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 obscene gestures body worn cameras and the Fourth Amendment and is brought To Us by James Freeman's Channel be sure to check out the description below and give them the credit that they deserve in a video posted on May 28 2022 Corporal Michael pritch of the Little Egg Harbor Police Department in Ocean County New Jersey stopped his vehicle and approached a young man who was walking on the side of the road after the man who we will refer to as Mr Walker gave the finger to Corporal pritch the interaction was captured on Corporal pritch's body-worn camera what what's your problem what why are you giving me the finger I'm walking away huh am I pretty good why are you giving me am I free to go no reason why are you giving me the finger what's your problem am I free to go no what do you have a problem no do you have a problem no you don't have problems I can leave why are you giving me the finger when you're walking huh come here get over here what get over here is that a lawful order yeah for what reason because you give me the finger that's legal no it isn't says who says it all pull up the law huh pull up the law what's your name what's the love what's your name what's your name Corporal pritch claims that it is illegal to give him the finger and therefore he can lawfully detain Mr Walker for doing so as we have discussed before on ATA the Supreme Court held in the 1971 case of Cohen versus California that quote absent a more particularized and compelling reason for its actions the state may not consistently with the first and 14th amendments make the simple public display here involved at this single four-letter expletive a criminal offense likewise as the Supreme Court explained in the 1989 case of Texas versus Johnson while quote the First Amendment literally forbids the the abridgement only of speech its protection does not end at the spoken or written word conduct may be sufficiently imbued with elements of communication to fall within the scope of the first and 14th amendments the court also stated that quote in deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play we have asked whether an intent to convey a particularized message was present and whether the likelihood was great that the message would be understood by those who viewed it although the Supreme Court is not ruled specifically as to whether raising a middle finger constitutes protected speech the gesture nearly inarguably satisfies the test for expressive conduct outlined in Texas versus Johnson and courts that have reviewed the issue have generally concluded that it is protected speech in the 2006 case of Corey vs Nissan the U.S District Court in the Western District of Pennsylvania which is in the same federal circuit as New Jersey concluded that quote the weight of federal Authority establishes that directing the middle finger at a police officer is protected expression under the First Amendment absent some particularized showing that the gesture in the specific factual context constitutes fighting words or is otherwise illegal according to section 2C 33-2 quote a person is guilty of a petty disorderly person's offense if in a public place and with purpose to offend the sensibilities of a hearer or in Reckless disregard of the probability of so doing he addresses unreasonably loud and offensively coarse or abusive language given the circumstances of the person present and the setting of the utterance to any person present in the 2022 case of Morales versus Maxwell the U.S District Court for the District of New Jersey held that an individual could not be convicted of disorderly conduct under this statute for shouting profanities at a police officer because quote under long-standing precedent the statute violates the first amendment when applied to language short of that which would incite the hearer to immediate violence and the profanities he shouted at the officer quote by themselves do not constitute fighting words that would provide probable cause for arrest under the disorderly person statute given this precedent it is highly likely that a court reviewing this situation would determine that Mr Walker's use of the middle finger was protected speech and that he could not be arrested under the disorderly conduct statute for directing the gesture at corporal pritch [Music] whatever what come here I'm afraid of you come here get over here get over here I'm not doing anything illegal yeah you are you just cursed me off that's not a crime yes it is says who says me says who turn around come on bro yes it is no it's not why you curse me it's not a crime what's your name it's not a crime what's your name Corporal pritch grabs Mr Walker and holds him with his hands behind his back when Mr Walker starts screaming for help Corporal pritch turns off his body worn camera and does not turn it back on until backup arrives under section 40a 14-118.3 of the New Jersey statutes every uniformed law enforcement officer is required to wear a body-worn camera that electronically records audio and video while acting in the performance of their official duties with limited exceptions additionally section 40a 14-118.5 states that quote the video and audio recording functions of a body-worn camera shall be activated whenever the officer is responding to a call for service or at the initiation of any other law enforcement or investigative encounter between an officer and a member of the public and that quote the body worn camera shall remain activated until the encounter has fully concluded and the officer leaves the scene likewise the statute only allows for the deactivation of a body-worn camera during an encounter quote when a civilian conversing with the officer requests that the device be deactivated where it reasonably appears that the person will not provide information or otherwise cooperate with the officer unless that request is respected when a person other than an arrestee is seeking Emergency Medical Services for themselves or another person and requests that the device be deactivated while the officer is participating in a discussion pertaining to criminal investigation strategy and planning or when specifically authorized to do so by an assistant