Dallas Area Rapid Transit (DART) will pay freelance photographer Avi Adelman $345,000 to settle the lawsuit he filed after he was illegally arrested in 2016 for taking pictures at a train station. The settlement follows a federal appeals court's September 20 ruling rejecting a qualified immunity claim by Stephanie Branch, the DART police officer who arrested Adelman for trespassing and then repeatedly lied about the incident.
Adelman had been photographing paramedics as they treated a man who had overdosed on a synthetic marijuana substitute. He spent a day in jail, but the charge against him was dropped a week later. An internal investigation found that Branch had arrested Adelman without probable cause and in violation of DART's photography policy. The report also said Branch had made 23 "false or inaccurate statements" about the circumstances of Adelman's arrest, including her claim that he was standing too close to the paramedics, who supposedly wanted him to step back. She was suspended for three days as a result of the investigation but is still employed by DART.
A federal judge ruled that Branch was entitled to qualified immunity against Adelman's claim that she had violated his First Amendment rights, because case law in the 5th Circuit had not clearly established the right to take photographs of first responders in public places at the time of his arrest. But the court allowed Adelman to proceed with a claim that his unlawful arrest violated the Fourth Amendment's ban on unreasonable seizures. Branch asked the U.S. Court of Appeals for the 5th Circuit to reverse that decision.
The appeals court ruled that Branch was not entitled to qualified immunity against Adelman's Fourth Amendment claim. "No reasonable officer under these circumstances would conclude that she had authority to eject a person complying with DART policies from public property—and then arrest that person for criminal trespass when he failed to depart," the court said.
A DART policy established in June 2014 allowed people to take pictures at its stations as long as they do not "interfere with transportation or public safety activity." The 5th Circuit pointedly rejected Branch's excuse that she was not familiar with that policy, which was adopted while she was on sick leave. "Branch's mistake was not reasonable," the court said in a footnote. "She didn't misinterpret an unclear policy or law; she simply failed to learn about DART's updated policy. And 'an officer can gain no Fourth Amendment advantage through a sloppy study of the laws [s]he is duty-bound to enforce.'"
A DART audio recording of the incident that led to Adelman's arrest showed that everyone else at the scene recognized that Branch was out of line. "He was just taking pictures, right?" one paramedic said. "Why is she going crazy?" Elmar Lee Cannon, one of Branch's fellow DART officers, replied: "I don't know. That's going to be on her. He can take all the pictures he wants. That's why I'm not getting involved in that." Another paramedic concurred, saying, "I don't know where that idea [that Ademan had committed a crime] came from…because there is freedom of the press."
Adelman, a longtime defender of the right to record public events, created an educational program on the subject for police officers. In settling the lawsuit, DART rejected his request that it post its photography policy on its website. "Many transit agencies around the country post their photography in public policies on their websites," Adelman notes in a press release, including systems in Philadelphia, New York City, Los Angeles, St. Louis, New Orleans, Houston, and San Francisco. He says he will donate $2,500 from his settlement to the National Press Photographers Association for legal advocacy and another $2,500 to the Freedom of Information Foundation of Texas.
"I was arrested—and spent a day in jail—on a bogus 'throw-down' charge of criminal trespass for one reason only: to stop me from taking photographs of paramedics treating a patient in public view on public property, which is a lawful activity," Adelman says. "The subjective personal opinions of [law enforcement] personnel should never be allowed to interfere with lawful and protected First Amendment activities. I will work with, and support, First Amendment advocacy groups to make sure arrests like this never happen again, and to defend the photographer vigorously when it does happen."
I called DART's media relations department to ask about the source of the funds for its $345,000 settlement payment. I will update this post if and when I get a response, but I suspect the money will come either from DART's budget or from a liability insurance policy. Either way, Branch herself is not on the hook, which illustrates a point made by UCLA law professor Joanna Schwartz. Schwartz investigated the practices of 81 law enforcement agencies and found that "police officers are virtually always indemnified" in civil rights cases. During the period she studied, "governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement."
That practice weakens the deterrent effect of lawsuits like this one, even if they overcome the obstacles created by the misbegotten qualified immunity doctrine. At the same time, the routine indemnification of police officers who violate people's constitutional rights refutes a claim often made by the doctrine's defenders, who worry that the threat of personal liability will have a chilling effect on legitimate policing.
Update: A DART spokesman says the agency is still "making sure we have all the signatures" on the settlement agreement and can't comment on the source of the funds until that happens.
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