||FIFTH CIRCUIT DENIES IMMUNITY FOR OFFICER IN ARREST OF MAN TAKING PHOTOGRAPHS ON TRANSIT PROPERTY

FIFTH CIRCUIT DENIES IMMUNITY FOR OFFICER IN ARREST OF MAN TAKING PHOTOGRAPHS ON TRANSIT PROPERTY

On September 20, 2019, the Fifth Circuit Court of Appeals decided Adelman v. Branch[i], in which the court examined whether an officer with the Dallas Area Rapid Transit (DART) was entitled to qualified immunity regarding the arrest of Adelman, who was taking photographs of paramedics treating an overdose victim on transit property.  The relevant facts of Branch, taken directly from the case, are as follows:

Branch began working for Dallas Area Rapid Transit (“DART”), the local transportation entity providing bus and rail services, as a police officer in 2006. Appellee Avi Adelman is a freelance journalist who publishes a neighborhood blog and provides photographs to media outlets.

In June 2007, DART issued a directive prohibiting non-DART personnel from using DART facilities or property for unauthorized non-transportation purposes. Then, in June 2014, DART issued a new policy (the “Photography Policy”) allowing people to take photographs on DART property so long as they did not interfere with transportation or public safety activity. The Photography Policy provided:

Persons may take photographic or video images, including but not limited to film, digital or video recordings (Images) of DART Property, including but not limited to stations,        buses, trains, or other vehicles for their personal use. Persons taking photographic or video images must not interfere with transportation or public safety activity while taking images. DART Police Officers may initiate an inquiry or investigation when photography or videotaping activity is suspicious in nature or inconsistent with this policy.

Branch was out on sick leave from May 2014 through January 2016. She claims that she was thus unaware of DART’s Photography Policy during the events leading to this suit.

On the evening of February 9, 2016, Adelman was in downtown Dallas listening to his police scanner when he heard a call for Dallas Fire-Rescue (“DFR”) paramedics to respond to a K2 overdose victim at the Rosa Parks Plaza DART station (the “Plaza”) and decided to go to the scene. When he arrived, he noticed a man lying on the ground and being attended to by DFR paramedics. He began to photograph the scene. Branch noticed Adelman taking photographs shortly thereafter. She then positioned herself between Adelman and the medical scene in an apparent attempt to block Adelman from taking photographs.

According to witnesses, Adelman was several feet away from the medical scene and was not interfering with paramedics or police activity. Nevertheless, Branch approached Adelman and demanded that he stop taking photographs. Branch states that she approached Adelman because he appeared suspicious to her. As captured on Branch’s audio recording device, the first statement Branch made to Adelman was, “Sir leave.” When Adelman refused to leave, Branch demanded his identification. She again demanded that Adelman “leave our property” and told Adelman that the Plaza was not public property.

Branch then told Adelman multiple times that he could not take photographs. Branch first told Adelman he was prohibited from photographing the medical scene; later she instructed Adelman that he could “take pictures from the street but [could not] take pictures here” on DART property. In all, Branch asked Adelman to leave the Plaza nine times and asked for his identification four times. Adelman repeatedly refused.

While Branch was speaking with Adelman, Branch’s colleague, DART Police Officer Cannon, remained with DFR paramedics. As Cannon and the DFR paramedics observed the confrontation, a DART recording device captured the following exchange:

DFR 1 – He was just taking pictures right?
Officer Cannon – Yea[h] that’s why I don’t know why she’s giving him a hard time[.]
DFR-1 – Why is she going crazy?
Officer Cannon – I don’t know[,] that’s going to be on her[.] [H]e can take all the pictures he wants[,] that’s why I’m not getting involved in that. . . .
DFR-1 – He knows he wasn’t doing nothing wrong so. . . .

Officer Cannon – I don’t know why she . . . . There was no need for that[.]
DFR-2 – Yea[h] I don’t know where that idea came from but this is . . . because there is freedom of the press[.]