prosecutor or an assistant or Deputy attorney general for good and sufficient cause these legal requirements are expanded upon in the body worn camera policy issued by the Office of the Attorney General for the state of New Jersey and it is clear that Corporal pritch's actions and turning off the body worn camera violated both state law and the Attorney General's policy right now because you're acting straight just what that's not legal it is legal he's allowed to detain you into anything performances so what am I doing though what am I doing that made him detain me what legal right I wrote by him twice he shot me the finger so I turned around say what you are is that a crime problems that's not a crime that's not a crime he's looking at you because he's like what the [ __ ] you want me to do because there's it's not a crime I know my rights who are you I don't have to say any of that um you do it for me to change for what reason what legal reason am I being detained for where are you coming from and where what legal reason am I being detained for I need to know that legally I need to know that patrolman Michael James LaMontagne arrives on the scene and informs Mr Walker that he is required to identify himself because he is being detained even though he cannot provide a legal justification for the detention however New Jersey does not have a stop and identify statute that specifically requires Mr Walker to identify himself and courts have determined that New Jersey's obstruction statute cannot be applied to individuals who refuse to identify themselves to police officers when they are not suspected of committing a motor vehicle defense under section 2C 29-1 of the New Jersey Code quote a person commits an offense if he purposely obstructs impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from lawfully performing an official function by means of flight intimidation Force violence or physical interference or obstacle or by means of any independently unlawful act although the statute does not require that an individual physically obstruct an officer to be convicted of obstruction in the 2020 case of Bryant versus Camden County Police Department the superior court of the New Jersey Appellate Division held that an individual quote had the right to refuse to turn over his identification when an officer demanded it during a police investigation that was not initiated on the belief that the individual had violated a motor vehicle law and that he could not be arrested for refusing to identify himself because he quote committed no unlawful act to impede the investigation therefore the court would very likely determine that patrolman lemontang was incorrect In His assertion that Mr Walker was required to identify himself why are you shooting me to think why are you is that illegal yes it is when you were cursing in public you are causing a public disturbance you're being a nuisance to the public in what way when he was driving past well I'd like to see you guys proven of course it's called it's called calls from a public disturbance not saying you're being charged with anything at that point I'm making sure you're okay that's so funny like you're not here for my safety you're not trying to protect how do you know you're welcome and you're you're cursing and you're flipping the bird once at him I gave him the finger once that will not hold up do you know him do you know him it's not your business I believe the fifth what's the first amendment for okay first amendment is for your freedom of speech okay okay what does that have to do with with was I making it just action am I calling for an accident to be done against you do you understand listen listen listen listen it's it's Behavior that's out of the order clearly if you stopped all the way back there I'm assuming you guys were back there and you just continue a bit further just continue to walk I wasn't running I was walking once you use an order for you to stop you're supposed to stop I did stop when you virtually said it but I was asking is it illegal yeah because I kept walking because you weren't you weren't pursuing at the first you only started pursuing because you got a little upset we're here at this point now okay you've brought the attention to yourself that was the public alone well I'd like to do you legally because I'm not charging you with anything well I want to note from your perspective attention I believe I don't understand what the point of this is I'm walking that's what I'm doing okay it's the fourth amendment to be allowed to walk without seizures or anything like that are you sure that's Fourth Amendment you sure about money on it you sure that's what appointment it gives you the right to walk without seizure what's going to be seizured while you're walking my body my person idiot you were about to you he said I was going to be under arrest you said you were disappointed in the arrest so now what happened so so now what happened he just admitted he gives you a lawful order to stop and you do it wasn't all Florida though and you do not it legally was not a lawful do not stop then that becomes a criminal offense and then yes you can be put under but it's not a lawful order then I take it to court and then he'd get sued and I get a million of Damages I'd be rich is that what you want it may be what happens the trollman the long Tang claims that the fourth amendment was not implicated in this interaction because no seizure occurred and Mr Walker was not placed under arrest however as the Supreme Court explained in the infamous 1968 case of Terry versus Ohio quote the Fourth Amendment provides that the right of the people to be secure in their persons houses papers and effects against unreasonable searches and seizures shall not be violated this inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret Affairs for as this court has always recognized no right is held more sacred or is more carefully guarded by the common law than the right of every individual to The Possession and control of his own person free from all restraint or interference of others unless by clear and unquestionable authority of law based on this principle the court determined that quote it is quite plain that the Fourth