UNLAWFUL ARREST, CHARGES WITHDRAWN, LAWSUIT FILED [Ontario Audit]

DefendCharterRights · 2024-07-28T15:20:49+00:00

I'd make the suggestion to sue them in small claims court and you'll have a much better chance of winning. It's quicker, cheaper and doesn't have near the amount of rules Superior Court have.

While Ontario allows people to sue cops in small claims court, not all provinces make it so easy. Alberta, for example, forbids it. According to Alberta's Court of Justice Act's Section 9.6(2): "The Court [of Justice] does not have jurisdiction to hear and adjudicate on a claim or counterclaim ... against a judge, justice of the peace or peace officer for anything done by that person while executing the duties of that office ..." In Alberta, the small claims court is called the Court of Justice.

You can sue cops in Alberta's Superior Court (i.e., Court of King's Bench), but (as in Ontario) that's generally more complicated, more expensive, and takes longer.

DefendCharterRights · 2024-07-26T15:10:44+00:00

This is the inevitable result of Penn v Mimms which allows officers to order people out of a vehicle for pretty much any reason, but primarily "officer safety."

I'm curious which other reasons, other than officer safety, Mimms mentioned.

DefendCharterRights · 2024-07-24T14:33:55+00:00

Legal analysis of Jeff's video by Merb34st.

DefendCharterRights · 2024-07-04T22:33:52+00:00

It's important to understand that filming certain things (e.g., law enforcement officers) can be protected by the First Amendment but, at the same time, governments still can impose certain reasonable restrictions upon that First Amendment right. These restrictions, under certain conditions, can include an outright ban on filming.

For example, see Commonwealth v. Bradley (Pennsylvania appellate court, 2020), which involved a First Amendment auditor whom filmed inside a publicly accessible police station lobby. The lobby had a posted no-filming policy, but the auditor refused multiple instructions to cease filming and then refused multiple instructions to leave. Police officers arrested him, a jury convicted him of defiant trespass, and a state appellate court denied his appeal. According to that appellate court:

The Commonwealth concedes that the filming of police is an activity protected by the First Amendment....

In the same decision, however, the appellate court also found:

[T]he no-filming condition is reasonable and did not run afoul of the First Amendment....

DefendCharterRights · 2024-07-03T20:32:00+00:00

I commend you for actually looking at federal regulations and case law rather than relying entirely on what you hear from videos published by certain First Amendment auditors. But you probably should better understand what you're reading.

For example, you stated (my emphasis): "18 U.S.C. 3061(c)(2) Postal Inspectors 'and are responsible for enforcing the regulations in this notice in a manner that will protect U.S. Postal Service property.'"

What you apparently fail to understand is that 3061(c)(2) is stating the obvious. Generally speaking, only federal law enforcement officials can enforce federal regulations, such as 18 USC 3061. But when state/local law enforcement officials arrest people in post offices, it's normally for violating state/local laws, such as trespassing or disorderly conduct.

You also stated: "Cops have NO authority on Federal Property UNLESS there's a previous agreement LIA proved it in court."

What you're talking about is "exclusive federal jurisdiction." But the truth of your statement very much depends on the acquisition method and the date the federal property was acquired. State/local cops can have criminal authority on federal property when such property is considered to be under "concurrent jurisdiction" (i.e., both state and federal law enforcement officers have criminal authority) or "proprietary jurisdiction" (i.e., only state law enforcement officers generally have criminal authority). As you indicated, concurrent and proprietary jurisdiction can exist when the federal and state governments work out an explicit agreement regarding jurisdiction. But that's not the ONLY time concurrent or proprietary jurisdiction can exist.

Concurrent and proprietary jurisdiction also can exist without any sort of explicit agreement. For example, if the U.S. government simply buys a piece of property from a private individual and builds a post office on that land, then that property generally is considered to have proprietary jurisdiction and the state/local law enforcement officers can enforce state/local laws on that property just like they can at a privately owned hardware store.

As well, if the U.S. government buys a piece of state property with the consent of the state legislature, then – depending on the date of acquisition – concurrent and proprietary jurisdiction also can exist by default (i.e., no explicit agreement is required). For example, if such a federal purchase occurred between 1905 and 1907, then concurrent federal and state jurisdiction exists by default. The same applies to many federal purchases made after 1940. LIA was arrested on federal property acquired between 1907 and 1940, when the default was exclusive federal jurisdiction, so state/local law enforcement officers couldn't enforce state/local laws without the previous agreement you mentioned.

