EDITED MARCH 28, 2012 TO ADD: if someone would shoot me an email at Ken at Popehat telling me why this post is getting lots of hits from a local host today, I'd appreciate it.
The Crime and Federalism blog introduced me to Fogel v. Collins, a Ninth Circuit decision released last month. In their opinion, judges Brunetti, Fletcher, and Clifton explained what led Mr. Fogel to sue Officer Collins and the Grass Valley Police Department.
It seems that Mr. Fogel had a rockin' van.
On May 25, 2004, Sergeant Michael Hooker of the Grass Valley Police Department received an anonymous phone call about a parked white Volkswagen van. The caller reported that messages written on the van frightened her. Sergeant Hooker located the unattended 1970 van in the lot of an apartment complex. The words “I AM A FUCKING SUICIDE BOMBER COMMUNIST TERRORIST!” were painted in block letters on the back of the van above the rear window. On the rear window was painted “PULL ME OVER! PLEASE, I DARE YA[.]” Below the window in slightly smaller letters was the text “ALLAH PRAISE THE PATRIOT ACT . . . FUCKING JIHAD ON THE FIRST AMENDMENT! P.S. W.O.M.D. ON BOARD!” A small American flag was attached to the van below the lettering. The rest of the van was decorated with slogans and paintings that had no political or threatening character.
As the saying goes, don't come a-knockin' if the van is a-covered-in-quasi-literate-hyperbole.
But that doesn't matter, right? This is America, where our free speech rights are guaranteed by the First Amendment to the United States Constitution.*
[*Guarantee not valid post 9/11.]
Anyway, higher-ups in Grass Valley law enforcement were not attuned to this sort of edgy political humor.
Captain Johnson ordered Sergeant Hooker to “handle this as a bomb threat,” citing the high terror alert in the country. Now, based on Johnson’s instruction, Hooker “determined that in fact this was not protected speech, but was criminal.”
The Grass Valley anti-terrorist task force came down hard on the bad scary van:
While they were in the parking lot with Fogel, Officer Perry received word from DHS that the agency was “familiar with Fogel . . . as being a local anti government type of person” who was considered a “local nut.” Perry then arrested Fogel for violation of California Penal Code § 422 for “willfully threaten[ing] to commit a crime which will result in death or great bodily injury to another person”; § 148.1 for a “false report of secretion of explosive or facsimile bomb”; and § 415 for the “use[ ] of offensive words in a public place which are inherently likely to provoke an immediate violent reaction.” Sergeant Hooker called a private towing company to impound the van. He instructed the company not to release the van until Fogel removed or painted over the writing. Fogel was told he would have to remove or paint over the entire message in order to retrieve his vehicle from the impound lot. No one informed the towing company that a bomb might be inside because, according to Hooker, “at that point we did not believe there was one.” Fogel was held in the Grass Valley jail overnight. The local District Attorney declined to press charges, and Fogel was released from jail the following morning. Fogel recovered his van later that day after painting over the messages with white paint.
Fogel sued for the violation of his rights and for the cost of buying his pal Hipster Wally a lid so that he would re-paint the slogans on the van. The trial court granted summary judgment for the cops, finding that they were protected by qualified immunity — that is, the right violated was not a clearly established right that a reasonable cop would know about. Fogel appealed to the Fightin' Ninth.
The good: the Ninth Circuit ruled that the slogans on the van were clearly satire and political hyperbole and protected by the First Amendment, as they were not true threats. The bad: the court found that this right was not clearly established in this instance, meaning that the officers had qualified immunity for arresting a guy for slogans on the side of his van and forcing him to paint them over as a condition of getting it back. Why? Rudy could tell you:
As the district court pointed out, in no case had a court held on identical or closely comparable facts that the speech was protected by the First Amendment. That is, in May 2004, when the officers acted, there was no reported case in which a person in the post-September 11 environment satirically proclaimed himself or herself to be a terrorist in possession of weapons of mass destruction. We do not, by our invocation of September 11, 2001, suggest that the First Amendment provides less protection than before September 11. Rather, we recognize that what might previously have been understood as relatively harmless talk might, in the immediate aftermath of September 11, have been understood to constitute a real threat.
That doesn't make any sense. Bombs and weapons of mass destruction were just as threatening to the public before OMG9/11 than they were afterwards. Bizarrely worded, clearly satirical and hyperbolic language was just as clearly not a true threat before OMG9/11. And if May 2004 is plausibly the "immediate aftermath" of 9/11, we will be in the immediate aftermath for the foreseeable future. If 9/11 made everyone more triggerhappy, suspicious, and susceptible to poor judgment, and if the court indulges those failings, that DOES (despite the court's protests to the contrary) mean that our rights are now reduced.
Crime and Federalism also makes the excellent point that the decision is alarming for another reason: it seems to require a plaintiff seeking to pierce limited immunity to demonstrate not only that the nature of true threats and protected satire was previously well established, but that a court had already ruled post-9/11 on nearly the same circumstances. That makes it nearly impossible to defeat qualified immunity, and encourages police to arrest and confiscate first and consider rights later.
Last 5 posts by Ken White
- Department of Justice Uses Search Warrant To Get Data On Visitors to Anti-Trump Site - August 14th, 2017
- America At The End of All Hypotheticals - August 14th, 2017
- Lawsplainer: Why John Oliver Is Anti-Diversity Now - August 11th, 2017
- Anatomy of a Scam, Chapter 15: The Wheels, They Grind - August 10th, 2017
- We Interrupt This Grand Jury Lawsplainer For A Search Warrant Lawsplainer - August 9th, 2017