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Thomas More Center legal brief on Negeen Mayel

Thomas More Law Center has now appealed Negeen Mayel's conviction for "failure to obey the order of a police officer" in the Dearborn persecution of the Acts 17 missionaries. The legal brief is here. Here, here, here, and here are some of my earlier posts on the Dearborn arrests.

I've enjoyed reading through the brief and have learned a lot. In case anyone wondered, I am not a lawyer and do not play one on the Internet, but I find all of this very interesting. I have not had a chance to chase down any of the precedents cited and wish I had the time to do so. What I give here is a summary of the legal landscape as presented in the brief. Here are a few highlights:

--There is apparently a substantial body of precedent opposing the use of police power to stop people and detain them without at least some objective reason to think that they may have committed or may be about to commit a crime. It need not rise to the level of probable cause for an initial tier contact, but in order to detain the person, Mayel's lawyers argue, precedents hold that the officer cannot be acting without reason and that that reason must be related to unlawful conduct on the part of the person detained. If the policeman is detaining the person on a mere whim, the person doesn't need to stop, doesn't need to listen, doesn't need to answer his questions, and can even run away. Now, this is very interesting and is relevant to the application of those "failure to obey an officer's order" laws, because a lot of police officers seem to have a very different idea. In fact, the brief quotes at length from the testimony of the policeman who arrested Negeen, and he clearly thinks he can stop any completely innocent person, any time, demand that the person turn off a video camera, and detain and question the person at will, just because he is a policeman in uniform. Not so, says the brief.

When I was trawling message boards for information on these "failure to obey" statutes, I saw policemen referring to the following situations in which they would need to issue an order and require someone to obey:

1) A woman wants to run back into her burning house to rescue her poodle. The policeman needs to be able to stop her.

2) A policeman is carrying out an arrest on a person he has reason to believe is dangerous who may try to break free or harm a bystander. The policeman needs to be able to tell the bystanders to move along and not stand nearby during the arrest.

In neither of these cases, I assume, would the person receiving the order be about to commit a crime. On the other hand, in neither of these cases would the police officer be exactly detaining the person. Even the woman trying to rescue her poodle could presumably go somewhere else, just not back into the burning house. In any event, I'd love to have a talk with the lawyers who filed the brief about these kinds of "borderline" situations where it seems reasonable for an officer to issue an order to a law-abiding citizen.

I'm very glad, though, to see that there really are precedents indicating that a policeman cannot just grab you, grab your video camera, and interrogate you without anything remotely approaching a justification in terms of your having done something wrong.

--The brief presents evidence of what looks like a very serious legal blunder on the part of the trial judge. As best as I can understand it, the trial judge ruled pre-trial that the policeman had "probable cause" to believe that Negeen had committed a crime. He thereafter attempted to block questioning about the officer's motives for approaching Negeen, though Negeen's lawyer still was able to bring out the fact that he really did not have probable cause, despite the judge's attempts to block this line of inquiry. But just to complicate matters, the judge also issued a contradictory pre-trial ruling to the effect that the "lawfulness" of the officer's actions was a matter for the jury to decide. Now, these two cannot be disentangled. If the officer had probable cause, then his detaining Negeen was lawful and was a matter of law and not of fact. If the lawfulness of his action was a matter of fact for the jury to decide, then Negeen's lawyers had to be left unhindered to uncover fully the fact that he did not have probable cause to detain her. This seems like extremely important information on the side of Negeen's appeal of the conviction.

--The brief presents evidence of a conspiracy on the part of festival workers to bring false charges against Acts 17. When someone overheard these plans and reported them to the police, the police did not follow up. The trial judge blocked presentation of this evidence of police bias against Acts 17, even though it was relevant to Negeen's trial.

--The brief mentions a bit of police talk picked up by a microphone accidentally left running on one of the Acts 17 cameras. (I haven't seen this bit of video that I know of. I'm guessing they've been saving it for the appeal.) In it, the officer who arrested Negeen is overheard saying to a different policeman, regarding Negeen, "Okay, that's enough pain and suff. Let's release her." This is pretty damning evidence of police intent to bully and harass and police knowledge that they had no grounds for charging Negeen, yet the lawyers were blocked from the trial judge from presenting this evidence to the jury.