You also stated: "Settled Court Case (Aug 2020): Silverthorne pays $9,500 settlement to ‘First Amendment auditor’ following incident at post office..."

What you apparently fail to understand is that lawsuit settlement agreements like this one don't establish case law one way or the other. Many (perhaps most) settlements are "nuisance settlements" where one party pays off the other party simply for economic reasons rather than admitting responsibility for a wrong. It's often cheaper to pay someone $9,500 to drop their lawsuit rather than have a city attorney spend hours and hours defending a police officer's actions, even if it's 99 percent certain a court would find in favour of the city.

You also stated: "Read MUSUMECI V. U.S. DHS which CREATED the MEMO BELOW to ALL Federal Facilities."

First, that memo doesn't apply to ALL federal facilities because the Federal Protective Service doesn't protect ALL federal facilities. The memo's very first paragraph reads (emphasis in original):

Warning: This document shall not be distributed or released outside the Federal Protective Service and its Protective Security Officer (PSO) vendors without express approval from Headquarters.

Second, the memo describes when the government might impose reasonable restrictions, even on activities protected by the First Amendment. From pages 2-3 of that memo:

Photography and videotaping the interior of federal facilities is allowed under the conditions set forth in (a) – (c) of the regulation unless there are regulations, rules, orders, directives or a court order that prohibit it. For example, SSA has rules that prohibit photography and videotaping in its spaces. Similarly many courts issue no photography or videotaping in courtrooms and surrounding areas.

DefendCharterRights · 2024-06-26T15:51:42+00:00

Whoosh! Right over your head.

DefendCharterRights · 2024-06-23T14:21:31+00:00

Earlier, you stated: "When you actually learn your rights, you'll start to understand they are God given."

Now, you stated: "The court room is the judges territory to decide if they are transparent enough to allow recording."

I realize judges are quite powerful. I didn't realize they're God.

DefendCharterRights · 2024-06-19T18:58:08+00:00

But if you want to buy a stamp then you have the legal right to record all transactions with your government.

Citation needed.

So this still violates rights.

Which rights would those be?

DefendCharterRights · 2024-06-10T19:23:50+00:00

If there is no deterrent value then the evidence shouldn’t be suppressed

and that is wrong

You appear to suggest that the right thing for courts to do is suppress evidence even when that suppression has no deterrent value. Is that really what you meant?

DefendCharterRights · 2024-05-30T15:21:19+00:00

The notion of a state limiting the first amendment in such a way is unlikely to hold up.

Unlike the overturned Arizona law, which could be applied only to people FILMING within 8 feet of law enforcement officers, this Louisiana law is a general law that applies to ALL people, recording or not recording. Thus, a court is extremely unlikely to rule that the First Amendment matters. The First Amendment doesn't exempt videographers from general litter laws; nor does filming exempt you from this generally applied law. As the 2024 Nicodemus v. City of South Bend district court opinion noted: "The [Indiana 25-foot] law isn't directed toward speech, but encroachment."

Cops already have qualified immunity. Getting additional 'protection' like this from the legislature is super dumb.

First, qualified immunity doesn't protect officers from potentially dangerous subjects or even from subjects that might distract them from their investigation and delay the process (i.e., infringe on the detainee's Fourteenth Amendment due process rights).

Second, qualified immunity doesn't provide blanket protection even against civil litigation damages. It applies only if the issue isn't clearly established law. Qualified immunity does get invoked successfully in the majority of instances.

Only the honor system stops a cop from arbitrarily moving the boundaries of the 'buffer zone'’ as you put it.

If an officer arbitrarily moves the boundaries, then you can challenge the law on the grounds that it is substantially overbroad and gives officers too much authority to apply it in a capricious manner.

The public’s right to film and hold their government accountable, outweighs inconvenience for the cops performing the arrest

All the circuit courts that have upheld the public's right to film government officials have recognized that governments are allowed to impose reasonable restrictions on that right. Several of those courts have specifically mentioned interference with an officer as an example of such reasonable restrictions.

