ACLU Lawsuit Against BATF Proceeds in Florida

[TheBluesMan]

http://www.srpressgazette.com/news/a...atf_judge.html

Judge approves ACLU lawsuit against ATF
Lawsuit Claims ATF’s Unlawful Retaliation for Free Speech
2008-10-03 12:07:00
Jeni Senter

ACLU Director of Communications Brandon Hensler says the American Civil Liberties Union of Florida received an early victory today when Senior Federal Judge Lacey A. Collier denied the ATF’s motions for summary judgment in Kilpatrick v. U.S.

The ACLU filed the case on April 18, 2006, on behalf of Karen J. Kilpatrick, who claimed that the Bureau of Alcohol, Tobacco and Firearms (ATF) violated her Free Speech rights.

Kilpatrick was driving her blue van in Pensacola on April 19, 2004, with the slogans “Remember the Children of Waco” and “Boo ATF” written on some of the windows when she was pulled over by police for questioning by the ATF.

The ACLU argues in the lawsuit that her First Amendment Rights to Free Speech and her Fourth Amendment right to be free from unreasonable search and seizure were violated when officers detained her for an hour, searched her car without consent, and ordered her to remove the writing on the side of her van.

“The ATF’s actions were unconstitutional and there was no legal justification to stop and question Ms. Kilpatrick. We believe that the ATF was trying to silence Ms. Kilpatrick and the 911 call substantiates this position,” said Bert Oram, ACLU cooperating counsel.

“We are confident that we can win this case once the facts are demonstrated and we are pleased that we will be able to make our case in court,” he says.

Counsel for Kilpatrick v. The United States of America are Bert Oram, ACLU cooperating attorney; and Benjamin Stevenson, ACLU of Florida staff attorney in Pensacola.

An audio file of the 911 call can be found here: http://www.aclufl.org/pdfs/atfscalls...colapolice.wma <-- WARNING: 10.9MB File!

A PDF copy of the Order on Summary Judgment can be viewed here: http://www.aclufl.org/pdfs/Kilpatrick-SJ.pdf

ACLU Press Release may be found here: http://www.aclufl.org/news_events/in...ilAlertID=3672


Even though the ACLU completely ignores the Second Amendment, they are a powerful voice when it comes to the First Amendment. I'm uncomfortable supporting them, but in this case, it looks like they're clearly on the side of freedom of speech.

It is very interesting to listen to the 911 tape. The ATF agent (caller) has absolutely no probable cause or reasonable suspicion to put a BOLO on the van. He says he thinks it is an officer safety issue. He also says that FBI agents had already seen the van. When the dispatcher asks if the FBI stopped the van, the caller (ATF agent) asks if they're being recorded - then changes the subject. After the van is located, the police and ATF switch to cell phone communication.

I haven't read over the .pdf yet.

What do you think, is there a chance to put a big ol' smackdown on the ATF for illegal suppression of free speech in this case?

[IZinterrogator]

The ATF should have just let this case go and taken their punishment instead of clogging the court with baseless motions, but it is to be expected that they will make a motion to lay the blame at the feet of the agent instead of at the agency as a whole. No reasonable person would have construed those statements as posing a clear and present danger, even with the refinement of Schenck v. United States by Brandenburg v. Ohio, which stated that speech is not protected by the First Amendment if it is likely to cause violation of the law more quickly than an officer of the law reasonably can be summoned. This incited no one to do anything illegal except for the ATF agent that conducted the illegal detainment and search. However, I doubt that the agent will say that this was agency policy instead of his own poor judgment. Even if he did, the agency would probably not have these actions codified in agency procedures, so it would be difficult to prove for the agent. Hopefully this will have a farther reach against the agency as a whole instead of solely the agent in question. I hope the agent in question sells out the BATF after they sell him out, that's the only way I see this leading to sweeping reform of the BATF.

[Al Norris]

Um, Question! (raises hand)

In the Order On Summary Judgment, page 3, footnote 2, it says in part, "Roegner called the ATF office and was informed that Plaintiff had a concealed weapons permit." How does the ATF office know who in Florida possess a Florida concealed weapons permit? Does Florida link this database with the Feds?

At least, qualified immunity appears to be off the table!

[Double Naught Spy]

What do you think, is there a chance to put a big ol' smackdown on the ATF for illegal suppression of free speech in this case?

I would not call it a smackdown in the grand scheme, but a hand slapping. Government agencies don't really fear such suits and this one will be paid out of proverbial petty cash (meaning only a tiny fraction of the ATF's budget). The plaintiff won't get a trillion dollars own the badges of everyone in the ATF.

Maybe a person or two will get a reprimand after the outcome of everything, but by and large the agency won't be truly hurt. Additionally, this would not appear to be a policy issue, but one of limited behavior by individuals. So it would be hard for the ATF to learn much from this incident if the incident was the result of rogue behavior of one or a few individuals.

I am not sure I understand why they are only arguing the First Amendment issue. From the sounds of things, there is a 4th amendment issue as well.

[Bogie]

The real problem here, and one which is endemic through the system, is that the ATF has the unlimited resources at hand to fight this, rather than to settle. How many millions of dollars is it costing the taxpayer, because the bureaucracy has entrenched itself into a "we are always right" mode?

How can an ordinary citizen, or even a seven-figure millionaire, fight against an entity with literally bottomless coffers? The agency literally has limitless power, and companies like Cav Arms have to just sit there, be polite, and take it. "Uh... Sir, we're really not sure what you're looking for, but you are free to ruin our business if it makes you happy."

