A Tennessee 1st Amendment Auditor Is Suing After Videos of Police Led to a Predawn Arrest Raid
· Reason
A Tennessee man is suing a local police department for allegedly violating his First Amendment rights after videos he uploaded of an officer speeding led to the man being arrested in a predawn raid.
Visit michezonews.co.za for more information.
The Foundation for Individual Rights and Expression (FIRE), a free speech advocacy group, announced Tuesday that it is representing Joshua Gibbons in a federal civil rights lawsuit against the city of Kingsport, Tennessee, the Kingsport police chief, and several individual officers.
Kingsport officers arrested Gibbons, who frequently films Kingsport officers and uploads the videos to his YouTube channel, in October 2022 on charges of disorderly conduct, speeding, and using a cellphone while driving. However, after nearly four years, all the charges were tossed out. Gibbons' lawsuit alleges that his recordings and criticism of the department were motivating factors in Kingsport officers' decision to arrest him.
"They tried to intimidate me, but I'm not backing down," Gibbons said in a FIRE press release. "I can't let this injustice stand, because my family doesn't feel safe anymore. There's no coming back from that raid on our home. They sent eight heavily armed officers to arrest me because I embarrassed them."
On October 9, 2022, Gibbons recorded a Kingsport police sergeant who appeared to be speeding in a police SUV without his emergency lights activated.
Gibbons followed the officer to a fast-food restaurant, where the officer was waiting in the drive-thru for his order. Gibbons got out of his car and approached the officer's SUV while recording on his cellphone and demanded his name and badge number. When the officer refused, Gibbons called him a "piece of shit" and "full of shit", then left. The entire interaction took roughly one minute.
On October 15, 2022, Gibbons uploaded another video of a Kingsport officer flipping him off. The following morning a member of the public submitted a complaint about the officer in the video, according to Gibbons' lawsuit. It was then that the Kingsport Police Department became aware of his other recent videos.
On October 17, a Kingsport detective obtained a warrant for Gibbons' arrest from a court clerk. The detective wrote in an arrest affidavit that Gibbons' video showed him operating a cellphone while driving, as well as traveling 53 miles per hour in a 45-mile-per-hour zone. Additionally, Gibbons' yelling at the fast-food drive-thru was "disturbing the lawful conduct of the Officer and other patrons that are in the drive-thru."
At 5 a.m. the next morning, eight armed officers arrived at Gibbons' house. The officers allegedly rousted Gibbons out of bed half-dressed and arrested him in front of his elderly mother and daughter.
Gibbons is part of a growing trend of independent reporters, livestreamers, and self-described First Amendment "auditors" who film police and government employees, both to hold them accountable and to test their compliance with the Constitution.
The First Amendment right to film the police in public has been upheld by all nine federal circuit courts that have considered the issue. Likewise, there's a wide body of case law upholding the First Amendment right to criticize police officers, including through vulgar words, gestures, or other expressive activity.
In a press release, FIRE attorney Adam Steinbaugh said the Kingsport Police Department's "wildly disproportionate response is Exhibit A in how police should not respond to criticism."
"The First Amendment protects the right to film and criticize police officers without having to worry that you're going to wake up in handcuffs," Steinbaugh continued. "The Kingsport Police Department needs to hear that message loud and clear."
Gibbons first filed his civil lawsuit in 2023 but waited until the criminal charges against him were dismissed before he went public.
That ended up taking a while.
At a 2023 bench trial, a county judge acquitted Gibbons of the speeding and cellphone charges but found him guilty of disorderly conduct.
Gibbons appealed to a higher court for a new jury trial, which didn't take place until 2025.
At his new trial, the jury was instructed that Tennessee's disorderly conduct statute applies when someone "in a public place and with intent to cause public annoyance or alarm…creates a hazardous or physically offensive condition by any act that serves no legitimate purpose."
Although none of the other people waiting in the drive-thru whom prosecutors called as witnesses testified that Gibbons did anything other than momentarily distract them, prosecutors argued that "just hearing the encounter, and the actual physical looking in the mirror" diverted "attention from whatever they were doing," according to court records.
The jury convicted Gibbons of disorderly conduct.
Gibbons filed an appeal, and this June the Tennessee Court of Criminal Appeals ruled that the evidence against him was insufficient to support his conviction.
"The prosecutor's argument to the trial court that a person's momentary distraction is enough to sustain the charge is incorrect," Judge Matthew J. Wilson wrote.
"In this case, no evidence established that [Gibbons'] yelling prevented any person
from doing any lawful activity," Wilson wrote. "[Gibbons] did not impede progress in the drive-through. All three witnesses for the State testified that the brief encounter did not prevent them from placing their orders, getting their food, and moving on with their plans."
Gibbons' offensive statements were in fact on the milder end of invective that state and federal courts have ruled is constitutionally protected speech. For example, in 2022, the U.S. Court of Appeals for the 6th Circuit ruled that police had no probable cause to arrest an Ohio man who wore a T-shirt that read "fuck the police" to a county fair. Many of these rulings draw from a 1987 Supreme Court case that struck down a Houston ordinance prohibiting verbal abuse of police officers, finding that "the freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state."
The Kingsport Police Department did not immediately respond to a request for comment.
The post A Tennessee 1st Amendment Auditor Is Suing After Videos of Police Led to a Predawn Arrest Raid appeared first on Reason Magazine.