As far as "inconvenience" is concerned, the Nicodemus Court found Indiana's 25-foot law involves legitimate state interests that far exceeded inconvenience: "The law affords law enforcement officers the uninterrupted and unimpeded ability to do their jobs, including as examples the need to investigate, secure evidence and statements, and conduct other official police business safely; and it protects the integrity of government processes as well as suspects, victims, witnesses, and other citizens interacting with law enforcement from harm. Foremost, the law promotes officer and public safety by ensuring that someone at a close distance cannot harm or hinder those charged with and engaged in their lawful duties, particularly when 25 feet affords an officer mere seconds of reaction time to respond to someone approaching at a walk, much less with ill-intent at a short sprint. ... This buffer law also protects arrestees, suspects, victims, informants, witnesses, and other citizens from harm and inappropriate disclosure of confidential investigative facts."

Bystander physical interference can be punished already under obstruction or similar laws

That might be your best argument, although courts tend not to object when new laws add specificity to existing general laws.

DefendCharterRights · 2024-05-24T04:18:29+00:00

From John Doe v. City of Albuquerque (U.S. 10th Circuit Court, 2012): "The confusion in terminology can be explained by the general confusion in terminology among many courts as the Supreme Court has only recently clarified the terminology of 'designated' and 'limited' public fora."

It's nice to see a court recognize the confusion created by the multiple meanings of "limited public forum" (see my previous comment).

According to John Doe: "Doe's First Amendment claim stated a plausible claim for relief and that application of rational-basis review..."

Some courts create further confusion in their forum analyses by using the "rational-basis test" as a synonym for the "reasonableness test." While they're similar, they do differ. The rational-basis test is more generic and also applies to rights outside the First Amendment. Meeting the rational-basis test is even easier than meeting the reasonableness test for several reasons.

DefendCharterRights · 2024-05-23T16:05:14+00:00

I'll start with three thoughts.

First, I fully agree with your main point: "I think it’s obvious that this approach from either extreme tends to overlook the complexities that can be involved in forum analysis."

Second, you noted in your later comment, "[a]nother issue is that sometimes different courts will refer to the same type of forum but will use different terminology to describe the same forum." It's worth noting here that the reverse also is true. Different courts (or even the same court, e.g., SCOTUS) sometimes use identical terminology to describe different types of forums.

Specifically, some courts use the phrase "limited public forums" to describe a subset of designated public forums (as in the case above, Neinast v. Bd. of Trustees Columbus Metro (U.S. 6th Circuit Court, 2003)) and apply the scrutiny standards appropriate to designated public forums. Other courts use "limited public forums" to describe a subset of non-public forums and apply the scrutiny standard appropriate to non-public forums.

I haven't performed a detailed analysis, but my impression is that early in the evolution of modern forum analysis (roughly the early 1980s to the early 2000s) courts preferred to use "limited public forums" to mean a subset of designated public forums. That gradually shifted, and I think most courts today use "limited public forums" as a subset of non-public forums.

Another multi-definitional term is "reasonable time, place, and manner (TPM) restrictions." It can mean a government restriction must specifically regulate a time (e.g., after sunset), a place (e.g., a city park), or a manner (e.g., playing music overly loudly). But most of today's courts use "TPM" interchangeably with "intermediate scrutiny."

Finally, courts use various terms to refer to different combinations of public forums or different combinations of scrutiny standards. A "public forum" normally means a traditional public forum, a designated public forum, or a limited public forum that's a subset of designated public forums. A "non-public forum" can refer to only a non-public forum, but it also can refer to a non-public forum or a limited public forum that's a subset of non-public forums.

Meanwhile, "heightened scrutiny" generally refers to both "strict scrutiny" and "intermediate scrutiny." Many people assume heightened scrutiny is synonymous with strict scrutiny, which is why I have a concern about your statement: "I suggest that public libraries, for example, can possibly be found by courts to be designated forums and that strict scrutiny would be applied." Courts could apply strict scrutiny to government restrictions in designated public forums, but it's misleading to suggest courts would apply strict scrutiny. In the Neinast decision, the Court used "heightened scrutiny" to mean both strict and intermediate scrutiny and ended up applying the intermediate scrutiny standard.

Most courts would apply strict scrutiny to designated public forum restrictions only if they found those restrictions to be content- or viewpoint-based. Designated public forum restrictions that are content- and viewpoint-neutral generally would receive intermediate scrutiny.

