Does a filmmaker’s Constitutional right of free speech carry the day?
A young documentary filmmaker, Kelly Ramos, embarked on a dangerous project of filming the emergence of gangs in Trenton. Ramos was filming the activities of various members of the “Sex Money Murder” Bloods sect, one of the largest gang units in Trenton when he crossed paths with the Trenton Police Department in general, and police officer Herbert Flowers in particular.
The first harsh reality occurred…
On May 12, 2006, while Ramos was attending a birthday party in Trenton. Several known gang members were also in attendance. They were socializing and drinking alcohol “out front of private property.” When the Trenton police arrived at the scene, Ramos was filming and “had positioned his vehicle in such a way so that its headlights shone on the participants of the party.”
Ramos explained what he was doing to the police. Nevertheless, Ramos was arrested and charged with obstructing traffic, contrary to N.J.S.A. 39:4-67; improper parking, contrary to N.J.S.A. 39:4-135; leaving an unattended vehicle running, contrary to N.J.S.A. 39:4-137; and obstructing a public passage on a sidewalk, contrary to N.J.S.A. 2C:33-7.
The first night we were all filming I got locked up with all of them,” Ramos said in a phone interview yesterday. “We got put into the paddy wagon and taken down to the station. They took my camera.” [via NJ.com]
The second harsh reality…
Happened shortly after the first harsh reality while Ramos was filming on a public sidewalk. Trenton Police Officers arrived at the scene and demanded Ramos cease filming. Ramos complied
Ramos was pulled over by the Trenton Police when they observed he was filming. The police cited Ramos for improperly parking within a n intersection. Ramos claimed he only parked within the intersection because he was pulled over by the police.
The fourth harsh reality occurs in the heat of July 2006
Police were shutting down a barbecue attended by a large number of known gang members in a Trenton park. Ramos was in the park filming the activity. Police officers asked Ramos to leave the park and continue his filming across the street. Ramos complied with the police instructions.
Flowers confronted Ramos after Ramos relocated across the street and told him “something would happen to him’ if he did not stop filming. Flowers also told Ramos he was going to investigate his “so-called” documentary.
The summer grows hotter
Ramos was tipped off about a meeting being held by known gang members at the Trenton Library. The Trenton police and officer Flowers arrived first, and when Ramos arrived he was told by Flowers he was interfering with a police investigation. The conversation continued when Flowers added:
I am sick of you already, I am sick of seeing you, I do not want to hear you anymore, you are not allowed here anymore.” Ramos asserts that Flowers grabbed his video camera and put it in his car. Flowers then told Ramos: “If I see you again . . . I am locking you up and I don’t care what for . . . you better not let me see you again . . . watch what happens.”
Ramos contends that he stopped working on his documentary after the July 6 encounter at the library because he feared Flowers would arrest him for no reason and ruin his life. Ramos subsequently licensed some of his gang footage to the History Channel, for which he was paid. He does not allege that he suffered any emotional distress, physical harm, or damage to his property.
In January 2007, the citations Ramos received on May 12, 2006 were dismissed, with one exception. The citation for obstructing a sidewalk was downgraded to a city ordinance violation, after which Ramos plead guilty and paid a fine.
Lights, camera, litigation
Ramos filed a three-count complaint on May 12, 2008.
Counts one and two asserted claims against Flowers under the New Jersey Civil Rights Act (Act), N.J.S.A. 10:6-1 to -2. The first count was based on the allegation that Flowers interfered with Ramos’ free-speech rights under Article I, paragraphs 6 and 18 of the New Jersey Constitution, as well as the First Amendment to the United States Constitution.
The second count alleged that Flowers violated Ramos’ rights to be free from unlawful search and seizure under Article I, paragraph 7 of the New Jersey Constitution and the Fourth Amendment to the United States Constitution.
The third count, which asserted claims against the Trenton Police Department, the City of Trenton, and the then police director, was subsequently dismissed by consent. Flowers answered the complaint, denying its material allegations.
