I want to tell a story of a police encounter I had almost 3 years ago in which was arrested and that shook me to the core of my beliefs about the institution police in America. But I think I should start with a little background into freedom & liberty as I see it in my state.
I was in the military and swore an oath to uphold the Constitution, very similar to a police officer's oath of office. My basic understanding of the Bill of Rights then was something that protected people on US soil so we are free to live and conduct ourselves as we see fit, generally unhampered by government intrusion. Taxes and speed limits aside, I can do what I want, where ever I please, and in the manner I choose.
I don't have that feeling, that sense of liberty anymore. I've learned firsthand that even when we conduct ourselves within the contours of the legal system, you and your property can still be taken and held by government actors for doing things that make some officials feel a little uncomfortable. Even when the thing you are doing is protected under the Constitution, that they swore an oath to uphold, even when guided by the First Amendment, police can and will engage in wrongdoing against you that would be regarded as assault and armed robbery by any other metric.
What police are doing around the country is egregious. Agents of power -- men & women with badges & guns -- with full privileges & immunities to bring violence on us peaceful types, to knowingly overstep their authority, confiscate cellphones and cameras that might capture their wrongdoing, and then crawl under that legal doctrine that was fabricated with whole cloth by the highest court in the land, qualified immunity, and say with straight faces, "Try & catch me, suckers!"
I'm disgusted by it. They don't even argue that what they do is wrong. They don't have to defend their illegal actions because their victims won't ever get their day in court to be made whole.
We can know without any doubt that police broke the law and there's not a damn thing you can do about it. And they're very well aware of this court-crafted loophole whenever they're committing their atrocities.
It's very simple, albeit at great taxpayer expense, but it happens all the time. Whenever police are sued to hold them accountable for excessive force, wrongful arrest or constitutional violations, but way before a court date can ever be set, departments' legal teams gather and craft petitions for summary judgment. Bam, "qualified immunity!" Cases are then dismissed before they begin.
I agree that police should not be foisted into litigation every time they issue a traffic summons. I agree that police should be given some latitude when they have to make snap decisions on the streets. But in a situation that wasn't particularly urgent, where they had the flexibility to make inquires as to the efficacy of their actions, and still do the wrong thing, the victims of police abuse need to have some recourse.
And on the subject of my attitude toward police, it has to be said that I have had positive experiences my whole life, with very rare and minor exceptions. My sense had always been whenever there were a few bad cops, they were eventually identified and taken off the streets.
I've been a news reporter who met weekly with the chief of police. My grandfather was chief of police in my home county. I had a mentor who was an officer, who took me fishing and gave me moral support in planning my future. I worked closely with police as board member and chair for our neighborhood association, and as a radio operator for community special events as a member of the Amateur Radio Relay League. I've worked alongside and become friends with many police officers, both as a regular citizen and as a member of the Iowa National Guard. There's simply no way anyone with a passing acquaintance with my personal story can walk away thinking I'm anti police.
To this day I'm stunned that police officers in my own community let me walk away without offering an apology for their error in judgment that day. They had just confiscated my cellphone & camera for doing nothing more than shooting video with my Canon PowerShot from a public sidewalk.
Without my only phone I couldn't even make a call to my attorney. All I could do was watch as police followed me in their vehicles as I walked the few blocks to mine. I passed by a bistro where Sgt. Yanira Scarlett, my neighborhood resource officer, was having lunch with a friend. I couldn't bring myself to interrupt her meal to alert her to what just happened.
I was fuming then, but within a few days I had several civil rights attorneys seething at the police conduct on full display in my video footage. Why are you being so difficult? Who hurt you to make you act this way? What organization are you with? Those were the kinds of questions cops were asking me.
In my reading of rights of Iowans, I've learned that our protections are somewhat different from (and in some cases better guarded than) other jurisdictions because of differences in our state constitution over the US Constitution ... in theory. Constitutionalists will understand the general foundational concept of the rights of the accused, that an individual who's being stopped for a crime has a right to know -- eventually -- the nature and cause of the accusation made against him.
What law have I broken? That was the central question, and one that the officers could not answer (until one crafty lieutenant later formulated a fictitious basis for an arrest).
The Iowa Constitution goes a step further than the federal charter. It says this right to be informed extends in all cases involving liberty, and that he must be given a copy of the cause and nature of charges against him whenever he demands it. Not at some later time and date, but when demanded. The time to deliver the copy of the cause and nature of the accusation would then be immediate, presumably at the time of the arrest.
Under Article 1 Section 10 of the Bill of Rights, the Iowa Constitution guarantees: "In all criminal prosecutions, and in cases involving the life, or liberty of an individual the accused shall have a right to a speedy and public trial by an impartial jury; to be informed of the accusation against him, to have a copy of the same when demanded; to be confronted with the witnesses against him; to have compulsory process for his witnesses; and, to have the assistance of counsel."
In my encounter, May 10, 2018, I demanded to know what I was being accused. In no specific terms I was told "acting suspicious." I was clearly and openly engaged in public photography from a very-public vantage point near police headquarters.
Am I free to go? Yes, go! No, you can't go!
