Plaintiffs arrested at a Bush ’04 election rally stated claims under First and Fourth Amendment for their arrests based on content of speech

Plaintiffs stated claims for relief for their arrests at a 2004 political rally for President Bush where they claim they were arrested for their political views. McCabe v. Macaulay, 515 F. Supp. 2d 944 (N.D. Iowa 2007). On the First Amendment claim of arrest for free speech:

The Plaintiffs’ version of the events of September 3, 2004 is set forth at length in Part IV of the instant Order and need not be restated here. It suffices to say that, when Plaintiffs are afforded all reasonable inferences, the facts show that Plaintiffs’ First Amendment rights were violated. Specifically, a reasonable jury could find that Macaulay ordered the arrests of Plaintiffs simply because he disagreed with their political viewpoints.

If a jury were to believe Plaintiffs and disbelieve the law enforcement officers, a reasonable jury could find that Plaintiffs were silent, respectful and well-mannered at all times and were peacefully protesting President Bush and his policies in a public place, a sidewalk. Where, as here, the sidewalk was not cordoned off and there was no visible indication that the sidewalk was a restricted area, Plaintiffs were entirely justified in standing on the sidewalk until Parker ordered them to move. See, e.g., Grace, 461 U.S. at 180 (holding that sidewalks surrounding Supreme Court’s building were public fora, because “[t]here is no separation, no fence, and no indication whatever to persons stepping from the street to the curb and sidewalks that serve as the perimeter of the Court grounds that they have entered some special type of enclave”). A reasonable jury could also then find that Plaintiffs repeatedly and fully complied with the various law enforcement officers’ orders to first move off the sidewalk and then move off of the strip of grass between the north sidewalk and 42nd Street NE once they were informed that such restrictions were in force. The court knows of no law that forbids Plaintiffs from politely requesting the identification of plainclothes officers and then asking why protestors were being asked to move and non-protestors were not. To the contrary, the Supreme Court long ago recognized:

[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers …. The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.

City of Houston v. Hill, 482 U.S. 451, 461, 462-63 (1987).

A reasonable jury would not have to rely solely on Plaintiffs’ own testimony to find that Macaulay targeted them on account of their viewpoint. Several third-party witnesses, a number of photographs and a videotape of the immediate aftermath of Plaintiffs’ arrests tend to corroborate Plaintiffs’ claims and contradict the claims of some of the law enforcement officers.

. . .

Having found that the facts, when taken in the light most favorable to Plaintiffs, show Macaulay’s conduct violated Plaintiffs’ First Amendment rights, the court turns to consider whether such rights were clearly established in light of the specific context of the case. Scott, 127 S. Ct. at 1774. It was abundantly clear at the time of the Rally that the First Amendment would not tolerate a federal law enforcement officer commanding state law enforcement officers to arrest a person based upon the content of their speech. …

On the Fourth Amendment claim, the court held that there was no arguable probable cause that plaintiffs violated any law of obstructing state or federal officers in the performance of their duties:

As indicated, a reasonable jury could find that Plaintiffs repeatedly and fully complied with the various law enforcement officers’ orders to first move off the sidewalk and then move off the strip of grass between the north sidewalk and 42nd Street NE. [18 U.S.C.] Section 3056 requires proof that the defendant “knowingly” and “willfully” “obstruct[ed], resist[ed], or interfer[ed] with” a Secret Service agent. Viewed in the light most favorable to Plaintiffs and affording them all reasonable inferences, the facts do not show any such actions on the part of Plaintiffs.

. . .

Here, Plaintiffs were not in a posted or cordoned off area when they were standing on the sidewalk near the Bus Entrance. At most, they were unwittingly standing in an “otherwise restricted area of a … grounds where the President … [would] be temporarily visiting.” Id. However, on Plaintiffs’ version of the facts, there is no evidence that Plaintiffs willfully and knowingly entered or remained in such a restricted area. Instead, Plaintiffs fully complied with the law enforcement officers’ orders to move, once the law enforcement officers notified them of the security restrictions in place.

. . .

Having found that the facts, when taken in the light most favorable to Plaintiffs, show Macaulay’s conduct violated Plaintiffs’ Fourth Amendment rights, the court turns to consider whether such rights were clearly established in light of the specific context of the case. Scott, 127 S. Ct. at 1774. For the most part, Macaulay does not challenge the clearly established nature of Plaintiffs’ Fourth Amendment rights on the facts as presented in this order. See, e.g., Barham, 434 F.3d at 575-76 (D.C. Cir. 2006); MacKinney, 69 F.3d at 1007.

Macaulay does specifically argue that Plaintiffs’ Fourth Amendment rights cannot be “clearly established,” because there is little existing precedent on some issues under Iowa Code section 719.1(1). See Lawyer, 361 F.3d at 1108 (lamenting “lack of detailed judicial guidance on the interplay among the statutory terms ‘obstruct,’ ‘resist,’ and ‘verbal harassment'” in Iowa Code 719.1(1)). Even if Iowa Code section 719.1(1) is not a model of clarity, however, it was abundantly clear at the time of the Rally that the Fourth Amendment would not tolerate a federal law enforcement officer commanding state law enforcement officers to arrest a person based upon the content of her speech. Macaulay’s apparent interpretation of the statute, which would criminalize asking law enforcement officers polite questions, is plainly unconstitutional under the First Amendment and wholly incompatible with precedent.