Threat of Arrest Chilled Photog’s Free Speech

     SAN FRANCISCO (CN) – A police chief who threatened to arrest a man for recording him after a city council meeting violated the man’s First Amendment rights, a federal judge has ruled.
     George E. Barich sued the city of Cotati and its police chief, Michael Parish, in January 2015 for allegedly violating his right to free speech and right to record city officials on duty.
     Cotati is a small municipality in Sonoma County about 43 miles north of San Francisco with a population of 7,265, according to 2010 Census data.
     The police chief approached Barich as he was leaving a Cotati City Council meeting on April 22, 2014, and threatened to arrest Barich if he was recording him, according to the ruling.
     “I told [Barich] that if he were recording me – and thereby lying to me by telling me that he was not – I would arrest him,” Parish said in deposition testimony, adding he “wanted to make sure he wasn’t being recorded.”
     In an Oct. 20 ruling, U.S. District Judge Vince Chhabria found, based on those undisputed facts, it’s clear the police chief violated Barich’s First Amendment rights.
     Although Barich was not recording the police chief at the time the threat was made, the threat was still “significant from a First Amendment standpoint,” the judge found.
     Chhabria rejected the city’s arguments that the threat of arrest did not chill Barich’s First Amendment rights because he continued to record Cotati public officials after the incident.
     “All that matters is whether a defendant’s conduct would chill a person of ordinary firmness,” Chhabria wrote. “No reasonable trier of fact could doubt that a person of ordinary firmness would be deterred by the threat of arrest.”
     Chhabria said the Ninth Circuit has made clear since the 1995 case Fordyce v. City of Seattle and subsequent cases that the First Amendment protects the “right to film matters of public interest.”
     He also found the city liable for the police chief’s actions, citing the Supreme Court case Morell v. Department of Social Services, which says local governments may be liable when an official with policy-making authority violates a person’s constitutional rights.
     However, the judge declined to rule on whether the police chief’s threat to arrest Barich for calling a public official a “liar” at the city council meeting also constituted a First Amendment violation.
     The judge found too many factual disputes exist to issue a summary judgment ruling on that matter.
     Barich claims he turned to the city’s planning commissioner as he was leaving the meeting and “from a considerable distance away” called him a “liar” in a nonthreatening manner.
     “If the facts are as Barich contends, it would have been obvious to every reasonable officer that he could not threaten to arrest Barich for what he had done,” Chhabria stated.
     However, witnesses for the city and Parish say Barich “towered” over the commissioner and “bent down so that his face was just a few feet from” the official when he called him a liar.
     Witnesses also said Barich’s face was red and that he gestured his hands in a threatening manner as he yelled with such anger and force that the planning commissioner feared for his safety, according to the ruling.
     “This factual dispute precludes summary judgment,” Chhabria ruled.
     The city of Cotati did not immediately respond to a request for comment.

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