foreign [Music] welcome to audit the audits where we sort out the who and what and the right and wrong of police interactions this episode covers freedom of the press resisting and trespassing and is brought To Us by WSYX ABC 6's Channel be sure to check out the description below and give them the credit that they deserve on February 9th 2023 Ohio Governor Mike dewine held a press conference at an elementary school in East Palestine Ohio to update journalists on developments involving the derailment of a train carrying toxic chemicals news Nation correspondent Evan Lambert was filming a pre-scheduled live update in the back of the gymnasium where the press conference was being held at the same time that governor dewine was speaking at the front of the gymnasium when two members of the Ohio State Highway Patrol and the commander of the Ohio National Guard Major General John Harris Jr told Mr Lambert to stop the broadcast because he was allegedly quote too loud the interaction that followed was captured by the body camera of one of the highway patrol Troopers although there is no sound recording available for the first portion of the interaction the footage shows Mr Lambert and Major General Harris arguing and then Major General Harris pushing Mr Lambert Mr Lambert then claims that Major General Harris assaulted him after the incident Major General Harris claims he felt threatened stating that quote he is a much larger person than I am at that point I was convinced he was prepared to do harm to me I instinctively put my hands on his chest to keep him from bumping into me which I felt was inevitable if I had not protected myself I immediately removed my hands when there was space between us we were in contact for less than a second however it should be noted that this explanation appears to conflict with the body camera footage which shows Major General Harris as the aggressor and does not show any physically aggressive behavior by Mr Lambert um sir can we talk outside please escalated with me I am doing my job I've discovered by the First Amendment Sheriff Brian McLaughlin of the Columbiana County Sheriff's office orders Mr Lambert to leave and Mr Lambert explains that he's trying to listen to The Press briefing and do his job which is covered by the first amendment in addition to protecting freedom of speech the First Amendment states that quote Congress shall make no law abridging the freedom of the press this Clause has been interpreted to not only protect the right of the press to publish the news but also the right to gather and obtain such newsworthy information in the 1972 case of brandsburg versus Hayes the Supreme Court recognized that quote news Gathering is not without its first amendment protections because quote without some protection for seeking out the news freedom of the press could be eviscerated however the First Amendment does not Grant the Press unlimited access to information and the court went on to explain that quote the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability and that quote otherwise valid laws serving substantial public interests may be in 4 first against the press as against others despite the possible burden that may be imposed likewise the court noted that quote it has generally been held that the First Amendment does not guarantee to press a constitutional right of special access to information not available to the public generally for this reason elected officials are not required to hold press conferences or otherwise disseminate information to journalists and courts have consistently held that journalists can be excluded from private news Gathering opportunities such as invite only press events and exclusive interviews of the government officials discretion however when a government official holds a press conference that's open to all members of the press courts have generally determined that a specific journalist or news organization cannot be denied access unless the exclusion is motivated by a compelling government interest for instance in the 1977 case of American Broadcasting companies versus Cuomo the second Circuit Court of Appeals held that ABC could not be excluded from post-election activities at Campaign Headquarters where other members of the press were granted access and in the 1977 case of Cheryl vs Knight the DC Circuit Court of Appeals concluded that where White House Press facilities had been made publicly available as a source of information for reporters the White House could not exclude a reporter arbitrarily or for less than compelling reasons relying in part on these two cases the United States district court and the Northern District of Ohio determined in the 2004 case of Raycom National Inc vs Campbell that reporters from the w-o-i-o television station were not likely to prove a First Amendment violation when they allege that the mayor of Cleveland prohibited City officials and employees from speaking with or providing information to reporters outside of formal records requests in this case the court drew a clear distinction between the facts in that case and this situation noting that the mayor was not denying the reporter's access to information generally available to other members of the media or prohibiting them from attending press conferences and ultimately holding that quote because wo IO is not being denied access to information available to the public generally the court concludes that it is unlikely to succeed on the merits of its first amendment claim in this situation Mr Lambert's reporting did not appear to be a disruption as Governor dewine later stated that he did not see the incident but only heard the so-called disagreement that ensued after the Troopers and Major General Harris approached Mr Lambert in his statement governor dewine also recognized that reporters have quote every right to report during press briefings Mr Lambert would have a strong argument that his first amendment rights were violated by his exclusion from the press conference for simply doing his job there you have it you're going to stand outside sir because you can't talk to people about doing their jobs oh my God I cannot believe this this is what it's like to be a black reporter yeah but I'm so sorry Evan I'm sorry thank you Sia I love her sir after Mr Lambert refuses to leave the press conference East Palestine detective Daniel howder and Columbiana County chief Deputy Jennifer Tucker informed him that he is under arrest and when he appears to slightly pull away from the officers they force him to the ground and handcuff him according to section 2921.33 of the Ohio Revised Code quote no person recklessly or by force shall resist or interfere with a lawful arrest of the person in the 1998 case of State versus Barker the Sixth District Court of Appeals of Ohio held that a criminal defendant did not have to use physical Force to resist arrest in order to be convicted of a violation of this Statute in reaching this conclusion the court relied on the committee comment accompanying the statue which stated that quote the offense may be committed through the use of force or recklessly by any means such as quote-unquote going limb given this precedent it is likely that a court would conclude that pulling away from officers attempting to conduct an arrest also constitutes resisting arrest under this statute however as the court also noted in the Barker case quote Ohio courts have consistently held that one of the required elements of this crime is a lawful arrest and quote an arrest is lawful if the officer had probable cause to believe a crime was committed by the defendant even if the defendant is ultimately found not guilty of the crime therefore if the