CA1: Journalists prevail on Fourth (but not First) Amendment claims

Asociacion de Period v. Mueller, No. 07-2196.  At long last, the First issues an opinion in a big First Amendment case.  Essentially some FBI agents were not too happy about press coverage of some raid they were conducting, and allegedly there was some violence. The plaintiffs bring suit claim that their First and Fourth Amendment rights were violated.

As to the First Amendment issues, “The plaintiffs allege that the defendants, through the use of force and intimidation, violated the First Amendment because they interfered with the journalists' ability to gather and report on the news while within the gated condominium complex and at the nearby helicopter landing field.”  The First says that because the plaintiffs didn’t show that they were authorized to enter the field in the first place.  The First stretches here, because there is some evidence that someone invited them in.  Then it gets a little weird.  It writes “ Absent evidence establishing the plaintiffs' right to enter the properties, the incidents complained of do not amount to a violation of the First Amendment.”  What?  Why “compelling” evidence?  That isn’t the standard for summary judgment.  Did the First just make that up?

As to the Fourth Amendment/Excessive Force claims.  “The plaintiffs contend that they were attempting to exit the gated area, but were impeded by the narrow pedestrian access gate. While bottlenecked in the space between the agents and the gate, the defendants hit some of the plaintiffs and, without warning, applied pepper spray directly into their faces.” The First says that the affidavits of the FBI agents are conclusory, and just say that the plaintiffs refused to move, and doesn’t actually address the plaintiffs’ injuries.  There is some discussion of the contours of excessive force.  Since the affidavits were so general, the qualified immunity argument fails on this.

Another issue is whether a DVD (which the plaintiffs argue was heavily edited) could be used by the defendants to obtain summary judgment on qualified immunity grounds.  The District Court said it wasn’t considering it.