Amendment governs seizures of the person which do not eventuate in a trip to the Station House and prosecution for Crime arrests in traditional terminology it must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away he has seized that person building on this decision the Supreme Court held in the 1980 case of United States versus Mendenhall that quote a person has been seized within the meaning of the Fourth Amendment only if in view of all of the circumstances surrounding the incident a reasonable person would have believed that he was not free to leave examples of circumstances that might indicate a seizure even where the person did not attempt to leave would be the threatening presence of several officers the display of a weapon by an officer some physical touching of the person of the citizen or the use of language or tone of voice indicating that compliance with the officer's request might be compelled additionally in the 1991 case of California versus hodari D the Supreme Court clarified that quote to constitute a seizure of the person just as to constitute an arrest the quintessential seizure of the person under Fourth Amendment jurisprudence there must be either the application of physical Force however slight or where that is absent submission to an officer's show of authority to restrain the subject's Liberty here it is undeniable that Mr Walker was seized when Corporal pritch initiated physical contact with Mr Walker to prevent him from leaving however it is also highly probable that a court would conclude Mr Walker was seized for Fourth Amendment purposes when Corporal pritch first ordered him to stop and he complied it may be what you what's going to happen it may not be what happens okay okay no because at this point for what reason we're detained okay because he told yourself he didn't stop so therefore you need to identify yourself as a part of the investigation so what is your name okay I'm gonna need all of your badge numbers I will give you everything written down on your card what if I could give you if you have an idea am I okay I'll take it to court because this is still this is still entertainment are you a juvenile [Music] so what does that make you not a pig you see this is illegal you'll legally have to prove that I was a nuisance when you're standing how would you do that how would you do that I just wanted camera systems okay so when he goes by in the car okay and he sees you tell me what you're doing and what was I doing me there and what part of that caused the disturbance that's what I'm trying to legally understand I don't understand is that a body camera that's what it is perfect perfect Tuckerton doesn't have them you know that targeting's been on back order for a month because I have a lawsuit against them that's why and I wish they'd have body cams I would love if they had body cream it's frozen right it's from it's for everybody that's involved in the situation okay appreciate it if you have any problems or anything and you want to come down you want to talk to somebody our supervisors are always there as well okay well I'm going to take a lawsuit so who would I press criminal charges against for what you're gonna have to you're going to have to call you're gonna have to call and figure that out with a lawyer you have to file a complaint with the courts got it okay and then you can go from there if you want to see if you can press charges and whatnot if you're violated your rights appreciate it okay shut the [ __ ] up stay under the roadway you're free after patrolman Lamont Tang informs Mr Walker that he was free to go Mr Walker directed A profanity at both of the officers and walked away without any further incident very little information is available about this interaction and although Mr Walker informed the officers of his intent to pursue legal action it is unknown whether he has taken any steps to do so overall Corporal pritch and patrolman Lamont Tang get an F for acting with total disregard to Mr Walker's first amendment and Fourth Amendment rights detaining him without Reasonable Suspicion to do so and blatantly misstating the law multiple times throughout the encounter the officers repeatedly demonstrated their complete ignorance of some of the most essential legal principles that apply to Law Enforcement Officers by falsely claiming that it was illegal for Mr Walker to use profanity and display his middle finger that Mr Walker was legally required to identify himself and that their illegal Detention of Mr Walker did not violate the Fourth Amendment or even implicated because he was not formally arrested while both officers could certainly benefit from additional training it is also crucial to discuss the fact that Corporal pritch chose to turn off his body camera when Mr Walker started screaming for help despite the fact that it clearly violated both state law and policy although Mr Walker did not appear to be injured when patrolman lemongtang arrived and the body camera was reactivated it is immensely troubling that Corporal pritch intentionally and illegally prevented his interaction with Mr Walker during this time from being recorded and this sort of deliberate action demonstrates more than mere ignorance of the law that could potentially be corrected through training Mr Walker gets an A minus because although he provided the officers with his identification when he was not legally required to do so he demonstrated a strong understanding of his constitutional rights stood up to the officers when they repeatedly misstated the law and even attempted to educate the officers about the constitutional rights of citizens when they repeatedly revealed their ignorance while Mr Walker maintained a hostile demeanor with the officers and used some inflammatory language he was well within his first amendment rights do so and I would encourage him to follow through on his intentions of filing a lawsuit against these officers for their illegal and unconstitutional actions I commend Mr Walker for taking an interest in constitutional rights at such a young age and this interaction perfectly demonstrates how useful this knowledge can be for young adults across the country 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]