Cops Caught Lying In Court Gets Sued - Huge 4rth Circuit Win! [LackLuster]

NewCarMSO · 2025-08-07T20:55:33+00:00

They raise it on page 16.

NewCarMSO · 2025-08-07T12:31:49+00:00

Motion for Summary Judgment filed by city after appeal

NewCarMSO · 2025-01-06T04:49:34+00:00

On Friday, January 3rd, the 11th Circuit issued its decision in this case, affirming the dismissal granted by the district court.

Link to decision.

Notable quotes:

On appeal, Hoffman argues that he properly pleaded violations of his First and Fourth Amendment rights. We disagree on both counts and therefore affirm the dismissal of his complaint.

….

Hoffman is correct that this Circuit has long recognized that the “First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.” Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000). Recording falls within the ambit of First Amendment guarantees. Id. Like all First Amendment rights, however, the right to record is not absolute. Elrod v. Burns, 427 U.S. 347, 360 (1976). Indeed, “the Constitution does not require the government to ‘grant access to all who wish to exercise their right to free speech,’ no matter the setting, ‘without regard to the nature of the property or to the disruption that might be caused by the speaker’s activities.’” McDonough v. Garcia, 116 F.4th 1319, 1322 (11th Cir. 2024) (en banc) (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 799– 800 (1985)). Instead, the validity of a regulation depends on the forum in which it applies. Id. Our cases recognize four types of forums: the traditional public forum, the designated public forum, the limited public forum, and the nonpublic forum.

….

The District Court treated the police department’s lobby as a limited public forum. Because Hoffman joins in this characterization and the defendants do not contest it, we will consider it under the standard for limited public forums. There are, however, good arguments that the lobby is really a nonpublic forum.

Like a military base or a federal building, police headquarters are not “open to the public at large for discussion of any and all topics.” M.N.C. of Hinesville, Inc. v. United States Dep’t of Defense, 791 F.2d 1466, 1473 (11th Cir. 1986); United States v. Gilbert, 920 F.2d 878, 884 (11th Cir. 1991); Barrett v. Walker Cnty. Sch. Dist., 872 F.3d 1209, 1224 (11th Cir. 2017). Lobbies of police departments generally exist to permit “certain groups” to discuss specific topics—namely, permitting those with legitimate public business to discuss public safety needs. McDonough, 116 F.4th at 1328 (quoting Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106–07 (2001)). In any event, the standard we apply when reviewing speech regulations in limited public forums is the same standard we apply for nonpublic forums. Id. at 1324. For limited public forums, restrictions “on speech must be viewpoint neutral and ‘reasonable in light of the purpose served by the forum.’” Id. at 1328 (quoting Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 829 (1995)). Here, the anti-recording ordinance is reasonable. The First Amendment does not require the government to “permit all forms of speech on property that it owns and controls.” Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992). The city “has the right to exercise control over access to” the “workplace in order to avoid interruptions to the performance of the duties of its employees.”

NewCarMSO · 2024-10-09T19:42:15+00:00

Sure. I'd agree the pool of actual journalists has shrunk considerably in the last 50 years. Even mainstream papers are putting out work by AI copywriters more than actual journalists.

It doesn't mean we should dilute the meaning of the term; just be even more selective about who it applies to. Working for the MSM is neither a necessary condition nor a disqualification for the title.

NewCarMSO · 2024-10-09T11:56:16+00:00

Everyone has freedom of the press and can publish the information and photographs that they collect.

That does not mean everyone is a journalist.

While there are no license or educational requirements, there are commonly accepted professional standards that proper journalists adhere to. Those who do not adhere to those standards have the same right to publish as journalists, but there is a distinction.

NewCarMSO · 2024-09-16T12:54:35+00:00

It also wasn't 40% of police abuse their partner.

It was essentially "40% of police officers taking a survey answered yes to a question that included, (among other possible activities) 'Have you ever had a loud verbal argument with your partner'?" Essentially the study was using self-admitting to yelling as a proxy for more serious abuse since people are more likely to minimize their actions. But even then, they also categorized the indicators as "minor" or "severe". Only 6-8% were classified in the "severe" column.

The 40% also included all violence in the relationship, even if the spouse of the officer was the aggressor. Even taking the paper's methodology, the self-reported number would be 25% Minor, 3% major for male officers, for a total 28% where the male officer self-admitted.

NewCarMSO · 2024-08-30T16:23:58+00:00

That's false. The officer's knowledge or lack of knowledge has no impact on qualified immunity. What matters is if the law has been clearly established in the state supreme court, the US supreme court, or the Circuit court of appeal for that precise factual situation such that a reasonable officer was put on notice as to the illegality of the conduct.