--The brief discloses extensive evidence of the trial judge's bias in favor of the police and against Negeen's defense, also obviously relevant to the matter of her having received due process. The judge repeatedly blocked obviously relevant lines of questioning of the police officer (the star witness for the prosecution), prevented the presentation of evidence showing bias on the part of the police, and made comments in front of the jury praising the police handling of the situation. Specifically, the judge praised as "constitutional" and a "model" the actions of the police officer who arrested Negeen. Remember, this is the same judge who ruled that it was for the jury to decide whether the policeman was in lawful pursuit of his duty!

--One part of the brief that puzzled me was the claim that an appeals court has jurisdiction to make a de novo evaluation of a claim that evidence at the trial level was "insufficient to convict." I had been under the impression that this was not so, that appeals courts could try only matters of due process, not of fact.

--The brief brings precedents to show that videotaping in public for purposes of gathering and disseminating information is a protected activity under the First Amendment. I think there would be a number of police departments who would be unhappy to be told this, but it certainly seems to me that it should be, especially considering some of the other crazy forms of "expressive activity" that are supposedly protected by the First Amendment.

Comments (7)

Lydia, are the Dearborn authorities charging Nageen with anything else. I suppose, legally, that there is no necessity for a charge of some other crime in order to charge for failure to obey a policeman, but practically speaking, it seems odd to think that she broke the law about failure to obey him if she didn't break (or appear to break, or be about to break) the law in some other way.

Personally, I think that it would be great if the Acts 17 people were to land a nice hefty law-suit against the Dearborn police, and any other Dearborn authorities who publicly supported the police actions, like the mayor. Obvious claim is wrongful arrest. There might be enough ground for defamation and/or slander, too. I wonder if you can sue a mayor for slander (or libel, if he writes it) for his supporting a policeman for making a "good arrest" when the facts (including the facts known to the mayor) show that it was a wrongful arrest, and you can prove that it was a wrongful arrest in court. That is, is the mere claim that the arrest was good when there are no facts to support it of defamatory character, since they imply an action justifying arrest?

I also wonder whether proving to be innocent on a "failure to obey" rap is, itself, sufficient ground for showing that the arrest was wrongful. This might be a stretch legally, I don't know. Generally, you want there to be a gap, a gray area that lies between "civilian should have been arrested" and "civilian should have been left alone", a gap where reasonable people can judge differently and you allow the policeman to use his best judgment. But this is a little different. If it is definitively the case that you are innocent of "failing to obey" the policeman, then ipso facto you are in the group of "civilian should have been left alone" and the policeman's refusing to leave you alone was wrongful on his part.

Tony, originally all of them were charged with disorderly conduct. I think the judge _may_ have dismissed that charge against Negeen before the trial. I'd have to look it up. The two men were tried on the disorderly conduct charges. Whoever still had the disorderly conduct charge was acquitted by the jury, and the only one found guilty of anything was her--of this "failure to obey." It was particularly ironic that she should have been the only one convicted of anything, since she was literally just standing a distance away and recording with a video camera. In essence, the jury was given to understand that a policeman can walk up to anyone and tell that person to stop videotaping and detain that person for questioning, without any reasonable suspicion that the person has committed any crime, and if the person doesn't do what the officer says, the person must be found guilty of "failure to obey." By this reasoning, the cop could walk up to any one of us on the street and tell us to do ten jumping-jacks on pain of a "failure to obey" charge.

So, yes, it more or less boiled down to, "I was in uniform and told her to stop videotaping and submit to my interrogation. She resisted doing that, so it's an open and shut case."

I expect them to sue the city for interfering with their religious liberty and freedom of speech rights, _at least_. I just hope they hurry up and do it. False arrest certainly seems called for as well, but I don't know if they will bring that into the ultimate suit against the city. The police reports also contained manifestly false statements about imminent riots and the like, statements completely falsified by the videotapes. That should feed into a lawsuit somewhere.

I don't know if the false witness, Roger Williams, actually took the stand. He made the complaint to the police that they made him feel that he "couldn't leave" when he was talking with them. There ought to be a way to bring a suit against him for making a false complaint to the police.

