Cultivated Compendium

I examined a case for the Connecticut Law Tribune that could test the legal contours of the right to use drones in newsgathering:

A Connecticut television photographer's federal lawsuit could shed some legal light on how far journalists can go to record police activity and what rights they might have to use drones to gather news.

Photographer Pedro Rivera, who works on an on-call basis for WFSB-TV, took his remote-controlled drone — which weighs 2 1/2-pounds and is propelled by four rotors — to the scene of a serious motor vehicle accident in Hartford on Feb. 1, 2014. While flying the camera-carrying drone 150 feet above the accident scene and recording police activity, Rivera, in court documents, says he personally was "standing in a public place, operating his device in public space, observing events that were in plain view."

Nevertheless, he says uniformed members of the Hartford Police Department surrounded him, demanded that he stop operating his drone over the accident scene and told him to leave the area. According to Rivera's court filings, the question at hand is not whether he simply has "the ability to operate the drone somewhere; it is the ability to operate the drone around newsworthy events."

While at the Feb. 1 accident, Rivera was not working for WFSB, but he had provided drone footage to the station in the past, according to court papers. He argues that the police actions violated his Fourth Amendment right to be free from unreasonable seizures and his First Amendment right to freedom of expression. The lawsuit names Hartford police Lt. Brian Foley and Sgt. Edward Yergeau, who are being sued in their individual capacities.

According to the lawsuit, Foley contacted one of Rivera's supervisors at WFSB to complain that the photographer had interfered with the accident investigation and had compromised the crime scene's integrity. As a result, Rivera says he was suspended from work for at least one week.

In the most recent round of briefing in the case, Nathalie Feola-Guerrieri, senior assistant corporation counsel for Hartford, argued in court papers filed July 31 that the photographer's complaint should be dismissed.

For one thing, she wrote, "there is no factual indication that it was plaintiff's recording of police activity, rather than plaintiff's intrusion with his equipment into the denoted crime scene area where no other members of the public were allowed to enter, ... that motivated Foley's contact with his employer."

Further, she stated, the two police officers have, as public officials, qualified immunity from any lawsuit stemming from their on-the-job decisions. While police are required to follow the law and not bar legal newsgathering, Feola-Guerrieri wrote there have been no decisions from the U.S. Supreme Court or the U.S Court of Appeals for the Second Circuit "that would support the existence of plaintiff's right to operate his drone equipment in and directly above the denoted crime scene area while an active investigation is being conducted."

Even if courts eventually recognize the right of journalists to use drones to record a crime scene, the Hartford officers shouldn't be punished retroactively for grounding Rivera's drone. In an interview, Feola-Guerrieri said that "it could very well be that it's perfectly OK for [Rivera to operate his drone above the accident scene]. It's undetermined at this point."

'Lawful Vantage Points'

The photographer's lawyer acknowledges that the U.S. Supreme Court has not directly addressed the right to record police activity but cites others federal court decisions supporting a right to record police activity. Lawful news gathering, including news gathering using drones, can be curbed only if police reasonably believe that journalists are interfering with law enforcement activity, Bethany attorney Norm Pattis said in court papers.

As a result, the individual police officers are not entitled to qualified immunity in this case because "the right to photograph the police from lawful vantage points … is established," Pattis wrote.

While Rivera and his lawyer acknowledged that municipal governments may not be sued solely for constitutionally questionable actions by employees, they said they can show the Hartford Police Department has a widespread policy aimed at stopping the public from recording police activity. The city's reply is that a single incident involving officers below the "policymaker level" does not mean the courts can infer the city has a policy to curb the public's and press's First Amendment rights to record police activity.

James Bergenn, a Shipman & Goowin attorney who co-chairs the Connecticut Bar Association's Media and the Law Section, said that, on one hand, drones are a non-intrusive way for the public to monitor police investigations because they operate in space law enforcement personnel aren't using.

On the other hand, Bergenn said that allowing drones to go into the airspace above crime scenes could lead to the public learning facts about an investigation that only the perpetrators would know. Investigators often want to keep such information out of the public limelight. The possession of investigative facts is a "truth detector, a truth insurer" for law enforcement, Bergenn said.

The right to use drones in newsgathering also implicates the Fifth Amendment right to due process, Bergenn said. The courts will have to balance the strict scrutiny given to Fourth and Fifth Amendment rights with the "need in an orderly society for law enforcement to be able to act unimpaired in response to dangers to public safety," Bergenn said.

