Turner v Driver 2017-02-27

[Liz]

5th Circuit US Court of Appeals
February 27, 2017

• Establishes a First Amendment right to record the police does exist, subject only to reasonable time, place and manner restrictions.
• Qualified immunity granted to Officers Grinalds, Dyess and Driver on Turners 1A and 4A claim for unlawful detention.
• Qualified immunity granted to Officer Driver on Turners 4A claim for unlawful arrest.
• Qualified immunity grant reversed for Officers Grinalds and Dyess on Turners 4A claim for unlawful arrest.

 

[MWAM]

Thanks for posting. I think everyone needs to really review and grasp Time,Place, and Manner. It appears that many Auditors believe this decision gives them Carte Blanche to film the police anywhere and at any time...which it does not do.

Additionally, Auditors need to understand that this decision only applies in the Fifth Circuit not nationally. Use this decision when dealing with the police in the Second District and it will hold little if any weight at the moment.

 

[njdiver]

Check out my post:

Auditor Education Bibliography

TIME, PLACE, AND MANNER RESTRICTIONS

https://legal-dictionary.thefreedictionary.com/Time+Place+and+Manner+Restrictions

 

[Liz]

We need to keep in mind, Turner was filming from a public sidewalk which is a traditional public forum. Time, place and manner restrictions apply. These restrictions must be content neutral, narrowly tailored, serve a significant governmental interest, and allow other alternative methods of communication. When filming from a non-public forum, such as a police stations, airport terminals, etc., there is less protection. Restrictions in a non-public forum may be based on content but they must be reasonable and viewpoint neutral. See Adderley v Florida which says they have the right to preserve the property for its intended use.

 

[RogueRivered]

See Adderley v Florida which says they have the right to preserve the property for its intended use.

It sort of says that, but more accurately, it says that expressive conduct can only be banned if it is fundamentally incompatible with the purpose for which the place was dedicated. In Adderley, it was a jailhouse, and it was determined that protesting was fundamentally incompatible. Other similar cases have come to differing conclusions based on compatibility. You can't use Adderley for every government building!

 

[Liz]

It sort of says that, but more accurately, it says that expressive conduct can only be banned if it is fundamentally incompatible with the purpose for which the place was dedicated. In Adderley, it was a jailhouse, and it was determined that protesting was fundamentally incompatible. Other similar cases have come to differing conclusions based on compatibility. You can't use Adderley for every government building!

The actual quote is "The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated. ". As long as the restriction is reasonable and viewpoint neutral, I am unable to think of a situation where Adderley would not apply. Can you give me an example?

 

[RogueRivered]

Sorry, I had the wrong case for the statement I made above. I'm going to have to find the case again. Here is a quote from Adderley, though, that hints at what I'm talking about.

"The Edwards case, like this one, did come up when a number of persons demonstrated on public property against their State's segregation policies. They also sang hymns and danced, as did the demonstrators in this case. But here the analogies to this case end. In Edwards, the demonstrators went to the South Carolina State Capitol grounds to protest. In this case they went to the jail. Traditionally, state capitol grounds are open to the public. Jails, built for security purposes, are not."

 

[Liz]

I understand where you are coming from however (in the case of Edwards) they were demonstrating on state capitol grounds which was deemed to be a traditional public forum. Adderley relates to nonpublic forums.

 

[RogueRivered]

I know, I know. But Adderley isn't the end of the story. I'm still looking for that other case.

 

[RogueRivered]

Here it is!

Grace v. Burger, 665 F. 2d 1193 - Court of Appeals, Dist. of Columbia Circuit 1981
Grace v. Burger, 665 F. 2d 1193 - Court of Appeals, Dist. of Columbia Circuit 1981 - Google Scholar
Paragraphs 1198 - 2002 provide a great background of important cases pertaining to expressive activity on public property.

