such as riding the trains etc.

    1. Because they want to leave open the FYTW option of preventing photography, you know, for public safety.

      1. I hear that being photographed steals your soul.

        1. Many cops have already sold theirs.

  5. And ‘an officer can gain no Fourth Amendment advantage through a sloppy study of the laws [s]he is duty-bound to enforce.’

    Yeah, right. Ignorance of the law being no excuse only applies to you and me.

  6. It the officer was suspended for THREE DAYS! Surely that’s punishment enough!

    Oh, it wasn’t from spikes through her flesh.

    Never mind.

  7. A year after this arrest Turner v Driver made the right to record case law so now the cops definitely don’t have qualified immunity.

  8. “[C]ase law in the 5th Circuit had not clearly established the right to take photographs of first responders in public places at the time of his arrest.” This is a bullshit moral inversion, where you’re not free to act until the government has decided it will permit you to act. I’m free to do whatever the fuck I want short of violating someone else’s rights. In the individual-vs.-government question, only the government has to act by permission.

    1. I don’t think you’re really understanding the issue. The comment about “clearly established” is a boundary not on the photographer but on the ability to apply liability to the policeman.

      Think of it this way. There is no law against X. You are doing X. As you say, it’s not illegal. The cop, however, thinks you’re doing Y. Y is illegal. The cop arrests you, wrongly as it turns out. Charges are dropped and you get released. Can you sue the cop?
      Answer: If the cop had good reasons to believe you were doing Y, no. The cop was wrong – wrong enough to get you released but not wrong enough to get sued over.

      Now slightly more complicated. The cop sees you doing X and (wrongly but sincerely) thinks that X is illegal. It’s not, charges are dropped and you get released. Can you sue the cop this time?
      Answer: Maybe. If the cop said X is illegal but the Supreme Court said 20 years ago that no, X is legal, the cop is so wrong that you can sue. But if the cop said X is illegal and some courts say yes but others say no – that’s going to go in the cop’s favor. The threshold for your ability to sue the cop for being wrong is when the law is “clearly established”.

      Now, I will freely agree that that threshold is twisted and abused way too often. Some courts have required the definition of “clearly established” to so exactly describe the situation that it has to happen the second time on a Monday while standing on one leg, etc. But that abuse is not relevant to the core principle.

      Again, in all of these scenarios, you were innocent and got released as soon as the mistake got sorted out. The “clearly established” threshold only affects whether you can punish the cop for being wrong.

      1. This is a pretty good summary of the concept. Thanks for saving me the time. As a side note, the “clearly established” clause is the thing that makes qualified immunity so easy to abuse (due to the narrowness abuse you mentioned) and thus so toxic.

        While I personally think we could do without qualified immunity entirely (for the reason mentioned in the article – the government is usually on the hook so i think the chilling effect is pretty marginal) if SCOTUS wanted to revisit the issue I’m nearly certain they could find a majority of the current court willing to articulate a more formal and limited way of applying the “clearly established” idea that would greatly reduce the malignancy of qualified immunity.

  9. I wonder how much awards are inflated because everyone knows the deep pockets of the taxpayers pay the verdict debt.

    I wonder if they would decrease if the police were personally liable, and if the jury knew that.

    1. I think probably not, on both counts (though I suppose doubting the first entails doubting the second automatically).

      Average people – particularly the sort who show up to and get selected for jury service – tend to have a rather sizeable good faith assumption about government, and it usually has to fuck up pretty spectacularly to get a jury to punish them harshly. I’ll admit the social science on this one is a little dated – it’s possible it’s changed a lot in the last fifteen years, but I’m skeptical of that assertion.

      As to the second point, even if the first were true: if police officers were personally liable, they’d be in the same situation as doctors, and would use the same solution, i.e. malpractice insurance. And I think it’s pretty damned unlikely that juries would award millions in damages against doctors who killed patients by accident but give a pass to cops who shot them on purpose.

      1. Malpractice insurance for LEOs would probably be unaffordable. It’s very expensive for doctors, in a field where practitioners are high-achievers who usually care about the interests of patients. So doctors’ objectives are aligned with insurer objectives. Now contrast that population with LEOs, who don’t give a shit about those with whom they come in contact.

  10. Times have really changed since the LP began siphoning off spoiler votes. When I lived in Dallas the cops missed no opportunity to beat the crap out of hippie potheads and anyone so foolish as to try to help us. The photographer would have likewise been beaten, arrested, a throwdown joint dropped into Avi’s gear bag would then do for a year or two in the state pen.

  11. >>I called DART’s media relations department to ask about the source of the funds for its $345,000 settlement payment.

    used to need City Hall’s approval for any settlement >$5,000.00 ask them if they got that too.

  12. Let me correct this:
    Dallas *TAXPAYERS* Pay $345,000 to Settle Lawsuit by Photographer Arrested for Taking Pictures

    1. That’s exactly the case. You’d think heads would roll over this, and in private business they would. No supervisor would blow off a $345,000 error in basic operations carried out by an arrogant liar…unless they worked in government.

  13. “The report also said Branch had made 23 “false or inaccurate statements” about the circumstances of Adelman’s arrest, including her claim that he was standing too close to the paramedics, who supposedly wanted him to step back. She was suspended for three days as a result of the investigation but is still employed by DART.”

    We will not allow our officers to lie 25 or more times per case proclaims DART.

  14. In California, police reports that are used as evidence in legal proceedings are considered court documents. I don’t understand why the courts don’t prosecute 4 perjury or fraud when officers lie on these reports. It is clearly established that it is a crime to introduce fraudulent documents to the court. A lie on the report is perjury

  15. “Incompetent police officer costs the Dallas taxpayer $3345,000.”

    There. Fixed it for you.

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