Federal Court Says Sheriff Violated Citizen Journalist’s Rights So Hard There’s No Need To Bring In A Jury

As they say, the wheels of justice grind slowly. The presumed upside is that they grind finely, which means every periodic iteration should produce better outcomes. And maybe that’s true in some cases. (Cases handled in the Fifth Circuit, not so much.)

This one’s in the Fifth Circuit but at least hasn’t suffered the possible indignities that court might inflict on Texas resident Justin Pulliam’s rights. (BUT THE DAY IS STILL YOUNG.) For now, citizen journalist Justin Pulliam (represented by the Institute for Justice) has secured a string of wins against the law enforcement agency that had him arrested for recording officers performing their public duties in a public place.

In December 2021, Pulliam decided to follow a Fort Bend County Sheriff’s Office vehicle that flew past him at a high rate of speed in the opposite lane of traffic. He arrived shortly after the FBCSO deputies arrived at a house, presumably to assist in a mental health distress call.

Standing more than 100 feet away, Pulliam began recording the encounter. An FBCSO officer saw Pulliam filming and ordered him to move all the way across the street from where officers were dealing with the mentally ill man. Pulliam refused, stating he was no closer than other onlookers, even if he was the only one recording the encounter. He backed up another 40 feet, though, placing him nearly 170 feet away from the nearest officer involved in the mental health call. That apparently wasn’t enough for Deputy Tyler Rollins, who shortly thereafter arrested Pulliam while ignoring other onlookers that were dozens of feet closer to the action.

The deputy seized all of Pulliam’s recording equipment and his iPhone. Most of that was returned after Pulliam was charged with “interfering” with the law enforcement operation from 170 feet away. Conspicuously missing from the returned property? The SD cards containing his recording of this incident.

Pulliam sued. And he won. A federal court said FBSCO officers violated Pulliam’s rights by arresting him for interference he couldn’t possibly be committing. It also reminded officers that recording police is a protected activity. And it shot down the government’s dismissal attempt by making it clear Pulliam was still a journalist, even if he didn’t fit the traditional definition of the term. It reaffirmed the right to record police and allowed Pulliam to move forward with his lawsuit against the FBSCO, the involved officers, and the county that employed them.

But that wasn’t the only violation alleged in the lawsuit. Before the incident at the welfare check, the sheriff’s office (this time personified by the sheriff himself and his direct orders) engaged in retaliatory action by deliberately excluding Pulliam from a press conference in a public park by sending deputies over to remove him. This incident happened six months before his rights were violated again by deputies when he began recording a response to a mental health call.

The federal court handling this case allows most of Pulliam’s claims to move forward against the sheriff for both sets of rights violation. Most importantly, it has ruled Sheriff Eric Fagan must continue to face this lawsuit without the shield of immunity, as the Institute for Justice reports.

First, the court [PDF] makes it clear Pulliam is a journalist, no matter how much the FBSCO may argue otherwise.

At the outset, I must address the threshold issue of whether the activities undertaken by Pulliam—a citizen who posts opinion-laden news coverage of law enforcement on social media channels—are protected by the First Amendment. The answer is, unequivocally, yes.

That means Sheriff Fagan telling deputies to remove Pulliam from the press conference because “he is not part of the local media” was clearly unconstitutional. The government doesn’t get to restrict speech or access just because it has opinions about that person’s status.

Furthermore, belated excuses — ones not raised until the sheriff was sued — don’t make things any more excusable. Allegations that Pulliam had previously harassed other people at the scene and that other journalists claimed Pulliam made them “uncomfortable” don’t mean a thing since they weren’t voiced during the sheriff’s ejection of Pulliam from the press conference.

They mean even less in the constitutional context.

That Fagan’s actions violated Pulliam’s First Amendment rights was established by the Supreme Court decades ago…

And when something’s been that clearly established for that long, the chance of securing qualified immunity quickly drops to zero. It’s even worse for Sheriff Fagan here, as the court makes it clear it’s not even going to bother asking the jury whether or not rights were violated. The only question worthy of the jury’s time and attention is how much Sheriff Fagan should pay Justin Pulliam.

In this case, the video speaks for itself. Pulliam walked up to the press conference as directed by an FBCSO employee. Before the press conference even began, Fagan ordered Pulliam’s removal without offering a justification that survives strict scrutiny. As such, Fagan is not entitled to qualified immunity. A trial as to Fagan’s liability on this claim is unnecessary. A jury should determine only the quantum of damages that Fagan owes to Pulliam.

Oof. That’s going to speed the wheels of justice up a bit. A couple of deputies do get immunity though under the dubious “just following orders” standard but it’s the sheriff himself that’s going to end up going down for this, even if being held responsible just means spending other people’s money to compensate Pulliam for his violated rights. Sheriff Fagan is a special kind of cop, though. He’s the kind that violates rights so transparently he can’t even luck into a jury trial. Pin that feather in your cap, Sheriff. Then get on the horse and ride the fuck up on out of the law enforcement business.