The main case, though, that I've been referring to is:
Grayned v. City of Rockford, 408 US 104 - Supreme Court 1972
Grayned v. City of Rockford, 408 US 104 - Supreme Court 1972 - Google Scholar
Paragraph 117
"The nature of a place, "the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable."[33] Although a silent vigil may not unduly interfere with a public library, Brown v. Louisiana, 383 U. S. 131 (1966), making a speech in the reading room almost certainly would. That same speech should be perfectly appropriate in a park. The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time. Our cases make clear that in assessing the reasonableness of a regulation, we must weigh heavily the fact that communication is involved;[34] the regulation must be narrowly 117*117 tailored to further the State's legitimate interest.[35] Access to the "streets, sidewalks, parks, and other similar public places . . . for the purpose of exercising [First Amendment rights] cannot constitutionally be denied broadly . . . ."[36] Free expression "must not, in the guise of regulation, be abridged or denied."

 

[Liz]

In both cases, the place of protest was from a public forum. In Grace v Burger, it was the grounds of the Supreme Court. In Grayned v City of Rockford it was from a public sidewalk. Neither case involved a nonpublic forum and neither were in a government building.

Going back to your initial statement, "You can't use Adderley for every government building", there may be times when a government building (or portion of) temporarily becomes a designated public forum and it would then be treated like a traditional public forum. Adderley wouldn't apply while it was open for public expression. There may even be some government buildings that are considered traditional public forums. I just can't think of any. That was my point when I asked if you had any examples.

 

[RogueRivered]

You didn't read Paragraphs 1198 - 2002 of Grace v. Burger. It lists at least two important cases where the activity occurred inside public buildings -- one was a sit-in protest at a public library and another was in a public school.

 

[RogueRivered]

Grayned also goes into discussing what constitutes an actual breach of the peace or disruptive activity, something people use against auditors all the time.

 

[Liz]

You didn't read Paragraphs 1198 - 2002 of Grace v. Burger. It lists at least two important cases where the activity occurred inside public buildings -- one was a sit-in protest at a public library and another was in a public school.

Actually, I did read it. It goes back to the test for nonpublic forums. Restrictions must be reasonable and viewpoint neutral.

 

[RogueRivered]

There is nothing in the case law that states public property fit for expressive activity has to be outside. You seem to be equating "traditional public forum" with only including sidewalks, streets, parks, etc., however other public places, including inside, are not-exempted. What good would the right to see what your government is doing be if they could all hide inside buildings away from public view? Or they could put all government offices in courtrooms to defeat our rights? It should not be that easy. There are many other examples of expressive activity inside public buildings that have been declared constitutional and not just on "reasonable" and "viewpoint neutral" grounds.

 

[observer]

Int'l Society for Knisna Consciousness v Lee is a Supreme Court case where the court had to decide if the concourse of an airport fell within the definition of a traditional public forum. As the concourse is inside the airport, the court did not accept that a traditional public forum MUST be outside. However, the court was not unanimous in its decision and voted to strike down the airport ban on leafletting--while voting to uphold the ban on solicitation.

 

[RogueRivered]

Brown v. Louisiana, 383 US 131 - Supreme Court 1966
Brown v. Louisiana, 383 US 131 - Supreme Court 1966 - Google Scholar
Paragraph 147
Brennan's concurrence:
"The danger posed by the Louisiana courts' definition of "breach of the peace"—that it might sweep within its broad scope activities that are constitutionally protected—is no less present when read in conjunction with "public building" than when read with "public street" and "public sidewalk.""

 

[RogueRivered]

Int'l Society for Knisna Consciousness v Lee is a Supreme Court case where the court had to decide if the concourse of an airport fell within the definition of a traditional public forum. As the concourse is inside the airport, the court did not accept that a traditional public forum MUST be outside. However, the court was not unanimous in its decision and voted to strike down the airport ban on leafletting--while voting to uphold the ban on solicitation.

Exactly. It illustrates my point that the key issue is whether the activity is "fundamentally incompatible" with the use of the public space. Soliciting was ruled to be incompatible, whereas leafletting was not.

 

[njdiver]

And now we have these:

 

[observer]

And now we have these:

Constructive criticism:

Instead of just posting documents take a few moments to explain what the document is and how it applies to the issue. The sec. 15-48 pdf is in regards to the City of Punta Gorda, Florida and is not controlled by the rulings of the Fifth Circuit Court, which wrote the decision in Turner V. Driver.

In a quick read of the pdf, I find a distant connection that I feel needs to be explained to others and allow dialogue of how it is intended and its correlation to the issue. Thanks for listening to my input.