It was more self-defense,” Ramos said. “I just wanted to be left alone and respected for what I do.” [via NJ.com]
Trial Court grants Flower’s motion for summary judgment
The motion judge determined that Flowers was entitled to qualified immunity on the Civil Rights Act claims, because he found there was no well-established right to videotape the police at the time of the incidents involving Flowers. He relied primarily on Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010). In that case, the Third Circuit concluded that “there was insufficient case-law establishing a right to videotape police officers during a traffic stop to put a reasonably competent officer on ‘fair notice’ that seizing a camera or arresting an individual for videotaping police during the stop would violate the First Amendment.” Id. at 262.
With regard to the May 12, 2006 arrest, the judge held that Ramos’ guilty plea demonstrated his acknowledgement of probable cause for his arrest. The judge entered an order granting summary judgment and dismissing the complaint.
This appeal followed. The appeals court granted the motion of the American Civil Liberties Union of New Jersey (ACLU) to appear and argue amicus curiae.
The Appeal and outcome…
On appeal, Ramos argues that the motion judge erred (1) in applying qualified immunity to actions brought under the Civil Rights Act and (2) in dismissing his unlawful arrest claims.
In summary, we hold that (1) qualified immunity is an affirmative defense under the Civil Rights Act, (2) the defense of qualified immunity applies only to claims for money damages and not to claims for injunctive relief, and (3) the right to engage in news gathering for the purposes of creating a documentary concerning a matter of public interest is protected by the First Amendment and the New Jersey Constitution and that right was clearly established in 2006 for qualified-immunity purposes.
We also conclude that Ramos’ unlawful search and seizure claims were broader than those addressed by the motion judge and that the record before us is not sufficient for us to review the dismissal of those claims as they relate to the May 12, 2006 incident.
Consequently, we reverse the order on appeal and remand to the Law Division for further proceedings consistent with this opinion. In doing so, we express no opinion on the merits of Ramos’ underlying claims. As noted at the beginning, for the purposes of this opinion, we have viewed the facts in the light most favorable to Ramos.”
Reversed and Remanded.
Key take aways
Because we are reviewing a motion for summary judgment, we outline the facts in the light most favorable to Ramos, the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).
It is well-established that our review of the motion judge’s conclusions of law is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (“A trial court’s interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.”). We apply the same standard as the trial court under Rule 4:46-2(c). Brill, supra, 142 N.J. at 539-40.
- We turn first to Ramos’ argument that the motion judge erroneously applied the defense of qualified immunity to his claims under the Civil Rights Act. N.J.S.A. 10:6-2(c) provides:
Any person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law, may bring a civil action for damages and for injunctive or other appropriate relief. The penalty provided in subsection e. of this section shall be applicable to a violation of this subsection.”
The Act was adopted in 2004 “for the broad purpose of assuring a state law cause of action for violations of state and federal constitutional rights and to fill any gaps in state statutory anti-discrimination protection.” Owens v. Feigin, 194 N.J. 607, 611 (2008) (citations omitted).
We have recognized two types of claims under the Act: first, a claim for when one is “deprived of a right,” and second, a claim for when one’s “rights are interfered with by threats, intimidation, coercion or force.” Felicioni v. Admin. Office of Courts, 404 N.J. Super. 382, 400 (App. Div. 2008), certif. denied, 203 N.J. 440 (2010). Interference with a right need not actually result in actual deprivation of the right. Ibid.
Ramos and the ACLU argue that the motion judge erred by applying the qualified-immunity defense applicable in cases brought under § 1983 to cases brought under the Act. Flowers argues that he is entitled to those immunities and the immunities conferred by the TCA.
In Owens, supra, 194 N.J. at 614, our Supreme Court surveyed the legislative history of the Civil Rights Act and found no indication that the Legislature intended to apply the notice requirements of the TCA to actions brought under its provisions. Consequently, the Court concluded that they were inapplicable. Based upon our review of the legislative history, we reach a similar conclusion with respect to the statutory immunities contained in the TCA. There is nothing in the text of the Act or its legislative history to suggest that the Legislature intended the TCA immunities to apply to actions brought under the Act.