Nevertheless, less than five minutes after first approaching him and demanding that he stop taking photographs, Branch informed Adelman that she was detaining him. Branch arrested Adelman for criminal trespass under Texas Penal Code § 30.05 based on her assertion that the Plaza was “not public property” and her belief that Adelman was not allowed to photograph the scene. Branch also issued Adelman a criminal trespass warning, which banned him from the Plaza and certain other DART transit locations.

DART dropped the criminal trespass charge against Adelman shortly after his arrest. In a letter explaining the decision, DART stated that Branch’s actions were “not in line with department directives” and that DART would undertake a formal review. Nearly six months later, DART released its investigation results, which indicated that Branch “did not establish Probable Cause to effect the arrest” and that she improperly arrested Adelman while he was “simply taking photographs of a person in a public place.” The report also contained the following conclusions:

  • “Adelman was not breaking any laws and would not lead a reasonable person to believe that he was committing a crime or had committed a crime or [was] about to engage in committing a crime. . . . [T]herefore the arrest of Adelman for criminal trespass was not based on sufficient probable cause.”
  •  “Adelman is viewed simply taking photographs of a person in a public place on DART property who appeared to have passed out. Adelman is never viewed less than approximately 10 feet from the actual medical scene. Officers Cannon, Craig or DFR personnel did not witness Adelman ever interfere with medical treatment or medical personnel.”
  • “The evidence indicates that Officer Branch did violate the DART Administrative Employment Manual and did not refrain from activity which was illegal or could reflect negatively on DART when she made various inconsistent or mistaken statements on her DART Police [I]ncident Report . . . and made the arrest of Avi Adelman for criminal trespass.”

The report also indicated that Branch made numerous false statements in her incident report, including a statement that Adelman was within a few feet of DFR paramedics and that DFR instructed her to keep Adelman back. The report specified that Branch’s incident report contained twenty-three false or inaccurate statements. Branch was suspended for three days as a result of the investigation.[ii]

Adelman filed against DART and Officer Branch and alleged that the arrest violated his rights under the First and Fourth Amendments.  The district court granted DART’s motion for summary judgment and granted the officers motion for qualified immunity as to the First Amendment violation but denied the officer’s motion for qualified immunity for the Fourth Amendment claim related to unlawful arrest.  Officer Branch appealed the district court’s denial of qualified immunity on the Fourth Amendment claim to the Fifth Circuit Court of Appeals.

QUALIFIED IMMUNITY STANDARD

The court of appeals first discussed the legal standard for qualified immunity.  The court noted that when an officer is sued, the plaintiff bears the burden of negating the officer’s qualified immunity defense.  In this case, the court stated

Adelman (the plaintiff) bears the burden of negating [Officer] Branch’s qualified immunity defense by showing “(1) that [Branch] violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.”[iii]

Regarding qualified immunity specifically related to a false arrest suit, the court stated

Officers are . . . entitled to qualified immunity unless there was no actual probable cause for the arrest and the officers were objectively unreasonable in believing there was probable cause for the arrest.” Davidson v. City of Stafford, 848 F.3d 384, 391 (5th Cir. 2017). Thus, we must determine whether there were “facts and circumstances within [Branch’s] knowledge . . . sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that [Adelman] ha[d] committed, [was] committing, or [was] about to commit an offense.” Id. (quoting Hogan v. Cunningham, 722 F.3d 725, 731 (5th Cir. 2013)).[iv]

Stated another way, this means that even if an officer arrests someone without probable cause, thereby violating the Fourth Amendment, the officer may still be entitled to qualified immunity from the suit if the officer reasonably, although erroneously, believed there was probable cause.  The court also noted that the right to be free from an arrest without probable cause is clearly established; as such, the court stated “the focus is on what a ‘reasonable officer’ would conclude regarding probable cause,” rather that on what Officer Branch subjectively believed regarding probable cause.