underlying arrest is not supported by probable cause an individual cannot be convicted of resisting arrests under Ohio law we will discuss the issue of whether the officers had the probable cause necessary to arrest Mr Lambert later in this episode but if a court determined that the arrest was lawful it is possible that Mr Lambert could be convicted of resisting arrest even if he was acquitted of the trespassing charge can you please listen please we were up there we had a live shot scheduled to record at 5 15. okay that's locked in stone so Coincidence of all coincidence the governor literally walks out at 5 50. it's the worst possible timing in the world okay but we can there's nothing that we can do about that he's he's committed to doing his live show he's got people talking to him he doesn't know about whether he needs to talk about it let me let me let me let me stop you from yeah let me please let me stop you I'm just I'm so reason why I understand that the reason why he is where he is he was told to leave he refused to leave okay then the building superintendent comes over and says I don't want you here okay I can't speak to that when discussing the situation with a member of Mr Lambert's news team Sheriff McLaughlin argues that Mr Lambert was arrested for trespassing because he refused to leave the building after both the building superintendent and law enforcement told him to leave according to section 2911.21 of the Ohio Revised Code quote no person without privilege to do so shall knowingly enter or remain on the land or premises of another the statute also clarifies that quote it is no defense to a charge under this section that the land or premises involved was owned controlled or in custody of a public agency and explains that the term land or premises quote includes any land Building structure or place belonging to controlled by or in custody of another and any separate enclosure or room or portion thereof in this instance it is clear that Mr Lambert remained on the premises of another after he was asked to leave but the issue of whether he did so quote without privilege to do so is far less straightforward forward under section 2901.01 of the Ohio Revised Code privilege means an immunity license or right conferred by law bestowed by Express or implied Grant arising out of status position office or relationship or growing out of necessity as the 12th District Court of Appeals of Ohio explained in the 2022 case of State versus Dean quote privilege is the distinguishing characteristic between unlawful trespass and lawful presence on the land or premises of another although a citizen is generally privileged to enter public property that privilege can be revoked by an individual with the authority to do so and that citizen can be trespassed from the property the case law surrounding the constitutionality of individuals being trespassed from public property is complex and in this instance the fact that Mr Lambert was a journalist attending a press conference further complicates the issue as we discussed earlier in this episode Mr Lambert has a strong argument that he could not be excluded from a public press conference for engaging and routine reporting practices particularly because his broadcast did not appear to be disrupting the press conference when fighting a trespassing charge stemming from this interaction in addition to his argument that he was privileged to be on the property for the press conference as a member of the press and could not be arbitrarily excluded Mr Lambert could also make an argument that his removal and ultimately his arrest were unlawful retaliation of his first amendment speech as he was not asked to leave until after he exchanged unpleasant words with Major General Harris and publicly called him out for laying his hands on him I thought it might just be able to give you some insight and I understand I understand you guys have a job but but when you're told to step out understand you can get to the point where the building superintendent's coming over and saying you need to leave Columbia County jail yes okay after Mr Lambert was arrested he spent about five hours in jail before being released on a 750 dollar Bond local prosecutors filed charges against Mr Lambert for resisting arrest and Criminal Trespass and then requested that Ohio attorney general Dave yost's office take over the case court records show that a special prosecutor was appointed and that both charges were dropped at the prosecutor's request on February 16 2023 after determining that the charges should be dropped attorney general Yost issued a statement announcing that quote my office has reviewed the relevant video and documentary evidence and is dismissing the charges against Evan Lambert as unsupported by sufficient evidence while journalists could conceivably be subject to criminal charges for trespassing in some situations this incident is not one of them the reporter was lawfully present at a press conference called by the governor of the state his conduct was consistent with the purpose of the event and his role as a reporter the Attorney General also stated that quote regardless of the intent arresting a journalist reporting at a press conference is is a serious matter Ohio protects a free press under its Constitution and state officials should remember to exercise a heightened level of restraint in using arrest Powers although the charges against Mr Lambert have been dropped no disciplinary action has been announced for any of the officers involved including Major General Harris it is unclear whether Mr Lambert or news Nation will be pursuing legal action against any of the parties involved overall the many officers involved get an F for likely violating Mr Lambert's First Amendment rights by arbitrarily excluding him from a public press conference arresting him for trespassing when he refused to surrender those rights and using unnecessary Force against him both during his arrest and during his initial disagreement with Major General Harris while there is certainly an argument that Mr Lambert could have been removed from the press conference for actually causing a disturbance he was not being disruptive by simply reporting on the briefing in line with standard journalistic practices in fact any disruption that occurred was actually caused by Major General Harris who for some reason seemed to take personal offense to Mr Lambert's conduct and chose to escalate the situation to a verbal and physical altercation as attorney general Yost noted in his statement it's essential for officers to show a sufficient level of respect for the First Amendment rights of journalists and exercise restraint and discretion when dealing with members of the press the officers involved in this interaction clearly failed to do this and I hope that other officers learn from this encounter and avoid making similar mistakes in the future Mr Lambert gets an a because although he technically may have resisted arrest by pulling away from the officers it was likely an unlawful arrest throughout the encounter Mr Lambert stood firm in his first amendment rights as a journalist called out Major General Harris for pushing him and fought the criminal charges against him in court this encounter demonstrates the importance of citizens and journalists alike knowing their constitutional rights and refusing to surrender them and I commend Mr Lambert for his courage and his Devotion to his profession let us know if there is an interaction or legal topic you would like us to discuss in the comments below thank you for watching and don't forget to check out my second channel for even more police interaction content [Music] foreign [Music]