The appeals court concluded that the Legislature anticipated that New Jersey courts would apply the well-established law concerning the affirmative defense of qualified immunity in adjudicating damage claims under the Act. The motion judge’s consideration of qualified immunity as an available defense to damage claims in this case was, therefore, not error.
However, “[d]octrines of immunity have not been held to bar injunctive remedies in § 1983 cases.” T & M Homes, Inc. v. Mansfield, 162 N.J. Super. 497, 520 (Law Div. 1978) (citing Wood v. Strickland, 420 U.S. 308, 314 n. 6, 95 S. Ct. 992, 997, 43 L. Ed. 2d 214, 221 (1975)). See also Denius v. Dunlap, 209 F.3d 944, 959 (7th Cir. 2000). Therefore, to the extent the judge applied qualified immunity in considering Ramos’ prayer for injunctive relief, the judge erred as a matter of law.
A documentary about a subject of public interest, such as urban gangs, is a form of investigative journalism, and the process of preparing such a documentary is a form of news gathering. For that reason, those activities are protected by the First Amendment to the United States Constitution and by the New Jersey Constitution, most particularly Article I, paragraph 6.
Because the creation of a documentary about a matter of public interest is a form of news gathering and expressive speech, there was certainly nothing new or novel about Ramos’ filming of police activity. News footage of police activity has been a fairly regular feature of television news programs at least since the 1950s or 1960s. Although not dispositive, we note that the police officers, other than Flowers, allowed Ramos to continue to film on July 2, 2006, once he had moved across the street as they requested. The confrontation with Flowers
Consequently, the appeals court concluded that a reasonable police officer in 2006 could not have believed he had the absolute right to preclude Ramos from videotaping any gang activities or any interaction of the police with gang members for the purposes of making a documentary film on that topic. The motion judge erred in holding otherwise.
Ramos’ activity was “subject to reasonable time, place, and manner restrictions.” Id. at 84 (citation omitted). Such restrictions, however, must be content neutral and “‘narrowly tailored to serve a significant governmental interest’” and “‘leave open ample alternative channels for communication of the information.’” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 2753, 105 L. Ed. 2d 661, 675 (1989) (quoting Clark v. Cmty for Creative Non- Violence, 468 U.S. 288, 293, 104 S. Ct. 3065, 3069, 82 L. Ed. 2d 221, 227 (1984)). The issue of whether Flowers sought to impose reasonable time, place, and manner restrictions with respect to Ramos was not considered in the trial court and is not before the appeals court.
The appeals court considered briefly Ramos’ claims concerning unlawful search and seizure in violation of the Fourth Amendment to the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution. First, the appeals court noted that Ramos’ claims go beyond the arrest on May 12, 2006, upon which the motion judge relied, and include the July 2, 2006 incident at the barbecue and the July 6, 2006 incident at the library.5 The motion judge did not address those matters.
Second, with respect to the May 12, 2006 incident, the motion judge found that Ramos had conceded probable cause by pleading guilty to a single down-graded charge, but cited no law to support his determination. The record does not contain a transcript of the guilty plea nor does it specify the municipal ordinance to which Ramos pled guilty. On this record, the appeals panel was unable to review the judge’s decision as to that incident.
I love this thoughtful, articulate decision. Good facts make good law. There was absolutely nothing cited by the appeals court about Ramos misbehaving; or the police claiming the filming of their activities compromised the safety of the officers.
I hate bullies. Officer Flowers bullied Ramos. He threatened his life and livelihood.
The appeals panel decision is replete case law supporting each and every finding. The decision is one that is worth your while exploring in depth.
The Constitution wins this battle, but the war still rages.
FREE Download of complete opinion Ramos vs. Flowers-a4910-10