A Maryland Capitol Police officer cannot be sued for having arrested a protester who was filming him attempting to move the protest away from a State House sidewalk, the state’s attorney general told a federal appeals court this week in resisting a free speech challenge lodged by the detained gun rights advocate.
In papers filed in the 4th U.S. Circuit Court of Appeals, Attorney General Brian E. Frosh said the officer has “qualified immunity” from suit because the asserted First Amendment right to record police has not been clearly established – or even granted – in Maryland.
Sgt. Brian T. Pope was therefore acting on a reasonable and good-faith belief that Kevin Hulbert was acting in defiance of the officer’s lawful order on Feb. 5, 2018, that he move for safety’s sake from the sidewalk to the adjacent Lawyers’ Mall, which is reserved for protests, Frosh wrote.
“This (4th Circuit) Court has only considered the issue once and, in an unpublished opinion, the panel declined to recognize the right” to record police, Frosh stated, citing the 4th Circuit’s 2009 ruling in Szymecki v. Houch. “And even if this court were to recognize a constitutional right for the first time in this case, Sgt. Pope would still be entitled to qualified immunity because the right would not have been clearly established at the time he took the actions at issue here.”
Frosh’s position that the right to record police was unsettled four years ago and remains so drew harsh criticism from Hulbert’s attorney Wednesday.
“Our attorney general, who likes to position himself as a champion of the Constitution and civil rights, is taking the position that people don’t have the constitutional right to film their interactions with police,” said Cary J. Hansel III, of Hansel Law PC in Baltimore. “Not only is that utterly indefensible as a matter of law but it is contrary to his professed love of the Constitution and civil rights.”
Frosh is defending Pope against claims that he violated Hulbert’s First Amendment right to film the police, as well as his and his brother Jeff Hulbert’s right to protest — allegations Frosh has sought to have dismissed based on the argument that that the siblings disobeyed the officer’s lawful order to move their protest.
U.S. District Judge Stephanie A. Gallagher rejected Frosh’s arguments last year in allowing the Hulberts’ lawsuit to proceed to trial.
Gallagher said the First Amendment rights to record police and to peacefully protest on a public sidewalk were clearly established by February 2018, thus removing Pope’s qualified immunity from suit.
In her decision, Gallagher noted – as Frosh argued — that neither the U.S. Supreme Court, 4th Circuit or Maryland’s top court has found a First Amendment right to record police.
But Gallagher added that decisions of other circuits have uniformly found the filming of officers to be constitutionally protected, thereby creating a “consensus of persuasive authority” of which police officers are presumed to be aware. Gallagher also quoted Pope’s deposition testimony that “the public has a First Amendment right to film police in the conduct of their … official duties in public.”
Frosh, in his 4th Circuit appeal, said the decisions of these other federal appeals courts are nonbinding on Maryland and thus the right was not established, let alone clearly established, in the state.
“Even if there were a clearly established right to record law enforcement peacefully from a distance, these cases would not place an officer on notice that it would violate clearly established law to arrest someone who had disobeyed multiple orders to move a few feet for safety reasons and then took out a cellphone to record the officer,” Frosh stated in the papers signed by Assistant Attorney General James N. Lewis.
“If this court were to conclude that there is a First Amendment right to record law enforcement – and that the right protects people who are being ordered to move for safety reasons and choose to record the officer only after receiving and disobeying multiple orders – then Sgt. Pope should still be granted qualified immunity,” Frosh added. “If the right exists, it was not clearly established in February 2018 to fit the particular facts of this case such that a reasonable officer in Sgt. Pope’s shoes would have known that his actions violated a clearly established right.”
But Hansel, Hulbert’s attorney, called it “preposterous” for Frosh to argue that the right was not clearly established when Pope himself acknowledged his belief the public has a First Amendment right to record police.
The Hulbert brothers were founding members of Patriot Picket, a gun rights group that has regularly protested on Monday nights during Maryland General Assembly sessions.
The Hulberts were arrested and cited at the Annapolis police station for disobeying a lawful order before being released after about an hour. The charge was dismissed on Feb. 9 and the brothers filed suit five days later.
Jeff Hulbert died in early May after a lengthy battle with cancer and his estate is pursuing the lawsuit.
In denying the state’s motion to dismiss, Gallagher said it will have to be determined at trial whether the Hulberts’ presence on the sidewalk unduly impaired pedestrians or presented such a risk to public safety due to the proximity to a street as to warrant Pope’s demand that they move their otherwise constitutionally protected protest.
The state then appealed to the 4th Circuit.
The 4th Circuit has not stated when it would rule on the appeal. The case is docketed at the 4th Circuit as Kevin Hulbert et al. v. Brian T. Pope, No. 21-1608.