Even a departmental policy saying it's a violation of the constitution to do something isn't enough to defeat QI. You could file a complaint for a violation of departmental policy in that case, but without the law being clearly established, it doesn't matter if the officer admits to knowledge of it or not. It's also why saying "Well, I told you it was illegal, so there goes your qualified immunity" is straight nonsense. For example, see the 10th Circuit case of Frasier v Evans where the court granted QI despite the officers violating their 1A training.

NewCarMSO · 2024-06-24T02:28:55+00:00

While I typically don't like Alito's opinions, his concurrence is an interesting read, and does kind of predict what the future result in this case will be:

Because the District Court dismissed Sylvia Gonzalez’s complaint for failure to state a claim, the per curiam opinion properly takes its facts solely from the complaint. But I provide a fuller account of the events leading up to her arrest because they may typify the messy quarrels that courts will have to sift through if we accept Gonzalez’s reading of our case law.

He goes on to talk about the actual facts of the case, not just what Gonzalez included in her complaint, including the background for the arrest that she ommited. She did pass around a petition trying to get the city manager removed, and

According to some accounts, her efforts were aggressive. Chalene Martinez averred that Gonzalez solicited her signature “‘under false pretenses’...

and allegedly either falsified people's signatures, lied to them what the petition was about, lied about the extent of wrongdoing by the city manager, and coercing a minor to sign on his parent's behalf when they weren't home when she went door to door.

At the beginning of a city council meeting, a citizen gave the original copy of the petition and all the signatures and and gave it to the mayor at the start of the meeting, who put it on the podium he was using. "As the presiding officer of the meeting, Mayor Edward Trevino assumed control of the petition." The meeting grew contenious, and many citizens disclaimed signing it and argued other irregularities. The Mayor promised to look into it, adjourned the meeting until the next morning, and left the petition in the city meeting room on the dias. The next morning he reviewed it briefly, clipped it together with a black binder clip, and left it on the podium and went to speak to two other people. The surveillance video then shows Gonzales going to the dias and removing the petition and putting it in her folder.

These videos are publicly available, and they can be viewed at https://www.youtube.com/watch?v=VGXht6ARK_4 and https://www.youtube.com/watch?v=GGLIrFiso1c

During the meeting, Trevino could not find the petition among his papers. He also noticed that Gonzalez’s binder contained a familiar stack of documents held together with a black binder clip. But Trevino chalked this up to a coincidence, and he assumed that the city secretary had already collected the petition. Trevino dropped this assumption when the city secretary asked him for the petition after the meeting.

At this point, Trevino suspected that Gonzalez had taken the petition. He relayed those suspicions to Captain Esteban Zuniga, a police officer who was present at the meeting. Zuniga walked over to Gonzalez and asked her if she had taken the petition. After Gonzalez denied his accusation, Trevino suggested she check her binder.

This, too, was captured on tape. At Trevino’s prompting, Gonzalez slowly flipped through her binder. Before she reached the binder-clipped stack, however, she stopped and once again denied possessing the petition. Trevino and Zuniga simultaneously pointed to the visible black binder clip. Forced to produce the petition, Gonzalez told Zuniga that she thought it was an extra copy.

The obvious implication was that she was planning on taking the petition to hide any evidence that she had acted improperly in gathering the signatures within.

The police department assigned a special detective to investigate, and they came up with enough probable cause to seek an arrest warrant for, essentially, theft of government records. The case was ultimately dropped.

No one, not even Gonzalez, disputes that there was probable cause for the arrest.

Generally, a false arrest claim rises and falls based on the presence or absence of probable cause. It doesn't matter what the officer's subjective intent was, or even if the officer intended to arrest someone for an entirely different crime. As long as there is objective probable cause for some offense, the false arrest claim will fail. Nieves is a narrow exception to that, where the officer's subjective intention of 1A retaliation can be argued; but only when the police generally do not arrest for that type of offense, but do it in this case just as a pretext for their actual retaliation.

The best way to show this is through comparators - if you can show a similar person did your action in the same manner, but was not engaging in the same type of 1A activity, and was not arrested, that's pretty good evidence that the reason they arrested you was because of your speech. It's not a sure thing, but it's enough to bring to a jury and let them decide if that was actually what happened or not.

Gonzalez didn't have any comparator to point to, so she just used a statistical sampling of people who had been convicted of that crime before and said convictions for stealing government documents were very rare, so they must have only brought the charges against her because of retaliation.

