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Federal Appeals Court Affirms First Amendment Right To Criticize Cops

A federal appeals court affirmed the First Amendment right of citizens to criticize police officers and ruled officers in Minnesota are not immune from a lawsuit alleging rights violations.

The Eighth Circuit appeals court found that Shawn McMenomy, Henry Cho, and Alex Eckstein lacked “probable cause” to arrest Brian Hoyland. They were not entitled to “qualified immunity” because they did not act constitutionally.

According to the decision [PDF], Minnesota police “received reports of drag racing in the early hours of May 8, 2013.” McMenomy and Eckstein were in separate squad cars.

McMenomy saw a Corvette driving away from the alleged scene and did a U-turn to follow the vehicle. It belonged to Mark Illetschko, “who had no outstanding warrants.” When McMenomy chose to follow this car, no traffic violations occurred yet. But McMenomy claims the tires of the car “partially” crossed the “road’s center dividing line.”

With emergency lights activated, McMenomy “chased” or followed Illetschko in a Corvette that never went faster than 40 miles per hour until it pulled into the driveway of Hoyland’s home.

McMenomy ordered Illetschko to remain in the vehicle. He pulled his weapon and ordered Illetschko to exit. Illetschko was arrested and obeyed orders just before two more officers, Henry Cho and Ryan Coughlin, arrived.

Christina Hoyland then was ordered to exit the vehicle with hands in the air. She followed orders but directed “verbal criticism—including profanity”—at officers, including a message that she had paralysis in one of her legs and could not easily walk backward.

The commotion woke Brian Hoyland up. He moved his children to the back of the house and grabbed his cell phone to record what was unfolding. Eventually, he left the inside of his house because he thought an officer might have yelled “shoot” or “shooting.”

He turned on a porch light, walked out his front door, and held up his phone to record officers. McMenomy and Cho became concerned with Hoyland and shouted at him to, “Drop the camera!” They wanted him to go back inside.

Hoyland, who once was a military police officer, shouted, “You are in my yard!” and “What is this, a DWI stop, and you guys are doing this? Are you kidding me?” He additionally tried to inform officers his wife was handicapped and demanded that the officers do their jobs ‘the right way.’

Ordered to “stay inside” again, officers arrested him after he remained outside. “About thirty seconds of time elapsed between Hoyland’s emergence from his house into the doorway and McMenomy’s pronouncement that he was under arrest.” Hoyland complied and never resisted arrest.

The appeals court decision notes, “Throughout this encounter, Hoyland never left the area around his front door, failing to ever come closer than 30-40 feet from the officers. He never told his wife or Illetschko to disobey the officers’ commands. He never ran away or resisted the officers as he himself was arrested. Finally, he never physically intervened, and never attempted to physically intervene, in the arrest of anyone.”

Hoyland was issued a “citation for obstruction of legal process,” but he convinced a judge in a county court to throw out this charge.

“It is clear from the video recording obtained from [Hoyland’s] cell phone that [Hoyland] exited his residence with the sole intent to inform officers his wife was disabled and unable to comply with their commands, and to record the incident for possible future use as evidence if the officers engaged in any improper conduct,” a county judge contended.

The judge additionally determined, “[Hoyland’s] conduct amounted to nothing more than a fleeting interruption of the officers’ performance of their duties without any intent to cause such an interruption.”

Hoyland filed charges of violations of his First and Fourth Amendment rights soon after this decision, and he asserted that he was “maliciously” prosecuted. But the officers claimed “qualified immunity.”

The “verbal criticism” at issue included, “She is handicapped, I am going to sue you,” and, “Get over here and do your jobs the right way.” He also stated, “She doesn’t have a weapon.”

As the appeals court declared, Hoyland “did not instruct his wife to resist arrest, and he did not resist arrest himself. Under these circumstances, the belief that Hoyland had committed the crime of obstruction was not only mistaken, but objectively unreasonable.”

Under Minnesota law, “Obstruction must be either physical obstruction or verbal conduct, such as fighting words, that has the effect of physically obstructing officers in the performance of their duties. Nowhere in Minnesota law does mere physical presence at a distance constitute obstruction.”

“Arresting Hoyland for obstruction due to his continued presence in his doorway was unreasonable under state law,” according to the appeals court.

As articulated in a similar case that went before the Supreme Court, “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principle characteristics by which we distinguish a free nation from a police state.”

Hoyland’s claims against the officers will now go before a jury, unless the officers appeal this case and attempt to have it heard by the Supreme Court.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."