The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Billy Binion here at Reason reports:
The city of Baton Rouge tried to throw a law professor in prison after he shared publicly available body camera footage showing police officers strip-searching a minor in public. On Friday, a federal judge ruled that this violated the First Amendment.
That footage, originally shared with Reason, was captured at a 2020 traffic stop. Baton Rouge Police Department (BRPD) officers cuffed 23-year-old Clarence Green and his 16-year-old brother, pulling down their pants on the sidewalk to look for drugs. Officer Troy Lawrence Jr. and then–Sgt. Ken Camallo subsequently went to the family's home and searched it, weapons drawn, without a warrant.
When the story sparked considerable outrage, the government zeroed in on Thomas Frampton, the attorney who represented the Greens and disseminated the clips, which were already a part of the public record. During a May press conference convened to address the video, East Baton Rouge Parish Attorney Anderson "Andy" Dotson III notified Frampton that the government would seek to hold him in contempt of court, which carried up to six months in the East Baton Rouge Parish Prison.
It takes a lot for a federal court to enjoin a pending state court proceeding (so-called Younger abstention generally precludes such injunctions), but here the court concluded that the requisite showing had been made. From the decision, in Frampton v. City of Baton Rouge:
The [City's criminal contempt] Petition includes a rule to show cause why Frampton should not be held in contempt of the Juvenile Court … for releasing dash camera and body camera video footage taken by BRPD officers which allegedly documents misconduct by BRPD and captures the arrest and search of a juvenile….
Frampton was [exercising] a constitutionally protected right when he issued the press release critical of BRPD and shared the BRPD Video on a media platform which allegedly supported that criticism. This prong is easily met as this represents a classic example of exercising the right of free speech…. [And] a "major factor" motivating the City/Parish's Contempt Motion was its desire to retaliate against Frampton for his posting the press release and Video on the media platform…. The Court finds the overwhelming evidence in this case shows that the City/Parish acted in bad faith and in retaliation against Frampton for Frampton's issuance of a press release and Video which cast BRPD in a bad light….
First, it is undisputed that months before the City/Parish filed the Juvenile Court Petition and Contempt Motion, BRPD itself released the Video (which included the search and arrest of F.B.) to the United States Attorney without requesting or obtaining the permission of the Juvenile Court and without placing any warnings on the Video or placing any restriction on its use or dissemination….
It is undisputed that at some time before the November 20, 2020 Motion to Suppress hearing (some six months before the City/Parish filed the Juvenile Court Petition and Contempt Motion) the United States provided the BRPD Video to Green's attorney Mark Upton, the Federal Public Defender, and did so without warnings or restrictions of any kind. It is undisputed that at least by November 20, 2020, the BRPD Video in question was entered into evidence and the public record of Green's criminal proceeding and that it was so entered without anyone asking for permission of the Juvenile Court, without being filed under seal or being marked confidential, and without restrictions of any kind being placed on its use or further dissemination.
It is undisputed that Green's criminal defense lawyer, the Federal Public Defender, with his client's permission, provided a copy of the BRPD Video to the Green family's civil attorney Frampton, without requesting permission and without restriction. It is undisputed that by January 21, 2021 (some four months before the City/Parish filed the Contempt Motion), the Baton Rouge Advocate acquired a copy of the Video, probably from the Clerk of this Court again, without requesting permission of the Juvenile Court or placing restrictions. An article in the Advocate which described parts of the Video was published on January 12, 2021.
It is undisputed that in March of 2021, during settlement negotiations of Green's civil case, Frampton made the City/Parish attorneys aware of the fact that he possessed a copy of the Video. By March 25, 2021, the City/Parish knew that Frampton did not get the Video by way of his subpoena request to the City/Parish since that request was withdrawn on that date. City/Parish lawyers voiced no question or concern regarding Frampton's possession of the Video nor were they concerned enough to inquire or investigate how he obtained it….
City/Parish attorney Deelee Morris claimed in her testimony before this Court that she was unaware of the November 20, 2020, Green Motion to Suppress hearing at which the Video was made a part of the public record in that case…. Ms. Morris' sworn testimony is directly contradicted by the record in U.S. v. Green which shows that, on January 6, 2021, over four months before the Contempt Motion, Deelee Morris herself requested the transcript of the Motion to Suppress hearing. In those intervening months, the City/Parish took no action against the BRPD, the Assistant U.S. Attorney or the Assistant Federal Public Defender for making the Video public without getting Juvenile Court permission. It was only on the morning after Frampton issued a press release critical of BRPD's handling of the minor's arrest, supported by the BRPD Video, that the City/Parish filed its Contempt Motion and then, only against Frampton….
Not only was reasonable inquiry not made before filing the Contempt Motion, but, in addition, the City/Parish failed to give the minor (whose interests it claims to be protecting) or the minor's lawyer (Frampton), notice and an opportunity to be heard before asking the Juvenile Court Judge to sign the show cause order ex parte. This failure occurred despite the fact that Art. 412(E)(3) of the Children's Code requires both….
Defendants claim this pursuit of sanctions is motivated not by retaliation but is based on its interpretation of the Children's Code. The Defendants' position is belied, however, not only by the circumstances and timing of its filing of the Contempt Motion but by its conduct both before and after the Contempt Motion was filed. First, Defendants admit that Frampton is the only person the City/Parish has ever attempted to sanction under this provision of the Children's Code. They claim this is because "this is the first time the Parish Attorney's Office encountered what appears to be an unauthorized release of juvenile investigation materials [and] accordingly, this is the first time that the Parish Attorney's Office has filed a rule for contempt in Juvenile Court to put the question to the test." But this explanation is flatly contradicted by the fact that it was the City/Parish itself, through BRPD, that released the Video in the first place and did so without seeking an order from the Juvenile Court and did not follow the requirements for marking the Video with warnings regarding dissemination. …
In addition, if the real motivation of the City/Parish was to protect the juvenile's privacy and enforce the Children's Code, as it alleges, the Court would have expected the City/Parish to take action against whoever at BRPD first released the Video. Yet, no action of any kind (let alone a contempt motion) has ever been taken against BRPD or its personnel for releasing the Video in a manner which the City/Parish now argues violated the Children's Code and for which they seek sanctions against Frampton. The hypocrisy of the City/Parish's position is astounding….
UPDATE: I originally titled this post, "Law Professor Exonerated of Charges Over Sharing of Police Body Camera Footage," which I think is accurate; but I thought the new headline ("Federal Court Blocks State Prosecution of Law Professor for Sharing Police Body Camera Footage") better captures the unusual features of the case.