Buehler's Civil Case Dismissed, for Now
Cop watch activist plans to appeal
By Chase Hoffberger,
1:22PM, Mon. Feb. 23, 2015
An eventful week – during which police accountability activist Antonio Buehler had two misdemeanor charges dismissed by municipal courts – became even more so on Friday, Feb. 20, when U.S. magistrate Judge Mark Lane dismissed the civil lawsuit Buehler had filed against the city of Austin, APD, Chief Art Acevedo, and four APD officers.
The lawsuit, filed on Dec. 31, 2013, alleged that APD officers violated the Peaceful Streets Project co-founder’s right to freedom of speech as well as his right to be free from unreasonable search and seizures. It arrived in the wake of three separate 2012 arrests for Buehler (and another incident, on Aug. 24, in which he wasn’t actually arrested): a now-iconic New Years Eve arrest by Officers Patrick Oborski and Robert Snider; an Aug. 26 arrest by Officer Justin Berry; and a Sept. 21 arrest of Buehler and an accomplice by Sergeant Adam Johnson. Officers initially charged Buehler with interfering with public duties (including, among other charges, harassment of a public servant, for allegedly spitting on Oborski) in all four instances. The degree to which Buehler was interfering with their efforts remains subjective. Indisputable is the fact that, in all four cases, he was filming the officers at work.
Buehler was initially no-billed on all charges, though a grand jury did indict him in all four instances for failure to obey a lawful order, a class C misdemeanor. He was acquitted on charges relevant to the NYE arrest in late October. On Jan. 2, a municipal court judge accepted the state’s motion to dismiss charges from the Aug. 24 run-in. Last week, on Thursday, Feb. 19, another municipal court judge dismissed charges from the final two arrests, giving Buehler a clean slate for all four incidents. Buehler told the Chronicle Thursday afternoon that he was excited to turn his focus solely toward the civil trial. One day later, he learned that there would be no trial, for now.
The dismissal of the suit – which names Oborski, Snider, Berry, Johnson – was not explicitly the opinion of Judge Lane, who noted in his Friday order that his ruling conformed with the precedent set by the 5th Circuit Court of Appeals, which has ruled in the past that an officer has qualified immunity from civil rights liability if a grand jury determines that the arrest might have been based on probable cause – no matter what happened at the original arrest.
Making matters more contentious, Lane wrote, is that “other circuits have agreed with Buehler’s contention that a grand jury indictment post-arrest does not break the chain of causation.” The 2nd Circuit ruled in 2006 that “presumption of probable cause arising from indictment ‘is totally misplaced’” when applied to false arrest, unlawful imprisonment, and unreasonable search and seizure actions, just as the 8th Circuit concluded in 1993 that a grand jury’s indictment for obstructing the work of a law enforcement officer does not insulate officers from liability. The 11th Circuit arrived at the same conclusion in 1999.
Chief Acevedo issued a statement in response to the ruling on Friday: “We are pleased with the court’s decision in this case and we continue to support citizens who wish to film police activity in a legal manner without interfering in our officers’ activities or refusing to comply with lawful orders. Proof of our commitment to this philosophy can be found in the large number of videos covering our officers’ actions that are posted on social media sites.”
Both Buehler and his attorney Daphne Silverman told the Chronicle Saturday morning that they had anticipated Lane’s ruling for a good while and appreciated the fact that the judge issued the ruling before they went into collective “working-around-the-clock” mode to properly prepare for what would have been a March 2 hearing. They maintain that Thursday’s dismissal of Buehler’s outstanding misdemeanor charges had no effect on the timing of Lane’s decision.
Buehler and Silverman also said that they plan to appeal the ruling, and hope that the U.S. Supreme Court will ultimately hear the case. They concede that an outcome is not likely this year, and that it could take several years before the Supreme Court decides whether to take a look.
“We’re in this for the long haul,” said Buehler. “And we’re hopeful that it will eventually set a precedent that will prevent people from losing their right to hold the government and police accountable just because the prosecution convinces the grand jury to indict the individual on a bogus misdemeanor that the prosecution can’t even win.”