Arrest of Individuals Filming an Arrest May Rise to the Level of a Constitutional Violation

Diane and Andre Johnson, who were arrested following their criticism of a police officer's arrest of a third party, brought an action against the police officers alleging false arrest, retaliatory arrest, and malicious prosecution under § 1983, and against the county for municipal liability under § 1983. Johnson v. DeKalb County, Georgia, 391 F.Supp.3d 1224 (N.D. Ga. 2019). Defendants moved for summary judgment.

The Johnsons had gone to a restaurant to meet their friends, the Chambers. The Chambers left the restaurant before the Johnsons, using a backdoor at the side of the restaurant to exit. The Johnsons then left the restaurant and got into their car. However, as they were leaving the parking lot, they noticed that a police car had blocked the Chambers in their parking spot. Ms. Johnson approached Officer Deron Fulton, identified herself as a friend of the Chambers, and asked what was happening. Officer Fulton told Ms. Johnson that Mr. Chambers had identified himself as a police officer, and that he was going to place Mr. Chambers under arrest. Ms. Johnson stated that she was going to record the arrest, returned to her car to retrieve her phone, and told Mr. Johnson what was occurring.

As Ms. Johnson tried to record Officer Fulton, he walked toward her and was visibly irritated by her questions and her filming. She asked for his name again once he stood in front of her. He refused to provide her with his name, and instead knocked the phone out of her hand. As Ms. Johnson picked her phone up off the ground, Officer Fulton ordered her to “get off his scene” and move to the front wall of the restaurant. While standing against the wall, Ms. Johnson again held her phone up to film, and asked Officer Fulton for his name. Officer Fulton then arrested the Johnsons. Officer Fulton obtained arrest warrants against Ms. Johnson for misdemeanor obstruction and against Mr. Johnson for disorderly conduct; however, the charges were dismissed by the solicitor general's office.

With regard to Ms. Johnson’s claim of false arrest under § 1983, the court found that Officer Fulton lacked arguable probable cause to arrest her for obstruction as Ms. Johnson’s questioning did not rise to the level of “affirmative interference,” and that the officer is not entitled to qualified immunity. With regard to Mr. Johnson’s claim of false arrest under § 1983, the court found that Officer Fulton lacked arguable probable cause to arrest him for disorderly conduct. Based on Mr. Johnson’s version of the events, the court found a genuine dispute of material fact existed as to the facts surrounding Mr. Johnson's arrest. The court further found that Mr. Johnson’s conduct would not place a person in reasonable fear for his life, limb or health, and that while such words may be disrespectful and vulgar, his words do not constitute “fighting words.”

With regard to the Johnson’s claim of retaliatory arrest under the First Amendment, the court found that their speech/conduct were protected by the First Amendment because, at most, their statements constituted criticism of the officer’s police work and that a reasonable jury could find that the Johnson’s protected speech was the motivating factor behind their arrests. With regard to their claims for malicious prosecution under § 1983, the court found that Officer Fulton is not entitled to summary judgment because he lacked probable cause to arrest a jury could reasonably conclude that Officer Fulton knowingly provided false information in his warrant applications.

With regard to Mr. Johnson’s § 1983 claim against the county, the court found that the county is entitled to summary judgment. Mr. Johnson alleged that the county's disorderly conduct ordinance, which constitutes an official county policy, allows the county to “routinely and customarily” interfere with the “expression of constitutionally-protected speech” through the arrest and prosecution of citizens “solely for engaging in constitutionally-protected speech.” The defendants argued that such theory of municipal liability fails because he was not arrested under the county's disorderly conduct ordinance but was arrested under the Georgia disorderly conduct statute. The court agreed, finding that the official policy or custom must be the moving force of the constitutional violation to establish municipal liability and that Mr. Johnson has not established the causal link between the county ordinance and his injury.