INTEROFFICE MEMORANDUM

To:

From:

Date: 4/19/2020

Client: Hunter Nash

File:     00244-02

Docket No: 00-HN-2020

Re: Analysis of civil rights action

 

INTRODUCTION/ ASSIGNMENT:

You asked me to undertake an analysis of civil rights action for, inter alia, unlawful arrest and excessive use of force by police. The analysis is to prove that the rights of the clients were violated and establish a course of action that the client can undertake. Since this is a closed memo, no additional legal research has been conducted, and I have applied only the statute and case law provided.

FACTS:

Hunter Nash, an independent journalist was on his course of duty live-streaming a large political protest in O’Fallon, Missouri. In the process, he was caught up in a “kettling” incident when the lines of heavily armed police in full in riot gear surrounded protesters and corralled them into an intersection.

Nash and the other 150 people were held in the location while the police were arresting and transporting individuals to headquarter. While the police officer was carrying out their duty, one police officer violently wrenched Nash’s arm behind his back in an attempt to stop him from recording the event from his cellphone.

When Nash protested and asserted his status as a journalist, the police proceeded to zip tie him, sprayed pepper spray on him and forced him to sit down on the pavement with other detainees for several hours.

Legal Authority

The First Amendment provides as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition the Government for a redress of grievances.

42 U.S.C. § 1983:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

Alston v. City of Saint Louis, Missouri, No. 4:18-CV-01569-AGF (2019)

Facts: Alston a video journalist used to document protests in St. Louis in his role as the sole proprietor of City Productions and Publishing. On September 17, 2017, Alston attended a protest in the downtown area of the City to document police interactions with protestors. He was wearing a press pass and carried a camera around his neck. Without first providing a warning, a command, or an opportunity to leave the area, SLMPD officers kettled Alston and others at the intersection of Washington Avenue and Tucker Boulevard. Alston filmed these activities. Alston then approached an officer and asked to be let out of the kettle, and without warning or verbal direction, the officer pushed Alston back with his baton and his shield and, along with a second officer, sprayed pepper spray in Alston’s face. Alston fell to the ground, and several officers then began to kick Alston and continue to spray him with pepper spray. The officers kicked and pepper-sprayed Alston for over two minutes until other individuals began to fall on top of Alston. Officers then arrested Alston using three zip ties tied very tightly. An officer told Alston that “this is what [he] got for wanting to videotape the police.” ECF No. 28 151. Another officer ripped Alston’s camera from around his neck, slammed the camera on the ground, and powered it off. Alston was held in a crowded cell for nearly 24 hours and experienced injuries from the pepper spray and zip ties. Upon release, he was not told why he had been arrested or what he was being charged with. He was given his camera back upon release, but it had been badly damaged. Alston filed a suit for compensation.

Holding: the court did not award any damages to Alston as he was unable to identify the officers that assaulted him as a result of the pepper spray and also the police officers had masks and there was no form of identification of the police.

Higginbotham v. City of New York, 105 F. Supp. 3d 369 (S.D.N.Y. 2015)

Facts: On November 15, 2011. Higginbotham was working as a freelance video journalist for TV New Zealand. He was covering the occupy wall street protest in lower Manhattan, to be able to get a clear glimpse of what was happening he climbed on top of a telephone booth, He was able to capture the arrest that were being affected by the police. One police captain saw him on top of the booth and ordered him to come down, he was unable to climb down the booth as many individuals were surrounding the phone booth. Three police offer got irritated and pulled him by his legs causing the camera to fall on the ground. He was handcuffed using plastic handcuffs and was then transported to a police processing center. He developed bruises on his hand which caused him pain since he had stayed with the handcuffs for three hours. Higginbotham was issued with a summons to appear in court as he was charged with disorderly conduct. Charged were later dropped and a subsequent suit was filed by Higginbotham.

The court made the following determinations:

1. allegations were sufficient to plead police did not have probable cause to arrest;
2. allegations were insufficient to state a claim for malicious prosecution;
3. allegations were insufficient to state a claim for excessive force;
4. journalist’s right to record police activity in public was established;
5. allegations were sufficient to state the First Amendment retaliation claim, and
6.  allegations were insufficient to state a municipal liability claim.

LEGAL ISSUES

1. Did the police violate the First Amendment?
2. Was the force used by the police acceptable under 42 U.S.C. § 1983.?

BRIEF ANSWERS

1. Yes. Mr. Nash was handled by the police in a manner that undermined the freedom of the press. The press is allowed to collect information without being subjected to force or threat by the police officer. By the act of the police zipping Mr. Nash and spraying better on his eyes was a total violation of his rights as a journalist as provided under the First Amendment.
2. No. the police used to much force against a person who was not even rioting. The excessive force applied by the police officers led to the damaging of the camera of Mr. Nash.

LEGAL ANALYSIS:

1. Did the police violate the First Amendment?

From the case of Alston v. City of Saint Louis, Missouri, the court has established that the acts of the police violated the First Amendment. The challenge that existed was that the police were not identified by the plaintiff so that they could be found liable. In this case, the actions that were conducted by the police amounted to the use of excessive force thereby undermining the freedom of the press as envisioned under the First Amendment.

The act of the police of denying or rather blocking Nash to undertake his duties as a journalist, fully violates the provisions of the First Amendment. Nash had successfully identified himself as a journalist to the police thereby, it was not warranted for the excessive force to be used against him. The court in the case of Alton observed that, Alton had properly identified himself as a journalist, thereby, he ought to have been protected. His only undoing was that he was unable to identify the police personnel that violated his rights.

2. Was the force used by the police acceptable under 42 U.S.C. § 1983?

The force that was used by the police officer was not envisioned by 42 U.S.C. § 1983. This is because the act of the police breaking down the camera that was being used by Mr. Nash to record the protest amounted to an infringement of his rights as a journalist. The police by their action or arresting, handcuffing and pepper-spraying Mr. Nash, interfered with his duty as a journalist thereby the police that occasioned the breach of law should be liable to Mr. Nash.

In the case Higginbotham v. City of New York, the court established that the right of journalist the journalist to record police activities. In this regard, by the virtue of Nash being a journalist, his right of recording police activities was already established. The action of the police to violate that right by breaking the camera that was being used by Nash automatically led to the excessive use of force by the police thereby violating the statutory provision.

The challenge that we might face in this case is to dispel the retaliation claim. This is because, the first amendment provides that in instances where the security of the police officer is in question they are supposed to retaliate by force. This is an exception to the rule of excessive force. The act of Nash to protest, can be used as a defense b the police officer to explain why they used force on him.

CONCLUSION:

Based on the aforementioned provisions, the law seems to favor our client’s case. Therefore, a case can be instituted in court by our client against the police that occasioned the violation of the rights of our client as a journalist. The client’s case is watertight, although, the client must be able to remember the police officer that occasioned the violation of the law. This is because, if the client fails to identify the specific police then the matter will be struck out on unsatisfactory evidence. Therefore, to avoid such technicality the client should make sure that he can remember the police officer(s) involved in violating his rights.

RECOMMENDATIONS:

Identification of perpetrators.

The client should make sure that he can be able to identify the office either physically, facially or using their identification number. This will help in providing the parties that the court will find culpable for breaching the rights of the client.

Legal Research:

• Alston v. City of Saint Louis, Missouri, No. 4:18-CV-01569-AGF (2019) should be utilized as it provides the criteria used by the court in finding one culpable of violating the first amendment and use of excessive force.
• The cases provide basic elements that the courts will use in finding one culpable and what the court will consider before striking out the matter.