145 F. Supp. 3d 492
D. Maryland2015Background
- Photojournalist Mannie Garcia filmed police detaining two people on a public street on June 16, 2011; officers confronted and arrested him for disorderly conduct; Garcia was later acquitted.
- Garcia alleges he was arrested because he was recording (First Amendment) and that an officer seized and retained the camera’s video card.
- Officers say Garcia was belligerent, loudly cursed, distracted police from processing suspects, and ignored warnings to quiet down; they deny unlawful seizure of the card.
- Procedural posture: cross-motions for summary judgment; Court considers §1983 First and Fourth Amendment claims, First Amendment retaliation, Privacy Protection Act claim, and common-law torts.
- Court finds (1) a First Amendment right to record police activity (if peaceful, non‑interfering) but grants qualified immunity for damages because that right was not clearly established in this Circuit in 2011; (2) genuine factual disputes preclude summary judgment on whether officers actually violated that right or seized the card; (3) Fourth Amendment probable‑cause issues (disorderly conduct vs. hindering/arrest/assault) mostly present triable issues, but court grants plaintiff summary judgment that probable cause did not exist for hindering or second‑degree assault; (4) declaratory relief on First Amendment claim and various state tort and PPA claims remain for trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Is recording public police activity protected by the First Amendment? | Garcia: yes — recording public governmental activity is protected speech/newsgathering. | Defendants: deny that arrest implicated the First Amendment; say arrest was for disorderly conduct. | Court: Yes — peaceful, noninterfering recording is protected. Genuine factual disputes on whether arrest was motivated by recording. |
| 2) Are officers entitled to qualified immunity for damages on the First Amendment claim (arrest for recording)? | Garcia: right was clearly established by precedent (e.g., Glik). | Officers: right not clearly established in Fourth Circuit as of June 2011. | Court: Qualified immunity granted for damages because right was not clearly established in this Circuit in 2011. |
| 3) Was seizure/retention of the video card a First Amendment prior restraint and are officers liable? | Garcia: Malouf seized the card to prevent dissemination; that is a prior restraint. | Malouf: denies taking the card; even if seized, right to retain recording was not clearly established. | Court: Seizure can be an unconstitutional prior restraint if intended to prevent dissemination, but qualified immunity for damages applies because right to such recordings was not clearly established in this Circuit in 2011. Genuine factual dispute over whether Malouf seized the card — case must go to factfinder; declaratory relief survives. |
| 4) Was there probable cause for arrest (Fourth Amendment) and for seizure incident to arrest? | Garcia: no probable cause for any offense; arrest and property seizure unlawful. | Malouf: probable cause for disorderly conduct; alternatively for hindering arrest or second‑degree assault. | Court: Triable issues exist on disorderly conduct (denies summary judgment to both sides). Court grants Garcia summary judgment that there was no probable cause for hindering arrest or second‑degree assault. Qualified immunity on Fourth Amendment claims denied. |
Key Cases Cited
- Houchins v. KQED, Inc., 438 U.S. 1 (1978) (First Amendment right to gather news from any lawful source discussed)
- Branzburg v. Hayes, 408 U.S. 665 (1972) (press newsgathering and related First Amendment principles)
- Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) (citizen has First Amendment right to record police in public)
- Roaden v. Kentucky, 413 U.S. 496 (1973) (seizure of First Amendment‑protected materials without proper authority is a prior restraint)
- Rossignol v. Voorhaar, 316 F.3d 516 (4th Cir. 2003) (seizure/suppression of newspapers by law enforcement violates First Amendment)
- Devenpeck v. Alford, 543 U.S. 146 (2004) (an arrest is lawful if there was probable cause for any offense known to officer)
- Dunaway v. New York, 442 U.S. 200 (1979) (Fourth Amendment seizures require probable cause)