City of Kalispell v. Doman
What's at Stake
This case asks whether the state can arrest, charge, and convict someone under Montana’s obstruction statute for exercising their federal and state constitutional right to record police officers in public spaces. The defendant was filming a traffic stop when police instructed him to move farther away. When he did not move as far as they wanted, they arrested him for obstructing a peace officer. The ACLU’s State Supreme Court Initiative, along with the ACLU of Montana, filed an amicus brief in support of the defendant arguing that the officer’s refusal to allow the defendant to peacefully record police activity from a public sidewalk was, in effect, a content-based restriction on speech that could not be justified under strict scrutiny. Even if the restriction was not content-based, our brief argues that it is not a reasonable time place or manner restriction.
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Summary
Mr. Doman was riding his bike in Kalispell, Montana, when he stopped and used his phone to record a police officer conducting a traffic stop. At all times during the incident, Mr. Doman was on the sidewalk. The first police officer called for backup. When the second officer arrived, he immediately told Mr. Doman to walk farther down the sidewalk, at a distance where Mr. Doman would not have been able to record audio. Mr. Doman slowly backed up part of the way while expressly asserting his right to peacefully record from a public sidewalk. The officer arrested him, and Mr. Doman was charged and ultimately convicted with obstructing a peace officer. His conviction was upheld in the intermediate appellate court, and the case is now pending before the Montana Supreme Court.
The ACLU’s State Supreme Court Initiative and the ACLU of Montana filed a brief in support of the defendant arguing the First Amendment to the U.S. Constitution and stronger protections of Article II, Section 7 of the Montana Constitution confer a right to record police officers performing their duties in public. Our brief argues that Mr. Doman was arrested and deemed to have violated the law not because of where he was standing, or even because his phone was recording, but because his phone was specifically recording the police. The restriction on Mr. Doman’s right to record was content-based and cannot survive strict scrutiny. However, even if the restriction was content-neutral, it would still be unconstitutional because Mr. Doman was at all times on a public sidewalk, where pedestrians are entitled to be physically present, even during traffic stops occurring on the street.