The Volokh Conspiracy
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"It Is Unfortunate That the Video of This Encounter Will Likely Go The Way of the Lost Ark Because It Doesn't Make for Good Clickbait"
From Montana Supreme Court Justice James Jeremiah Shea's concurring opinion Tuesday in City of Kalispell v. Doman:
I concur fully with the Court's Opinion. I write separately only to highlight the exchange that occurred between Officer Minaglia and Doman, as set forth in the Court's Opinion. As the Court accurately notes, nobody disputed Doman's right to film the officers conducting the traffic stop—this included Officer Minaglia, whose first words to Doman upon exiting his car were: "Hey brother, I don't mind if you film … just do me a favor and kind of go a little bit a ways."
In response to Doman's statement that he was engaging in "First Amendment protected activity," Officer Minaglia stated "Right, I agree." As Doman repeatedly asserted his right to video the traffic stop, Officer Minaglia repeatedly agreed with him, stating: "I agree, just do me a favor and get out of where we're working, and you can totally film from right over here by this tree." It was only after Officer Minaglia's repeated requests that Doman move back from the scene while he recorded the traffic stop that Officer Minaglia arrested Doman for obstructing a peace officer.
Because Doman failed to preserve his constitutional arguments for appeal, this case ends up being only about whether or not the State presented sufficient evidence at trial to support Doman's conviction of the misdemeanor charge of obstructing a peace officer. That being the case, this Opinion likely will not warrant much, if any, notice from either the public or the press.
The pity in that is what will also be lost is an accounting of the professionalism that Officer Minaglia exhibited in this encounter. Regardless of whether you think that Doman was guilty of obstruction or even what you might think of the merits of his constitutional challenges—had they been preserved—you would be hard pressed to view the video of this encounter and conclude that it should have been handled any differently from a public engagement standpoint.
This bears noting because we are constantly inundated with images of violent and confrontational encounters between law enforcement and citizens who are attempting to record and document their interactions with law enforcement. The encounter in this case stands in stark contrast to those images. But when those are the only images you see, it's easy to think that is how these encounters typically unfold.
Having reviewed the record in countless cases that involved encounters between law enforcement and the public during my tenure on the Court, I would contend that Officer Minaglia's handling of this situation represents the norm rather than the exception, at least here in Montana, and stands as an example of how these encounters can be and are professionally handled. It is unfortunate that the video of this encounter will likely go the way of the Lost Ark because it doesn't make for good clickbait.
Here's what appears to be the video; the interaction with the police officer starts at around 1:45 into the 2:31 running time:
Readers can decide for themselves whether this is indeed an "[o]ut of control Kalispell Officer" (as the video title says) or whether Justice Shea's analysis is correct. Here's an argument to the contrary, excerpted from the ACLU's amicus brief:
It may well be plausible to imagine some scenario—such as an officer's discussion with a confidential informant, or police rendering aid to a young accident victim—where the City could arguably have some interest in keeping pedestrians more than 15 feet away. But that was not this case. This was a traffic stop, and Doman was not interfering with it in any way. Instead, he was quietly recording from a safe distance. And although Minaglia claimed that Doman was distracting him, Willey conceded that Minaglia was not needed to assist with the stop; Willey called him because Doman was recording. (Tr. Audio at 3:13:10; 4:10:07.)
Nor, contrary to Minaglia's citation, was Doman a safety concern. "[G]eneral assertions" are not enough, "particularly where [the government] is restricting First Amendment activities in traditional public fora such as streets and sidewalks." As Minaglia confirmed when he grabbed Doman's phone, Doman was deemed to be a "safety concern" because his phone was recording. To be sure, Minaglia might have felt more comfortable if Doman had followed his command to move to a more remote location. But "[i]n our society, police officers are expected to endure significant burdens caused by citizens' exercise of their First Amendment rights," and "[t]he same restraint demanded of police officers in the face of 'provocative and challenging' speech, must be expected when they are merely the subject of videotaping that memorializes, without impairing, their work in public spaces.'"
And here's an excerpt from the majority opinion, written by Justice Beth Baker:
On July 17, 2022, Officer Willey with the Kalispell Police Department observed a driver turn right without using a turn signal. Willey ran a search of the vehicle's license plate and discovered that its registered owner had a suspended driver's license. Willey pulled the driver over for these infractions. After Willey parked behind the vehicle, he observed that its tinted windows prevented him from seeing inside. Willey cautiously approached the vehicle, knocked on the driver's window, stepped back, and asked the driver to stick his hands outside. Once he ensured that the driver did not have any weapons, Willey approached the driver and requested to see his identification. The driver responded that he did not have his identification because he left it at a gas station. Willey then returned to his patrol vehicle to ensure that the driver was the vehicle's registered owner and asked dispatch to check if the driver had any prior convictions for driving with a suspended license.