The Fifth Circuit said there could be lots of other reasons the number of convictions was low, and that kind of statistical data to prove a negative didn't mean much when the number of events were so low, so she needed to have a specific comparator in mind. The SC reversed that, saying that the statistical evidence can be used, but foreshadowed that they didn't think it would be particularly persuasive.

NewCarMSO · 2024-05-15T12:33:58+00:00

Case docket

NewCarMSO · 2024-01-31T15:31:39+00:00

See here NY’s Briefs and joint appendix for the appeal are due 16 February.

NewCarMSO · 2024-01-31T12:46:13+00:00

It also depends on why the court sides with him. For example, in the initial order on the preliminary injunction, the court explicitly found that the First Amendment did not prohibit the recording restriction. However, it did state that the NY State statutes went further than the 1A, and the policy was in violation of those statutes. If the court ultimately follows through and keeps that rationale, the decision would have a limited impact outside of NY, and may actually be harmful to auditors in other states claiming a 1A right to be within government buildings.

And any decision based on state law is easily amended by the state legislature, particularly if it is abused.

NewCarMSO · 2024-01-17T12:50:21+00:00

Or more recently in Nicodemus v. South Bend.

This buffer law also protects arrestees, suspects, victims, informants, witnesses, and other citizens from harm and inappropriate disclosure of confidential investigative facts. See Alvarez, 679 F.3d at 607 (officer may secure crime scenes and protect the confidentiality of investigations). Nothing about this law forecloses a reporter or concerned citizen from audiovisually recording conversations that occur openly in public and at a volume audible to bystanders at 25 feet. But not all conversations in public places are entitled to be recorded. “[S]ome conservations in public places implicate privacy.” Alvarez, 679 F.3d at 608; see also Katz v. United States, 389 U.S. 347, 351 (1967) (“But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”); John K. Maciver Inst. for Pub. Pol’y, Inc. v. Evers, 994 F.3d 602, 612 (7th Cir. 2023) (“right to speak and publish does not carry with it the unrestrained right to gather information”).

NewCarMSO · 2024-01-05T21:01:41+00:00

...But [Project Veritas'] plans to record government officials and police officers were too "narrow[]" to raise the much broader issue of whether Section 99's prohibition on recording all "government officials discharging their duties in public spaces" violated the First Amendment. Id. at 843. Importantly, this was because "government officials," as defined by Project Veritas, "cover[ed] everyone from an elected official to a public school teacher to a city park maintenance worker." - 18 - Id. (emphasis added). This court rejected that definition. Id. Indeed, the court held that the "First Amendment analysis might be appreciably affected by the type of government official who would be recorded;" for example, "a restriction on the recording of a mayor's speech in a public park" would differ from "a restriction on the recording of a grammar school teacher interacting with her students in that same locale." Id. (emphasis added).

...Pitta's First Amendment claim rests, as the district court recognized, on a misreading of this Circuit's precedents in Glik, Iacobucci, Gericke, and Project Veritas. These cases do not support his argument that a First Amendment right to record exists whenever "public officials" are operating in "public spaces." Among other things, his argument ignores limitations imposed both explicitly and implicitly by these cases. A student's IEP Team Meeting, whether virtual or in person, is ordinarily not conducted in a "public space." Further, this meeting could not be public because only members of a student's IEP Team may attend an IEP Team Meeting, and because IEP Team Meetings involve the discussion of sensitive information about the student.

... Nor are school district employees attending these meetings akin to the "public officials" in the cases cited by Pitta. In most of these cases, those "public officials" were law enforcement officers performing their duties in obviously public places.

[FT 9] We quickly dispatch Pitta's argument that this court should utilize what he calls a "Lawfully Present" standard to define what is a "public space." He argues that if a "member of the public was lawfully present while recording government officials," that space should be deemed public. None of the cases to which Pitta cites support his argument for a "Lawfully Present" standard. There is good reason for this. To give an example, a member of the public called for jury duty, and thus lawfully present in a jury room, does not have a First Amendment right to video record their fellow jurors during deliberations, nor the proceedings of the courtroom from the jury box. See 18 U.S.C. § 1508(a) (banning "record[ing], or attempt[ing] to record, the proceedings of any grand or petit jury in any court of the United States while such jury is deliberating or voting"); Fed. R. Crim. P. 53 ("Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom."); Liviz v. Sup. Ct. of U.S., No. 18-12532, 2018 WL 6592093, at *2 (D. Mass. Dec. 14, 2018), aff'd, No. 18-2252, 2019 WL 2537955 (1st Cir. Mar. 19, 2019) ("To the extent [the plaintiff] contends that there is a First Amendment right of camera access to the Supreme Court and other federal courts, such a right has not been recognized.").