U.S. District Judge Vanessa Bryant has not yet ruled on the motion to dismiss Rivera's complaint.

The Federal Aviation Administration is still developing regulations for use of drones in American airspace, including for journalistic purposes. According to USA Today, the FAA is supposed to have a plan in place for the unmanned devices to fly along with airplanes by September 2015, but the rulemaking process is lagging behind schedule.

In a recent piece for the Connecticut Law Tribune, I examined the aspects of the appellate process that mystify lawyers and litigants alike:

An appeal isn't just the second take on a legal dispute.

According to appellate court judges and practitioners alike, appellate practice in Connecticut requires a specialized form of advocacy that is not understood by all litigants who are representing themselves and even by lawyers who handle the occasional appeal.

Appellate Court Chief Judge Alexandra D. DiPentima said there is a major lack of understanding that the appellate courts are not retrying cases but "reviewing to see if there were any errors below."

"There are times we get very able trial lawyers in front of us arguing as if we are a jury," DiPentima said.

The trial court is like a referee down in the football stadium that can see the plays up close, said Brendon Levesque, a partner at Horton, Shields & Knox whose practice includes appellate law.

But the appellate courts are like the referees up in the booth. They have a "very, very high standard" for overturning the lower court's call, he said.

He has to explain to clients who want to retry their cases on appeal that it is not the function of the appellate courts.

Just like a great trial lawyer needs to know the rules of evidence, a great appellate lawyer needs to know the rules of civil procedure, said Linda Morkan, counsel at Robinson & Cole and cochair of the Connecticut Bar Association's appellate advocacy section (but spoke in her individual capacity).

DiPentima said the Judicial Branch is going to be updating a handbook to help the occasional appellate lawyer and to help pro se litigants understand that the rules on appeal are different from trial court rules.

The Connecticut Law Tribune recently examined what may be the most comment lament of litigants when they appeal their cases: "When will the court decide my case?" Between 2005 and 2010, the average time between oral argument and the publication of decisions in the Supreme Court was 157 days, according to the Judicial Branch. Over the next three years, the average was 158 days.

During the 2013-14 term, which is officially drawing toward an end, the Supreme Court seems to have issued opinions faster than in the recent past, according to the Law Tribune's analysis.

But the length of time it takes for cases to come out is not the only factor that mystifies parties and their lawyers about the appellate court process, judges and practitioners say.

One of the most frequent questions people ask are how cases wind their way through the Appellate Court and the Supreme Court, Chief Justice Chase Rogers and DiPentima said in a recent joint interview.

Cases come to the Supreme Court because the justices grant a petition for certiorari for reasons such as there is a split on a legal issue between the superior courts, Rogers said.

A panel of Appellate Court judges has the responsibility to see if some of the intermediate appellate court's cases would be more appropriate in the Supreme Court.

The chief justice also receives petitions for cases involving urgent matters of public interest, such as election cases, under Section 52-265a.

Section 52-265a cases and cases involving child protection get prioritized in being heard and decided, Rogers and DiPentima said.

Otherwise, cases get put on the list as they become ready and "we just go down the list," Rogers said.

In the Appellate Court, child protection cases are scheduled as soon as the briefs are done and even before they are docketed, DiPentima said.

There also are motions for transfer by the parties to come to the Supreme Court from the Appellate Court, according to the chief justice.

Both Morkan and Levesque said they would rather have their cases transferred to the Supreme Court, especially when it's a case the Supreme Court will likely take up because it involves an issue of first impression or a split of authority among the superior courts.

"It's an economics and efficiency decision," Levesque said.

The transfer of cases also means the Supreme Court, while bound by precedent, could change the law, but the Appellate Court can't, Morkan said.

"Our Supreme Court makes sure its docket is full and that alleviates some of the burdens and crowding at the Appellate Court," Morkan said.

Rogers and DiPentima in their respective courts make the decision on who authors a majority opinion. Both said workload is the primary factor in deciding which colleague will be assigned a case to write.

Both courts also hold their judicial conferences on cases after oral argument, the two court leaders said.

While some jurisdictions have the practice of holding judicial conferences before oral argument, Rogers is of the opinion that it makes more sense to hold the conferences afterward because "a lot can happen during oral argument."

Both Morkan and Levesque said the brief is the most important part of appellate advocacy, and oral argument provides the opportunity to answer questions.

Oral argument can be extremely important in some cases and less important in others, Rogers and DiPentima said.

"There are times when the oral argument will change my mind and other judges' minds," said DiPentima.