TEXAS CRIMINAL TRESPASS STATUTE

After the explanation of the legal standard, the court set out to examine the Texas statute for which Adelman was arrested, particularly Texas Penal Code Sec. 30.05.  This code section provides as follows:

A person commits an offense if the person enters or remains on or in property of another . . . without effective consent and the person: (1) had notice that the entry was forbidden; or (2) received notice to depart but failed to do so.” TEX. PENAL CODE § 30.05.  “Notice” means “oral or written communication by the owner or someone with apparent authority to act for the owner.” Id. § 30.05(b)(2).[v]

As such, the court of appeals summarized the elements of the crime of criminal trespass and stated

Therefore, criminal trespass occurs where “(1) a person (2) without effective consent (3) enters or remains on the property or in a building of another (4) knowingly or intentionally or recklessly (5) when he had notice that entry was forbidden or received notice to depart but failed to do so.” Pena v. Bexar County, 726 F. Supp. 2d 675, 692 (W.D. Tex. 2010) (quoting Tex. Dep’t of Pub. Safety v. Axt, 292 S.W.3d 736, 740 (Tex. App.—Forth Worth 2009, no pet.)).[vi]

In Adelman’s case, he was arrested for failing to leave the DART property when Officer Branch ordered him to do so.  The court of appeals then explained that while Officer Branch met most of the elements of the crime above, the officer lacked the legal authority to order Adelman to depart DART property because Adelman was in compliance with the DART Photography Policy.  Specifically, the policy allows a person to photograph “as long as they do not interfere with transportation or public safety activity in doing so.”[vii]  In this case, the DART internal investigation revealed that the officer’s claim that Adelman was within a “few feet” of the paramedics was false as was the officer’s claim that the paramedics instructed the officer to “keep Adelman back.”  Further, the investigation revealed that one of the other DART officers on the scene knew that Officer Branch was “acting outside of her authority” when she ordered Adelman to leave DART property.  As such, the court of appeals decided that whether Officer Branch acted within the DART Photography Policy was a question of fact for a jury to decide.

Additionally, the court of appeals also noted that, at the qualified immunity stage of litigation, they are required view the facts in a light most favorable to the plaintiff.  When viewing the facts in a light most favorable to Adelman, it appears that Adelman complied with the Photography Policy and the officer lacked the authority to order him to leave.  Again, this makes the fact determination appropriate for a jury, which means denying qualified immunity for the officer.

The court then held

[It is] clearly establishe[d] that the absence of exclusion authority negates a criminal trespass claim. Id. Thus, no reasonable officer would conclude that she has probable cause to arrest someone for criminal trespass after that person refuses to follow her instructions to leave when she lacks the authority to exclude the person from the property. Accordingly, Branch’s assumption of probable cause was objectively unreasonable. Taking the facts in the light most favorable to Adelman, 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.[viii]

Therefore, the court of appeals affirmed the denial of qualified immunity in this case.

__________________________________________

Citations

[i] No. 18-111103 (5th Cir. Decided September 20, 2019)

[ii] Id. at 2-5

[iii] Id. at 7 (internal citations omitted)(emphasis added)

[iv] Id. at 7-8 (emphasis added)

[v] Id. at 8 (quoting Texas Penal Code Sec. 30.05)

[vi] Id. at 8 (emphasis added)

[vii] Id. at 9

[viii] Id. at 10

By |2020-06-24T15:08:32+00:00June 23rd, 2020|Legal updates|

About the Author:

Brian Batterton is an attorney in the State of Georgia and currently a Lieutenant with the Cobb County Police Department. He has been in law enforcement since 1994 and obtained his Juris Doctorate in 1999 from John Marshall Law School in Atlanta. He has served as an officer in Uniform Patrol, a detective in Criminal Investigations, a Corporal in the Training Unit and as a Sergeant in Uniform Patrol. Brian is currently assigned as the Legal Officer to the Chief of Police. In addition to his work at the police department, he also lectures for the Legal and Liability Risk Management Institute (LLRMI) on both criminal law and procedure topics, as well as, police civil liability.