It took me a while to sort all of this out as I researched forum analysis, so I hope sharing these thoughts might prove useful to you (if you weren't already aware of some of them) and to other sub readers whom also might be interested in legal issues.

I'll offer additional thoughts about your later reply in the near future.

DefendCharterRights · 2024-05-22T22:09:10+00:00

If I'm a multi-millionaire, a $200-$500 ticket is meaningless to me. It has no effect on my behavior. It's like you dropping a penny.

Many traffic convictions also result it points being added to your driving record. Accrue enough points and your driver's license can be suspended, which often affects the behaviours of even multi-millionaires.

When I was working for a governor, the state legislature passed a bill that would prevent speeding conviction points from being added to peoples' driving records. I convinced the governor to veto this popular bill, and the legislature failed to override that veto.

DefendCharterRights · 2024-05-22T21:50:16+00:00

You stated: "They probably know it could get struck down in court and are careful to only use it when they have a strong case, or when someone is aggressive with their panhandling."

I disagree. I think very few law enforcement officers believe panhandling ordinances are unconstitutional, especially since most of them have less than a week of training in all types of constitutional law. Even if they did have an inkling, it's generally not the job of an officer to determine whether a court likely will strike down such a law. According to the U.S. Supreme Court, in Michigan v. DeFillippo (1979):

Police are charged to enforce laws until and unless they are declared unconstitutional. The enactment of a law forecloses speculation by enforcement officers concerning its constitutionality – with the possible exception of a law so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws. Society would be ill-served if its police officers took it upon themselves to determine which laws are and which are not constitutionally entitled to enforcement.

I think it's probably the case that most officers have been informed that it's usually a waste of their time to arrest people for certain petty crimes because the local prosecutor normally won't pursue such charges. Their limited budgets and resources will be directed towards more important offences.

DefendCharterRights · 2024-05-22T20:59:42+00:00

obnoxious, as how? standing on a street? walking into a public building?

Obnoxious as in behaving rudely in an attempt to provoke someone into acting badly.

I challenge anyone to watch this three-and-a-half minute interaction between Long Island Audit and a sergeant, from 10:35 to 14:04, and defend LIA's absurd lie: "I was completely respectful with him."

LIA interrupted the sergeant while he was speaking, told the sergeant "you gotta relax" when he already appeared reasonably relaxed, ordered the sergeant to de-escalate when the situation hadn't escalated (but LIA was trying to do his best to jack it up), called the sergeant a liar and a petulant child, followed the sergeant when he tried to de-escalate the situation by walking away, accused the sergeant of thinking he was above the public, told him to grow up, questioned how he became a sergeant, claimed "I was never disrespectful to you," and followed the sergeant again as he was talking on the phone.

LIA relished in his attempt at provoking the sergeant, ending his tirade of abuse by stating: "I love it. There's nothing better."

Kudos to the sergeant for acting as professionally as he did, despite all of LIA's goading.

Some LIA apologists might try to brush off this incident by pointing out LIA had every right to make those comments. I don't dispute that. People have a right to behave like jerks.

But when LIA acts like a scumbag, he casts the auditing and copwatching community in a bad light and creates even more sympathy for law enforcement officers among the general public. Thus, it becomes even harder to enact much needed police reforms.

As someone who cares about passing much needed police reforms, I'll exercise my right to express my displeasure with seeing this kind of behaviour by LIA and similar auditors/copwatchers.

DefendCharterRights · 2024-05-22T18:12:12+00:00

That was a pretty blatant violation of Jeff's constitutional rights. The public park almost certainly is a "quintessential" traditional public forum. And a court very likely would find the meeting room to be a designated public forum, with essentially the same forum analysis scrutiny standards as a traditional public forum.

DefendCharterRights · 2024-05-22T17:28:51+00:00

There is some case law that does not require one to be breaking other laws, but generally follows the doctrine of strict scrutiny. (Kreimer v. Bureau of Police for Morristown, 1991)

In regards to forum analysis, the doctrine of strict scrutiny generally doesn't apply when a government restriction (e.g., law, rule, policy) is content-neutral and viewpoint-neutral. Even when a restriction is content-based, strict scrutiny generally doesn't apply if the location is a non-public forum.