While Willey was waiting to hear from dispatch, Sean Doman passed by the traffic stop on his bicycle. Doman parked his bike on the sidewalk next to the stopped vehicle and started recording the traffic stop with his phone. Doman moved closer to the vehicle and gestured to its occupants to roll down the window. Willey noticed Doman and called for backup because he had "someone rolling up filming [him] and the driver's a little … sketchy."
Officer Minaglia quickly responded to the scene. Minaglia got out of his patrol car and approached Doman. Doman continued to film while the two had the following exchange:
Minaglia: "Hey brother, I don't mind if you film … just do me a favor and kind of go a little bit a ways, okay?"
Doman: "First Amendment protected activity."
Minaglia: "Right, I agree … just do me a favor and get out of where we're working, and you can totally film from like right over here by this tree, okay?"
Doman: "I'm not interfering."
Minaglia: "Okay, I appreciate it."
Doman: "I need to be able to record audio."
Minaglia: "You can, you can record it from right over here."
Doman: "I'd like to stand right here."
Minaglia: "Okay, well, you can't."
Doman: "I'm on public property, it's a sidewalk, I'm not interfering."
Minaglia: "You are on public property …. Do you understand that my engagement with you is distracting me from this [traffic stop]?"
Doman: "That's your fault, that's not my responsibility."
Minaglia: "Okay, can you please … can you please move forward, sir?"
Doman: "No."
Minaglia pulled Doman's phone out of his hand and set it on the ground. Minaglia reiterated that he didn't mind if Doman filmed, but that he needed to move forward; otherwise, Minaglia would arrest him for obstruction. Doman began swearing at Minaglia and threatened to sue him. Willey heard the situation escalate and got out of his patrol vehicle. Doman again refused to move despite Minaglia's requests, repeatedly asking, "Where?" Doman eventually began to back away from the traffic stop while asking, "How far? How far, tyrant?" At that point, Minaglia told Doman that he was under arrest, and the officers handcuffed him….
No one disputed at trial—and Officer Minaglia did not dispute at the scene—that Doman had a protected right to film the traffic stop. The trial court instructed the jury (Instruction No. 13):
A citizen's right to film government officials, including law enforcement officers, in the discharge of their duties at a traffic stop is a well-established liberty safeguarded by the First Amendment. It is not a violation of the law to film a peace officer conducting official duties while enforcing the law. However, the right to record police activity, is not without limitations. It may be subject to reasonable time, place, and manner restrictions.
Doman's counsel argued from this instruction during closing that he had a right to film the traffic stop and therefore did not have to obey Minaglia's orders.
When reviewing a challenge to the sufficiency of the evidence, this Court asks "whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." … Doman knew that Willey was in the middle of a traffic stop when he arrived on the scene. Doman parked his bike on the sidewalk right next to the stopped vehicle and gestured to the individuals inside to roll down the window.
Officer Willey testified that he called for backup because he had an "uneasy feeling about the stop initially," and this unease grew when Doman gestured to the people inside the vehicle. Doman engaged with Minaglia while Willey was in the middle of conducting the traffic stop, and Doman became increasingly aggressive and argumentative as Minaglia ordered him to back away from the scene. Willey said he divided his attention between monitoring Doman and Minaglia's interaction and conducting the traffic stop. Willey got out of his patrol vehicle once he heard Doman and Minaglia's raised voices, and he assisted Minaglia in arresting Doman…. Willey testified that Doman's conduct and arrest took his attention "basically completely off of the traffic stop." After the officers placed Doman in custody, Willey issued the driver a citation….
Doman maintains that he did not "knowingly" hinder the officers' investigation because he merely intended to exercise his First Amendment rights. Doman's subjective intent, however, is immaterial. Doman asserts that the officers needlessly escalated the situation, and that Doman did not hinder Willey's duties. To support his argument, Doman points to Willey's testimony that he does not necessarily think Doman "hindered [his] ability to issue a citation[,]" which Willey could not do until dispatch responded with the driver's prior convictions. The obstruction statute required proof beyond a reasonable doubt that Doman engaged in conduct under circumstances that made him aware of a high probability that his conduct would impede the officers' duties.
Considering that Doman stopped right next to the vehicle, gestured to its occupants, refused to comply with Minaglia's orders despite multiple warnings, and acted combative towards the officers, he has not met his high burden of showing that failure to review his claims would result in a conviction on the basis of purely constitutionally protected activity and therefore would be manifestly unjust. At trial, the jury viewed the officers' camera footage, listened to their testimony, and considered the parties' theories of the case. The evidence supported a finding beyond a reasonable doubt that Doman was aware of a high probability that his conduct would impede the officers' duties.
Our review is thus confined to determining whether sufficient evidence supports Doman's conviction. The factfinder evaluates witness credibility, assigns weight to the evidence, and determines which version of events prevails. We do not consider whether the evidence could have supported a different result. The jury weighed the evidence presented and credited the City's version of events. We do not disturb the jury's determination on appeal. Viewing the evidence in a light most favorable to the prosecution, we conclude that a rational trier of fact could have found that the City established the essential elements of obstructing a police officer beyond a reasonable doubt….
Thad Tudor argued on behalf of the government.