THAT is something to write your representatives about - the abuses of the bureaucracy. The "gun thing" isn't sexy, but in this day and age, squandering taxpayer dollars is...

(damn... looks like they'll let ANYONE in here... I sincerely hope that we can keep this reincarnated forum looking at the big picture, and not get derailed into splitting hairs...)

[buzz_knox]

Government agencies don't really fear such suits and this one will be paid out of proverbial petty cash (meaning only a tiny fraction of the ATF's budget).

The feds have a special fund for paying judgments, so ATF's budget won't be affected at all.

[Al Norris]

Originally Posted by Bogie

(damn... looks like they'll let ANYONE in here... I sincerely hope that we can keep this reincarnated forum looking at the big picture, and not get derailed into splitting hairs...)

Off Topic: The first one to split a hair (more than in half) or to begin counting how many angels fit on the head of a pin, is outa here.

On Topic: We, as gunnies, would do well to understand the methodology of the ACLU, as regards 1A issue. They win, because they have developed a consistant track record.

[Bogie]

One of our problems is that we get hung up on exact definitions.

"Assault rifle"

"Magazine"

"Clip"

Sigh

When what we SHOULD be doing is looking at the overall message that is being conveyed... A gunny sees a TV commentator talking about how a group of ROTC students are "shooting assault rifles" at an organized rifle match, and writes them a three page diatribe chewing them out about the exact definition of "assault rifle" instead of thanking them for showing the nice young people and their responsible handling of firearms.

And then the gunny is surprised when they do a negative story the next time. Because that's what they think people want. Reporters aren't special people - they react, and you can manipulate HOW they react.

How does the ACLU maintain a good relationship with the press? They are NICE to them... So the press is nice to them back, even when they decide that something unpopular gets their attention...

[Double Naught Spy]

The feds have a special fund for paying judgments, so ATF's budget won't be affected at all.

There ya go. So even the hand slap will be even more minimal to the agency itself.

[pax]

Playing the Devil's Advocate...

There's a comment at this link worth reading: http://www.saysuncle.com/archives/20...comment-208188 (It's from Kit, a female LEO in a western state).

Summary money quote for those who won't follow the link:

Originally Posted by Kit on the Say Uncle blog

You do not have to have probable cause for a traffic stop - only “reasonable suspicion.” A van which (based on the description) does not merely have bumper stickers, but instead has placards on the side, and which was seen parked near the Pensacola ATF building on the anniversary of Waco, and was also possibly the same van which stopped at the house of the former gun dealer who sold guns to Koresh - well, that’s enough for *me* to do a stop and talk.

....

Details are important, folks. The original posts I saw about this incident said that ATF had a car stopped solely because of the bumper stickers. That would be a serious problem. But taken in totality with the anniversary of waco, it being a van, large signage instead of simply bumper stickers, the koresh gun dealer connection, and it having been parked at an ATF building? Those are significantly important details.

She goes on to point out that there are other, potentially significant questions which have not been answered -- namely, whether the details above were the actual facts or merely made up by someone at the ATF (which would make a huge difference). And the most important question would relate to the allegation that ATF and/or police then demanded the placards be removed, which would definitely constitute a violation of civil rights.

Food for thought.

pax

[Glenn E. Meyer]

That's interesting, Kathy - thanks for the link.

I would like to agree, but not thread hijack, on the topic of assault 'something' definitions. As a psychologist, I've studied the weapons priming effect - whether a weapon has a negative connotation. I can tell you that long arms that look like military weapons generate that negative attribution in the general public that is not knowledgeable about guns and in some sectors of the gun community who do know about them and specifically think they are too dangerous for the general public. There are studies on such.

Mocking a source and making the distinction that an AR-15 that is semiauto is not an assault weapon has no traction for arguing access to such guns. That horse has left the barn. There are other better arguments.

The proponents of weapons bans will go for a total ban on military derivative semiauto weapons based on their analyses of the AWB's last instantiation and minimal effects on their goals.

If you want to preserve these weapons in private hands, talking about assault weapons or not assault weapons is an incestous debate that will get you nowhere outside the family.

If you say to a reporter it isn't fully auto just hicap semi, followed by a demo on how fast you can fire it - that isn't good PR. But I've seen that done.

Cho at VT did lots of damage with semiauto pistols. Other arguments are needed.

[Bogie]

What happens if you try to sell the guy doing the stop a few stickers?

(at the moment, my van/trailer are sorta "target rich environments")

[IZinterrogator]

Originally Posted by pax

And the most important question would relate to the allegation that ATF and/or police then demanded the placards be removed, which would definitely constitute a violation of civil rights.

That is probably why this is being touted as a First Amendment case and not a Fourth Amendment/unlawful detainment case. The ATF could explain their reason (or make up an explanation) to justify the stop, but not the order to remove the signs. The ACLU lawyers realized what aspect of the case they could win hands down and pushed that as the main issue.

I believe the ATF made up the explanation because they had no good reason to switch to unmonitored cell phone comms after finding out they were being recorded. Maybe a win here could provide case law resulting in all internal law enforcement communications having to be monitored and recorded on an official net? That would be a win for the people. Right now the switch to the cell phones looks like a conspiracy more than anything else.

[alan]

The ACLU bringing an action against ATF, isn't that a change.

Re the admonition concerning the age of the original post, my response is quite brief.