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.