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12-year-old journalist busts cop who threatens to jail her for recording him
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12-year-old journalist busts cop who threatens to jail her for recording him

Some police officers need a primer on the First Amendment

Twelve-year-old Hilde Lysiak takes her job as a journalist seriously. You can see from the web version of her paper — the Orange Street News — that she covers serious stories. According to the Washington Post, Hilde has recently been covering stories in southern Arizona, even though she lives in Pennsylvania, and while she was there, she ran into Joseph Patterson, the town marshal in Patagonia.

Hilde had earlier published a story about a mountain lion that residents had seen in Patagonia, and while chasing down that tip, she encountered Patterson. According to Hilde, Patterson threatened to throw her in juvenile detention because she was following his car on her bicycle looking for stories (this, of course, is also not a crime).

The second time she ran into Patterson, she pulled out her cellphone and started filming.

OSN Publisher Hilde Lysiak Threatened With Arrestwww.youtube.com

In what is becoming a familiar tableau, Patterson asked Hilde, "Are you taping me?" to which Hilde responded in the affirmative. Patterson then threatened, "You can tape me, OK, but, what I'm going to tell you is if you put my face on the internet, it's against the law in Arizona. OK?"

As you can see above, Hilde did not respond to Patterson's threats and posted the video online.

There's a sense in which this frequent reaction from the police is understandable. People have a natural aversion to being recorded as they go about their work. No one likes to feel that they are being spied upon, or to run the risk that they will become an internet celebrity for all the wrong reasons.

However, if you're a cop, in uniform, performing your official duties, you have to know that the public has a First Amendment right to film you performing your duties, as long as they aren't obstructing you in any way during the course of their filming. And they have the right to later publish that footage or share it with the media.

Numerous court decisions (including from the 9th Circuit, which includes Arizona) have clearly established the existence of a First Amendment right to film police during the performance of their duties and have invalidated state statutes that have criminalized recording police.

So even if Arizona had a law making it illegal for Hilde to put this video on the internet, that law would be unconstitutional.

But it doesn't. It has a law that prohibits publishing the "personal information" of a peace officer if doing so "poses an imminent and serious threat to the peace officer's ... safety," and "the threat is reasonably apparent to the person making the information available on the world wide web to be serious and imminent." In other words, if you're aware that a given police officer is being targeted by a drug cartel, and you know that and publish his home address online, you can be punished under this law.

The law is clear that both the existence of the imminent threat to the officer's safety and the knowledge of that threat by the person posting the video are elements of the crime. Under no circumstances can the law be construed as a blanket prohibition against publishing video of cops in uniform, in public, doing their jobs, as Patterson claimed. And if it did, the law would be unconstitutional.

Nonetheless, the town of Patagonia cited this law in a statement on its website about the furor caused when the internet learned that their chief of police intimidated and threatened to jail a 12-year-old with an incorrect statement of the law.

Statement regarding officer PattersonImage source: Town of Patagonia website screenshot

In the statement, the town said, "the matter has been carefully reviewed and we have taken action we believe to be appropriate for the situation. We do not publicly disclose personnel actions including discipline and will have no further comment on this matter."

Amazingly, Marshal Patterson is well aware that the Arizona law in question does not prohibit citizens from publishing recordings of him on the internet, because he himself argued that before a judge. Patterson was sued in 2013 by a plaintiff named Peter Pototsky, who was protesting the border patrol. During the course of his protest, Patterson leveled the exact same threat against Pototsky that he did against Hilde; namely, that it was illegal for Pototsky to post video of him on the internet.

Patterson's attorneys argued before the court that the case should be dismissed for lack of "ripeness," which in this context means that there was no reasonable chance Pototsky could actually be prosecuted. In ruling on the motion to dismiss filed by Patterson's attorneys, the court noted:

Here, the law at issue is A.R.S. 13-2401(A), which makes it "unlawful for a person to knowingly make available on the world wide web the personal information of a peace officer . . . if the dissemination of the personal information poses an imminent and serious threat to the peace officer's . . . safety or the safety of that person's immediate family and the threat is reasonably apparent to the person making the information available on the world wide web to be serous and imminent." This law does not apply to posting a video recording of an incident between a citizen and a law enforcement officer, which does not reflect any personal information about the peace officer. The Motion to Dismiss admits as much.

In other words, Patterson's own attorneys admitted in court that the law he relied upon does not, in fact, make it illegal to post video of a police officer in public on the internet. The court agreed with his attorneys' argument, holding that "the law is simply inapplicable to the video allegedly made by the Plaintiff."

In other words, Patterson knew that Hilde was not breaking the law and had actually argued (and won) a court case based on that exact point, so there is no chance that he was unaware he was making an empty threat, but he still used it to attempt to intimidate a 12-year-old girl.

TheBlaze has asked the town of Patagonia for comment as to why the citation to ARS 13-2401 remains on its website even though a federal court has already ruled — in agreement with Marshal Patterson's own attorneys — that it does not apply to the facts of this case.

As for Hilde, she clearly does not want Marshal Patterson to experience harassment as a result of her experience.

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Leon Wolf

Leon Wolf

Managing Editor, News

Leon Wolf is the managing news editor for Blaze News.
@LeonHWolf →