Panel Says Veterans Administration Police Could Reasonably Have Believed That Making Recordings at Entrance to National Veterans Park Was Proscribed by a Provision of the Code of Regulations
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has reversed an order denying summary judgment to three Department of Veterans Affairs police officers who were sued by a man they arrested on two consecutive Sundays in June 2016 for taking photographs at the Great Lawn Gate entrance to the Los Angeles National Veterans Park, in alleged violation of a regulation, holding that they are entitled to qualified immunity.
The man—Vietnam era veteran Robert L. Rosebrock, a vocal advocate of veterans’ rights—was also arrested for engaging in an unlawful protest by bringing a placard onto the Veteran’s Administration (“VA”) site and interfering with officers by attempting to intervene when a cohort of his, Ted Hayes, was being arrested. Rosebrock, who conducted weekly protests at the facility, contends that the grounds should be opened for a variety of activities, and in particular, as a shelter for homeless veterans.
A three-judge panel said in a memorandum opinion, filed Wednesday:
“We reverse because the record demonstrates that on both occasions the officers had an objectively reasonable belief that they had probable cause to cite Rosebrock under all three regulations, and were entitled to qualified immunity.”
District Court Judge Dale S. Fischer of the Central District of California found that there was no probable cause for an arrest and that qualified immunity could not be established based on a reasonable belief that probable cause did exist.
The arrest for unauthorized photography was pursuant to 38 C.F.R. §1.218(a)(10), which provides, with respect to Veterans Administration facilities:
“Photographs for news, advertising or commercial purposes. Photographs for advertising or commercial purposes may be taken only with the written consent of the head of the facility or designee. Photographs for news purposes may be taken at entrances, lobbies, foyers, or in other places designated by the head of the facility or designee.”
At right is the Great Lawn Gate entrance to the Los Angeles National Veterans Park, at Wilshire and San Vicente boulevards in West Los Angeles. Robert L. Rosebrock was twice arrested for taking photographs there in 2016 for news purposes, in alleged violation of a Veterans Administration regulation. The District Court held last year that the regulation, on its face, does not bar news photography at “entrances.” The Ninth Circuit on Wednesday reversed, saying that officers had qualified immunity because they could reasonably have thought that photography only at certain entrances was permissible.
There was no contention by the government that Rosebrock, 75 at the time of the arrests, had an advertising or other commercial objective. The defendant insisted that he did not come under the balance of the regulation because he is not a journalist and, even if he did have a news purpose, his photography would have been permissible because it took place at an “entrance.”
Fischer said in her March 20, 2019 order denying summary judgment:
“Section 1.218(a)(10) permits news photography ‘at entrances, lobbies, foyers, or in other places designated by the head of the facility or designee.’ The parties disagree whether ‘designated by the head of the facility or designee’ refers only to ‘other places’ or to the entire clause: ‘entrances, lobbies, foyers, or in other places.’ The only reasonable reading of the regulation is that photography for news purposes is expressly permitted at all entrances, whether or not the entrance is designated by the head of the facility. To accept Defendants’ reading of the regulation renders ‘entrances, lobbies, foyers’ surplusage.”
“The parties dispute whether Plaintiff had a news purpose. But Plaintiff’s purpose is not dispositive. If Plaintiff lacked a news purpose, there was no probable cause to arrest him under any reasonable reading of § 1.218(a)(10). But even if Plaintiff did have a news purpose, he was nevertheless at all relevant times on either the public sidewalk, or in the Entrance Area. Defendants present no argument as to why the Entrance Area should not be considered an entrance….The Court concludes as a matter of law that the Entrance Area is an entrance for the purposes of § 1.218(a)(10).”
Ninth Circuit’s Decision
The Ninth Circuit, in an opinion signed by Judges Consuelo M. Callahan, Patrick J. Bumatay, and Lawrence VanDyke, rejected Fischer’s view that an entrance is an entrance. The panel said:
“Lacking clear legal precedent as to what constituted an ‘entrance’ under statute, the officers relied in part upon then-VA Director Aim Brown’s interpretation. She testified she understood photography was only permitted ‘with the approval of the public affairs officer,’ and the only entrance she considered ‘for news purposes’ was main hospital building 500—not the VA Plaza. Because the Director expressly understood that the regulation ‘permit[s] news photography only at authorized areas,’ it is not unreasonable that the VA officers also shared this general understanding.”
All three officers, the opinion notes, said in declarations that they were aware of articles that Rosebrock had authored on veterans’ rights, “solidifying their reasonable belief in Rosebrock’s ‘news purpose.’ ”
Fischer had determined that Rosebrock did not breached the regulation banning unauthorized protests at Veterans Administration facilities —§1.218(a)(14)—noting that none of the three defendant officers had asserted that he had seen the arrestee, on either day on which he was arrested, toting a protest sign.
The Ninth Circuit opinion says:
“On both occasions, the officers were aware of Rosebrock’s prior protests, and observed large protest signs identical to those Rosebrock carried in prior protests leaning against the Great Lawn Gate in the VA Plaza. Rosebrock did not have authorization to protest on the VA Plaza. Rosebrock did not deny that he was protesting in his later deposition, insisting that he ‘always brings signs’ to his ‘protests.’ Given the officers’ prior knowledge of Rosebrock’s protests and observation of the protest signs on federal property, they had reasonable probable cause to cite Rosebrock under § 1.218(a)(14).”
The government also sought to justify the arrests based on an alleged violation of §1.218(a)(5) which authorizes an arrest where a person on VA property “impedes or disrupts the performance of official duties by Government employees” or engages in “unwarranted loitering.”
While Fischer focused on the loitering provision, finding that it did not apply to the conduct, the Ninth Circuit opinion addresses the disruption of “the performance of official duties,” saying:
“On both June 12 and 19. 2016. the officers were present to arrest Rosebrock’s associate, Mr. Hayes, and Rosebrock attempted to intervene. The officers had reason to believe that Rosebrock was conducting unauthorized news filming on federal property in both instances, ‘disrupting the performance of official duties’ when the officers paused in assisting with Hayes’ arrests to respond to Rosebrock.”
The opinion continues:
“When asked to surrender his camera for ‘evidence’ purposes, Rosebrock did not comply on June 12 or 19 and further impeded the officers from carrying out their official duties. Rosebrock’s consistent ‘disturbance’ demonstrably interfered with the officers’ official duties such that they had an objectively reasonable belief that they had probable cause to arrest Rosebrock under section 1.218(a)(5).”
The case is Rosebrock v. Perez, 19-55387.
Criminal Charges Dismissed
Magistrate Judge Steven Kim of the Central District of California on May 1, 2017, dismissed the charges against Rosebrock, and Rosebrock brought his suit against the three officers and the government on June 12, 2017.
The government appealed the dismissal of the criminal charges and Judge Jesus G. Bernal on April 17, 2018, affirmed that dismissal, declaring that the cited regulation “does not impose a criminal penalty for taking photographs in undesignated areas for news purposes on VA property.”
In May 2018, it was announced that the VA police will no longer “arrest persons for photography for Media purposes.”
Rosebrock was acquitted on April 18, 2017, after a trial, on a separate charge based on displaying two four-by-six inch American flags on a fence at the entrance to the park on Memorial Day 2016.
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