I challenged Sgt. Christopher Curtis on what was illegal about my activities. He said, "Nothing, but it's suspicious." When I asked if I was free to go, he said yes, and strongly encouraged me to move on down the sidewalk. At that point an officer who identified himself simply as "a lieutenant" told me I can't leave, that I was loitering.
Some lieutenant, right? You'd think he's know what constitutes loitering. But fortunately Federal justices of the US 8th Circuit disagreed with him, because my presence and actions didn't meet the elements of the local loitering ordinance. The accusation was no doubt a feeble rationale for detaining me and demanding identification. We later determined that this lieutenant is one Lt. Josh Rhamy, who had been on the police force for more than 16 years and was compensated $91,000 the previous year, and yet shockingly ignorant.
Brad Youngblut put it plainly. He said he'd charge me with obstruction if I refused to give up my name and address, although it's not clear under which section of Iowa Code Chapter 719 I might have been charged.
Investigative detention with no investigation at all
Police never investigated me on the scene of the arrest that day. They just hurled insults and berated me for having an attitude and the audacity to question their authority to detain me. They accused me of trying to catch them doing something wrong. They said I got exactly what I wanted. I wanted to know what their legal justification was for stopping me, but every time I spoke they interrupted me.
Of course it's my right as an individual, subject to the laws of the US and the State of Iowa, to never have to answer any of their questions.
At no time during that encounter -- from the time Brad Youngblut rolled up on me in his unmarked detective car, until the time they let me go -- did any officer endeavor to determine whether I was a wanted felon. At all times they were fully aware I was engaged in a legal and lawful activity, photography from a traditional public forum.
Aside from challenging their authority over me, there was never any indication that I wasn't cooperating with them to the extent the law requires. I was open and deliberate in my photography, never attempting to hide myself or the camera, or flee, or resist any of their intrusions.
They even hinted that I might have been planning to set off a bomb at police headquarters, steal a car or ambush officers, but none of the officers on the scene undertook any investigative measures to either dispel nor confirm their suspicions. They didn't even run my information that they so incessantly demanded I furnish.
On one hand they tried to say in court filings that I wasn't under arrest, that I was merely detained for investigative purposes. But Lt. Joseph Leo put me up against the pickup, grabbed and raised my arm, went into my pockets and fished out my cellphone, a vaping device, reader specs and a napkin. That kind of a search can only be done incident to arrest (presuming probable cause for an arrest existed), or with my consent, which I immediately made clear he didn't have).
On the other hand, to support an arrest, which they now confess they did, police must have probable cause that I committed a crime. But they had no such cause, other than accusing me of loitering, a notion the US 8th Circuit Court struck down in denying officers qualified immunity (for the Fourth Amendment complaint).
To merely detain a person, officers must use the reasonable suspicion standard, which requires facts and circumstances leading a reasonable person to believe crime was afoot, and that the individual in custody was likely involved. But all they had was a guy walking down a public sidewalk, near police headquarters, in broad daylight, in the middle of the day, with cops milling about, and of course me pointing a camera at a number of illegally parked cars.
Giving a false name: John Doe
At one point during our encounter, an officer asked, "What's your name?" Someone in plain street clothes barked "He's a John Doe," to which I objected with "John Doe?" with an obvious upward inflection, making it clear to any native English-speaking person that I was challenging being classified as a John Doe, defined as a person whose identity is not known. The absurdity in claiming I gave a false name is 2-fold: I was clearly not responding to the officer demanding my information, but was objecting to the proposed classification.
In court the city argues that the arrest was good because I gave a fictitious name. But that argument fails for two reasons. First, merely stating John Doe is not giving a false name, presumably triggering Iowa Code Section 719.1A, providing false identification information. Secondly, my utterance of John Doe came after the arrest.
Besides that, in my next breath, I did give my full name, address and date of birth, but only after I established that my freedom & liberty had evaporated. Because the stop and the demand for ID were in fact compulsory, I capitulated only under threat of arrest. I might have -- to borrow a military axiom -- died on that hill, but I had animals at home that required my care.
Intentional Infliction of Emotional Distress
The conduct exhibited by the officers was reprehensible to say the least. They humiliated me on a busy street and flexed their power over a law-abiding individual, and then stole my cell phone and camera without cause.
By using the authority vested in them by the State of Iowa, the officers surrounded me, arrested me, with hands on lifted my arm, searched my pockets, held me against a pickup, prevented me from leaving, and stole my cellphone and camera. Throughout the ordeal they surrounded me as they insulted and berated me, and warned me that if I returned I'd be cited for criminal trespass. Defendants also followed me to my car. Through their PIO the department was suggestive that my behavior was predatory. Viewing these facts in the light most favorable to me, as is the standard in cases like this, a jury could certainly see this type of conduct by police officers as outrageous.
According to the Iowa ACLU:
"You have the right to photograph or film anything that is in plain view when you are lawfully in a public space. This includes state and federal buildings, transportation facilities, and police/government officials carrying out official duties. However, the U.S. Court of Appeals for the Eighth Circuit, which includes Iowa, has upheld a permit requirement that banned all commercial activities — including commercial photography — in a public park without a permit. That permit requirement could not apply to noncommercial photography though, like filming a political protest or police abuse that might take place in the park."
Daniel Robbins
I could be wrong, because I'm no attorney, but...
