Crime and Federalism points to Walker v. City of Pine Bluff, No. 04-1969 (8th Cir. July 21, 2005), which affirms a denial of summary judgment on qualified immunity grounds to a police department and the officers who arrested some dude for observing an arrest. C&F gives props to Ted Boswell and John Andrew Ellis of The Boswell Law Firm who authored the briefs.
So, to be clear: police and police departments should know damn well that people can and will watch them when they do things in public. The Eight concludes:
In a democracy, public officials have no general privilege to avoid publicity and embarrassment by preventing public scrutiny of their actions. To take an obvious example, a highway road crew might like to arrest a frustrated motorist who parked his car and watched as the crew took an unauthorized three-hour lunch break, but such an arrest would be a flagrant abuse of government power. The issue is often more complex when police officers are engaged in public law enforcement activities, because some on-lookers may create safety hazards, while others may seek to frustrate valid law enforcement* * *But public police activity invariably draws a crowd of interested but benign on-lookers.
So the message is clear to town attorneys and anyone who advises cops (including general counsels of universities): you can be subject to liability under 1983 if you arrest an onlooker.
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