Metropolitan News-Enterprise


Tuesday, October 24, 2023


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Suit for Arrest Over Courthouse Photography Not Restored

Ninth Circuit Says Deputies Were Properly Granted Qualified Immunity


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has held that an action against two sheriff’s deputies for arresting an activist who was photographing the entrance to a courthouse on her cell phone were properly granted qualified immunity because the defendants were reasonable in interpreting a general order and local rule permitting photographing in a “designated media area” only applied to members of the press.

Friday’s memorandum opinion affirms a summary judgment granted by District Court Judge Anthony W. Ishii of the Eastern District of California in favor of Fresno County Sheriff’ Deputies Ethan Bare and Jeremy Malicoat. They arrested Chloe Psalm Jeri Borden on May 10, 2019, for willfully obstructing, resisting, and/or delaying a peace officer by refusing to be questioned as to her photographing outside the county courthouse and attempting to avoid being handcuffed.

On the day set for trial, the charge was dismissed by the prosecution owing to insufficiency of the evidence, and Borden then sued under 42 U.S.C. §1983 for alleged civil rights violations.

Bare and Malicoat had viewed her activity as violative of a general order and a local rule, each of which bars photography at the courthouse “except:...outside the courtroom, if it is: i) in a designated media area….” Borden maintained that because she was, in fact, photographing from a “designated media area,” she was acting in violation of no rule and that it was thus “clearly established” that probable cause did not exist to arrest her, precluding immunity.

Ishii’s Ruling

Ishii rejected Borden’s reasoning, saying, in his Sept. 29, 2022 ruling:

“California Rule of Court 1.150(b)(2) defines the word ‘media’ as ‘any person or organization engaging in news gathering or reporting and includes any newspaper, radio or television station or network, news service, magazine, trade paper, in-house publication, professional journal, or other news-reporting or news-gathering agency.’ If this definition is read into the phrase ‘designated media area,’ then the phrase refers to an ‘area’ that is ‘designated’ for a ‘person or organization engaging in news gathering or reporting....’ This suggests that the privileges afforded in the designated media area apply only to members or representatives of the media.”

He continued: “Furthermore, the choice of words in formulating the phrase ‘designated media area’ suggests that the rules’ enactors intended to distinguish the media from the general public.

“If the intent was to open the area to the general public, then the area could have easily been named ‘designated public area,’ ‘designated area for use of recording devices,’ or another phrase that clearly indicates that the area is open to the general public.”

The judge went on to say:

“Even if the Court assumes arguendo that Defendants misinterpreted parts of the General Order and Local Rule and did not have probable cause to arrest, Defendants are nevertheless entitled to qualified immunity because ‘it is reasonably arguable that there was probable cause for the arrest.’…Plaintiff has not met her burden to prove that ‘all reasonable officers would agree that there was no probable cause in this instance.’…Notably, Plaintiff does not cite a single case clearly establishing that Defendants’ conduct under the circumstances violated the Fourth Amendment’s protection against unreasonable searches and seizures.”

Appellant’s View

Fresno attorney Kevin G. Little argued in Borden’s opening brief on appeal:

“Neither the General Order nor Local Rule contains language supporting the district court’s conclusion; instead, they impose requirements applicable generally. The General Order applies to ‘all persons entering any courthouse.’…It further states that ‘no one’ may engage in prohibited recording ‘ a designated media area.’…The Local Rule contains the same ‘no one’ ‘ a designated media area’ language….The district court’s interpreting the ‘designated media area’ references entitling only the media to record ignores the broadly inclusive terms of the General Order and Local Rule, which literally apply to everyone on courthouse grounds.

“Because, as demonstrated above, Borden was entitled to record the courthouse lobby from the media area, Bare and Malicoat had no probable cause that she was committing a crime when they arrested her and used force on her.”

Little added, in a footnote:

“Saying ‘no one may record in the courthouse except from a designated media area,’ is the same as saying ‘everyone may record in the courthouse if within a designated media area.’ ”

A three-judge panel—comprised of Consuelo M. Callahan, William A. Fletcher, and Kenneth Kiyul Lee—declared:

“Contrary to Ms. Borden’s assertion at oral argument, we find the language of the General Order and Local Rule to be ambiguous. We think that in light of the strong interest in protecting jurors, witnesses, and court personnel from unwanted publicity, the district court’s interpretation of the order and rule is at least reasonable, if not compelling. Accordingly, we agree with the district court that the deputies were entitled to qualified immunity because they reasonably believed that the local rules prohibited Ms. Borden’s photographing the court’s entrance and thus had probable cause to detain her.”

Little described his client, in his Dec. 28, 2022 brief, in this manner:

“Borden is a 23-year-old single mother and activist who participates in marches, protests, and other exercises of her civil rights. Borden feels strongly that the United States is becoming a police state, and that law enforcement and Borden is a 23-year-old single mother and activist who participates in marches, protests, and other exercises of her civil rights….Borden…believes that our political system is broken and that the only way to attempt to bring about meaningful change is by protest and exposing law enforcement misconduct. Around the time of the incidents giving rise to this case Borden had the intention of filming law enforcement harassment and misconduct, an activity protected by California law and the state and federal constitutions.”

The Los Angeles Superior Court’s local rule and general order pertaining to photography only has application within the courthouse. It provides that photography may take place within the courthouse  and “outside the courtroom, if it is: i) in a designated media area, or ii) with prior written permission from the Presiding Judge, supervising judge, or site judge.”

The case is Borden v. Bare, 22-16569.


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