As far as her guilt or innocence of "failure to obey," it comes down to the question of whether that statute is to be interpreted in such a way that you have to obey any random police officer who walks up and gives you an order. Basically, the brief is arguing that that _cannot_ be what the statute means, as that interpretation would conflict with well-established 4th amendment precedents. So even though, yes, she didn't immediately stop videotaping when he told her to and even though she started yelling, "Stop touching me" and "Don't take the camera," so in that sense she "failed to obey," the brief is arguing that the statute says this is applicable only when the officer is in the "lawful performance of his duty," and coming up and ordering a completely innocent citizen to stop videotaping, trying to detain and interrogate that citizen, when you have no grounds at all for believing the citizen guilty of anything, is not the "lawful performance of his duty," which means that she was innocent. They even have a section of the brief in which they argue that the judge should have dismissed the charge against her to begin with.

Oh, sorry for the third posting, but one more relevant thing: Roger Williams's only complaint against Negeen to the police was that she was videotaping (this was in public) at a distance but within earshot of his conversation with her fellow missionaries without his permission. This is not a crime (and the policeman knew that it isn't a crime, as came out in questioning). Michigan's wiretapping law has an express "reasonable expectation of privacy" clause. So even the original complaint contained nothing at all that could be interpreted as an allegation of criminal conduct by Negeen.

I haven't seen this bit of video that I know of. I'm guessing they've been saving it for the appeal

You can't present new evidence on appeal---the appellate court will only review what was presented to the trial court. The Thomas More Center isn't run by incompetents: if they're referring to evidence in their brief it was in the trial court somewhere. I obviously can't vouch for why it didn't hit the internet.

One part of the brief that puzzled me was the claim that an appeals court has jurisdiction to make a de novo evaluation of a claim that evidence at the trial level was "insufficient to convict."

This is really just a matter of state law. Appellate courts review more than the "process" of the trial, they also review the substantive decisions of a judge---or at least they do when the appellate standards of the jurisdiction and the status of the case on appeal call for it (for instance, different standards apply to an appeal from a motion to dismiss than to an appeal from a final verdict). Generally speaking, an appellate court won't disturb a trial court's findings of fact. But an appellate court will review the facts that the trial court found to exist to determine whether or not they justify the legal conclusion that the trial court drew. So assume the defendant is charged with a crime, the elements of which are A, B, and C. The trial court finds that A, B, and -C occurred, but sustains a jury verdict against the defendant, convicting him. On appeal, the appellate court will generally accept that A, B, and -C took place: but they will reverse the conviction because A+B+(-C) = not guilty. (Most appellate courts can reverse a finding of fact if there is absolutely no evidence in the record to justify it, but that doesn't sound---based on your summary---like what happened here.) Hope that helps.

You can't present new evidence on appeal---the appellate court will only review what was presented to the trial court.

If the entire point is that the trial court _blocked_ the presentation of evidence, would not allow it, you certainly can ask the appeals court to consider the relevance of the blocked evidence to the defense. One hears all the time of appeals of murder trials where evidence wasn't presented that "might have influenced" the verdict. Obviously, a trial judge biased against the defense cannot just block exculpatory evidence or evidence of bias or wrongful action on the part of the police and then say, "Neener, neener, you can't say anything to the appeals court about this evidence, because it wasn't presented at the trial, because I didn't let you present it at the trial." The whole point of that aspect of the appeal is that the judge messed up due process by blocking the presentation of evidence the defense was trying to present!

If the entire point is that the trial court _blocked_ the presentation of evidence, would not allow it, you certainly can ask the appeals court to consider the relevance of the blocked evidence to the defense.

Yes, a judge's rulings applying the rules of evidence are reviewable on appeal. The process of reviewing that ruling on appeal could involve the submission of the evidence in question. And the appeals court would of course look at it. But that's not, at least in lawyer-speak, "new" evidence: it's evidence that was proffered in the trial court and wrongfully excluded.

Take the crime from the first post, with the three elements A, B, and C: if the trial wrongfully excludes a piece of evidence concerning the occurrence or non-occurrence of C, the court of appeals will consider that decision on appeal. It will examine the nature of the evidence and the particular rule that the trial court applied (or should have), and then instruct the trial judge to go back and re-do the trial proceedings, this time admitting the evidence in question. It will not, however, itself make a determination about the effect of that evidence on the outcome one way or another. Nor would it vacate the trial verdict if the party had the evidence at the time of trial and did not attempt to introduce it.

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