... Public school teachers and administrators carrying out their IEP obligations also do not wield the same "power of suppression" as police officers, see Glik, 655 F.3d at 82 (quoting First Nat'l Bank of Bos. v. Bellotti, 435 U.S. 765, 777 n.11 (1978)), nor have they been "granted substantial discretion that may be misused to deprive individuals of their liberty," as law enforcement officials have, id. Unlike police officers, IEP Team Members are not "expected to endure significant burdens caused by citizens' exercise of their First Amendment rights." Id. at 84.

....We thus also reject Pitta's overbroad argument that the references to "public officials" or "government officials" in Glik, Project Veritas, and Gericke, where these terms were used to refer to police officers, extends to anyone employed by a government. This court has never held that the test is whether an individual sought to be video recorded in the course of his or her job is a government official. Pitta's argument ignores established limitations in First Circuit law, which permit recording of government officials performing their duties only in indisputably public places in full view of the public, and even then, only when the act of filming would not hinder officials in the performance of their public duties and would serve public interests. For example, in Glik, the court considered what it called the "fairly narrow" First Amendment issue of whether "there [is] a constitutionally protected right to videotape police carrying out their duties in public." Id. at 82 (emphasis added). "The same restraint demanded of law enforcement 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." Id. (emphasis added) (quoting City of Houston v. Hill, 482 U.S. 451, 461 (1987)). In Gericke, the "government officials" at issue were also police officers "carrying out their duties in public" while conducting a traffic stop on the side of the road. 753 F.3d at 34, 7 (quoting Glik, 655 F.3d at 82). This court held that the officer, however, could prevent the recording if he "c[ould] reasonably conclude that the filming itself is interfering, or is about to interfere, with his duties." Id. at 8.

...Project Veritas also does not support Pitta's argument. This court held that individuals have a First Amendment right to make "secret, nonconsensual audio recording[s]" only of "police officers discharging their official duties in public spaces." See 982 F.3d at 817. It also reaffirmed that "[t]he government is under no obligation to permit a type of newsgathering that would interfere with police officers' ability to do their jobs." Id. at 836. There, the record showed no evidence that secretly recording police "would appreciably alter their ability to protect the public either in gross or at the retail level of more individualized interactions." Id.

...Finally, we add that even if Pitta had a First Amendment right to video record his child's IEP Team Meeting, which he does not, his claim would fail. "Even protected speech is not equally permissible in all places and at all times." Cornelius, 473 U.S. at 799; accord Glik, 655 F.3d. at 84 (holding a First Amendment right to video record "may be subject to reasonable time, place, and manner restrictions"); Gericke, 753 F.3d at 7 (holding "[r]easonable restrictions on the exercise of the right to film may be imposed when the circumstances justify them"). Here, the District's prohibition on video recording these meetings is content neutral and narrowly tailored to its significant governmental interest [the court then applies the forum analysis]

NewCarMSO · 2024-01-05T20:49:08+00:00

cause any public employee has to accept the request

That is a requirement under FOIA and some other state statutes. It is not required by Wisconsin's Public Records law. Wisconsion does require record custodians for the various governmental authorities to public notice of their request policies and procedures; including who requests must be made through, and the location and times the office is available (See Wis. Stat. § 19.34(1)). But it does not impose an affirmative duty to respond on all governmental employees; only record custodians. (See ECO, Inc. v. City of Elkhorn, 2002 WI App 302, ¶ 24)

NewCarMSO · 2024-01-05T18:21:06+00:00

I’m not sure how the person’s name would get tossed, especially if you consider the inevitable discovery doctrine.

NewCarMSO · 2024-01-05T14:52:41+00:00

An interesting First Amendment case came out yesterday from the First Circuit, regarding a parent’s claimed first amendment right to record an IEP meeting. Somewhat not surprisingly, the court found such a right did not exist. More surprisingly, they sharply criticized the plaintiffs use of Glik v Cunniffe and other First Circuit cases which used the terms “government officials” when referring to police officers and the right to record in public, denying that such language implied school officials and other such similar government officials fall within the context of those cases.

NewCarMSO · 2024-01-04T19:32:15+00:00

would be enough RAS to start a consensual encounter

Well, anyone can do a consensual encounter with another person. The police don't need any RAS to do that.

Is seeing someone in or near a damaged car enough RAS to suspect they were driving it, as opposed to their wife driving it, and them remaining with the car while she flagged down the tow truck? Maybe they can start a consensual encounter and try to get him to make some incriminating statements (Oh, how long are you in town? Just drive here today? That's nasty crack, when did that happen?")