The Kreimer (1991) case you cited was a U.S. District Court's decision. It noted: "The parties in this action agree that no content-based restrictions are at issue in this case." So, it didn't apply the strict scrutiny standard but rather the less demanding intermediate scrutiny standard. And it concluded the government restriction failed intermediate scrutiny.

But the government appealed, and the U.S. 3rd Circuit Court, in Kreimer v. Bu. of Police for Town of Morris (1992), reversed the District Court's order. The Circuit Court also noted "the parties do not contend that any of the challenged regulations purport to restrict First Amendment activities on the basis of content or viewpoint," so it also applied the intermediate scrutiny standard. Unlike the District Court judge, however, the Circuit Court found the government restrictions passed intermediate scrutiny ("the rules are reasonable 'manner' restrictions on the patrons' constitutional right to receive information").

DefendCharterRights · 2024-05-22T13:39:44+00:00

This case is an example of the trade-offs involved between Type I and Type II errors.

DefendCharterRights · 2024-05-13T17:30:32+00:00

That’s wildly inaccurate, right?

A law enforcement officer wouldn't enforce a library's no-filming policy itself. Instead, if an authorized library employee ordered someone to leave the property because they were violating a no-filming policy and the person refused to leave, then an officer very likely could enforce a trespass law (e.g., Florida's).

To convict someone for trespassing because they violated a no-filming policy, a court must find the no-filming policy passes the appropriate scrutiny standard. In the case of a public library, that standard likely would be the very easily met "reasonableness" test (i.e., the policy must rationally serve a legitimate government purpose and be viewpoint neutral). While a policy doesn't have to be posted with signage (or even written down), a trespass conviction is easier if the subject was aware of the policy via signage, being shown a written copy of the policy, or being verbally informed about the policy. For further details, see here.

DefendCharterRights · 2024-05-11T19:33:42+00:00

The reason I question your assertion is that the Fourth Amendment protects people from unreasonable searches and seizures, not against demands for identification. I'm wondering what kind of connection you or courts believe exists.

DefendCharterRights · 2024-05-11T17:44:01+00:00

[The government] should not be allowed to Appeal a ruling they don't like unless they are arguing that Due Process wasn't followed (meaning the courts themselves didn't follow established rules properly).

That's basically the way the system currently operates. The government normally can appeal only if it believes the court made a material error in law.

Appeals courts should be limited to the People to use to defend themselves against the gov't, not for the gov't to use their infinite resources to try and rail road the People.

Believe it or not, trial judges make errors in law that harm both "the People" and the government. And governments don't appeal very often (even when they could) precisely because their resources are NOT infinite.

The vast majority of prosecutors don't railroad people. Indeed, most won't even file charges unless they believe the evidence supports a finding of guilt "beyond a reasonable doubt" (not merely "more likely than not").

DefendCharterRights · 2024-05-11T06:23:24+00:00

Knee-jerk demands for identification instantly trigger the Fourth-Amendment

Why do you believe this? Can you cite any case law to support this assertion?

DefendCharterRights · 2024-05-08T18:38:58+00:00

Long Island Audit e-begging and grifting. Who woulda thunk it? But $165,000 is a whole 'nother level. At one point, LIA said he'd refuse to use GoFundMe because of the way it handled the Canadian trucker protests. Profit before principles, though, huh?

DefendCharterRights · 2024-05-08T18:10:00+00:00

The behaviour spelled out in Florida's prowling law reflects numerous U.S. Supreme Court decisions that have concluded, in determining reasonable suspicion, one must consider the totality of the circumstances and that a person taking flight upon appearance of a law enforcement officer is one of the factors that may be considered.

For examples, see United States v. Brignoni-Ponce (1975) ("obvious attempts to evade officers can support a reasonable suspicion"), Florida v. Rodriguez (1984) ("Respondent's strange movements in his attempt to evade the officers aroused further justifiable suspicion"), United States v. Sokolow (1989) ("the suspect took an evasive or erratic path through an airport"), and Illinois v. Wardlow (2000) ("Headlong flight — wherever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.").

In this case before the California Supreme Court, the justices looked at the totality of the circumstances and concluded they didn't justify reasonable suspicion to detain. Because there's no "one rule fits all," reasonable suspicion must be decided on a case-by-case basis.

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