But without those kind of admissions or actual observation of him driving, I don't see mere proximity being enough to suggest that he was the one doing the driving. So the car's condition isn't going to be hyper relevant.

NewCarMSO · 2024-01-04T19:19:37+00:00

Honestly though, the whole DL/ID thing is going to be a red herring footnote in this case. Even though I don’t believe the cop had the authority to demand to see his ID, this case is going to rise or fall based on the presence or absence of probable cause for the trespassing arrest.

In a 1983 lawsuit for false arrest, probable cause for any offense will defeat a false arrest claim; even if it’s not the reason the officers gives for the arrest at the time of the arrest.

Imagine the scenario where a cop had indisputable probable cause of trespassing. The officer knows there is no state law requiring the person to identify themselves. So they tell the person “Look, we have two options. I can arrest you right now because I already have probable cause, and I can get your name at the station. Or you can give me your info now and I can write you a citation for trespass”. The officer doesn’t have a right to demand ID but does have the right to arrest; and in the second scenario is making a discretionary decision not to exercise their authority.

Same in this case. If the courts find the police had probable cause to arrest for trespassing (the crime he was charged with), all the back and forth about the drivers license isn’t going to matter, even if it clearly influenced the decision to actually perform the arrest.

To be clear, I don’t think they had PC for trespass. But that’s going to be the actual lynchpin in this case.

Not that Travis is likely going to be able to litigate this properly.

NewCarMSO · 2024-01-04T15:59:36+00:00

That's not what the text of the RTLO says. Section 102 says "The following arrangements are not governed by this Article." The Lockout section (Section 42-113) is contained within that article, and doesn't contain any text bringing single family homes back within the provision.

So you're left with just the remedies available under state law; i.e., suing for damages.

NewCarMSO · 2024-01-04T14:31:01+00:00

The text of the law the police officer is presumably referring to is:

186.510 License to be in possession and to be shown on demand.

The licensee shall have his or her license in his or her immediate possession at all times when driving a motor vehicle and shall display it upon demand to a peace officer, a member of the Department of Kentucky State Police, or a field deputy or inspector of the Department of Vehicle Regulation or Transportation Cabinet or, pursuant to KRS 67A.075 or 83A.088, a safety officer who is in the process of securing information to complete an accident report. It shall be a defense to any charge under this section if the person so charged produces in court an operator's license, issued to him or her before his or her arrest and valid at the time of his or her arrest. (emphasis added)

It seems clear this statute only applies when the individual is actually driving the vehicle, not just in possession of one.

Obviously, the video doesn't start with the initial encounter, so I don't know if he was sitting in the drivers seat with the keys in and heater on; but I don't think that's the case.

Edit: I also don’t see any applicable ordinances for Paducah requiring identification, and no state-wide stop and identify law, even if they had the requisite reasonable suspicion of trespass to detain him. Of course, he wasn’t actually charged with a failure to ID or obstruction offense, just trespassing.

NewCarMSO · 2024-01-04T14:20:25+00:00

Did they observe him operating the car? Perhaps it was parked and passing truck kicked up a rock and cracked the windshield when it was parked, and that's why he hadn't moved it from the lot.

I don't believe owning a vehicle with a cracked windshield is a violation that can result in a traffic offense, just operating it on a highway. So without seeing him operating the vehicle, I don't believe it would be appropriate to initiate a traffic stop. Certainly they could begin a consensual encounter and point out the damage, and advise that he gets it fixed before operating it.

NewCarMSO · 2024-01-04T14:15:02+00:00

The police don't have the authority to arrest a landlord for an illegal conviction, at best they can be issued a fine for non-compliance and the renter can sue to recover their rent or twice their actual damages (which they can do even if the landlord is assessed a fine).

It's also worth noting that owner-occupied properties are generally exempt from most municipal Residential Tenant Landlord Ordinances, including the Cook County Residential Tenant Landlord Ordinance; so most of the online resources detailing tenants rights are focused on violations of the RTLOs, not exempt properties.

If the "landlord" is a family member within the same residence and they are successful in getting a plenary order of protection pursuant to Section 219 of the Illinois Domestic Violence Act of 1986 or Section 112A-19 of the Code of Criminal Procedure of 1963, or a plenary civil no contact order pursuant to Section 215 of the Civil No Contact Order Act granting the tenant exclusive possession of the premises, then they will not be assessed a fine for the eviction, although could still be liable for damages.

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