If you thought the White House’s “looting starts, shooting starts” tweet was the worst thing Friday would bring, you may be wrong. In other infuriating happenings, CNN reporter Omar Jimenez and three members of his crew were arrested in the middle of a live broadcast Friday by the Minnesota State Patrol.
If the “First Amendment Violation” you’re hopping mad about this morning is Twitter making you click one extra button to see a tweet from the president and not Minnesota police arresting an entire team of TV reporters, you’re not a serious person.
— Andrew Egger (@EggerDC) May 29, 2020
The broadcast team identified itself, showed press credentials, and told the officers, “We are live on the air at the moment. This is the four of us, we are one team. Just put us back where you want us, just let us know. Wherever you want us, just let us know.”
A CNN reporter & his production team were arrested this morning in Minneapolis for doing their jobs, despite identifying themselves – a clear violation of their First Amendment rights. The authorities in Minnesota, incl. the Governor, must release the 3 CNN employees immediately.
— CNN Communications (@CNNPR) May 29, 2020
The crew had been covering the protests over the death of George Floyd. And to add a little racist frosting atop a cake of First Amendment violations, Jimenez is black and Latino – but a nearby white CNN reporter involved in the same broadcast was not arrested. CNN pointed this out as well:
CNN reporter Omar Jimenez, who is black and Latino, and his team were arrested by officers early this morning in Minneapolis. Not far away, CNN journalist Josh Campbell, who is white, says he was "treated much differently." https://t.co/xmT2bRNQ5Y pic.twitter.com/ZVpbt2sI21
— CNN International (@cnni) May 29, 2020
The marginally comforting news is that included in America’s civil rights laws is a federal statute that allows a person to sue for damages when they’ve been wrongfully arrested.
42 U.S.C. § 1983 allows people to sue state governmental officials for civil rights violations when local law enforcement deprives them of constitutional rights. Section 1983 actions are the go-to lawsuits in excessive force cases (such as the one George Floyd’s family will be certain to file), but they can also be used for non-violent deprivations of rights. In fact, Omar Jimenez’s arrest presents a veritable buffet of potential 1983 claims. Among them are the deprivation of Jimenez’s First Amendment rights based on the police restricting him from broadcasting. Then there’s violation of Jimenez’s Fourth Amendment rights against unreasonable search and seizure for a flawed arrest. Finally, there’s a Fourteenth Amendment equal protection violation given that he — a black and Latino reporter — was arrested while a similarly situated white reporter was not. I hope the court clerks have been logging their overtime, because assuming this lawsuit hits the docket, it’s going to be lengthy.
Let’s take a quick look at what’s likely to be in any possible complaint.
First [Amendment] things first. The First Amendment guarantees of free speech and free press carry an implied right to gather the news. Much has been written in scholarly journals and online about the degree to which courts recognize that right. Yanking a reporter off the air in the middle of a broadcast of race riots looks a lot like content-based censorship, so Minnesota should have fun defending that one.
CNN crew has been released. Governor has apologized.
For the record: arresting journalists is the kind of thing that happens in dictatorships and authoritarian regimes.
We live in a democracy. https://t.co/SLFtZ7BaBe
— Christiane Amanpour (@camanpour) May 29, 2020
Here, because Jimenez is a broadcaster, the damages are more profound than mere limits on an individual person or an individual team’s right to move freely and without lawful government restrictions. Television is transmitted at a rate of thirty frames per second. Every fraction of a second that a journalist and his team are not providing content in such a medium is an assault on the rights of the free press to exercise its freedom to report and to broadcast. The issues here are profound. The public received fewer facts, less context, less explanation, less narrative, and less of a sense of whether, perhaps, a particular community was or was not in danger. Violent protests are scary things, and people’s property and lives are at stake when they occur. People need to know where they are occurring, when they are occurring, and how they are occurring. They need to know immediately that information which could lead them to add their voices to a peaceful protest or whether to flee should danger break out. CNN viewers lost the ability to receive factual information from one of many locations Friday morning because of government action.
Now let’s talk Fourth Amendment. Jimenez’s arrest was short-lived but still wrongfully conducted. To succeed in a 1983 action on that basis, Jimenez and the others would need to show that the officers wrongfully arrested them and that, therefore, holding them in police custody constituted false imprisonment. A wrongful arrest is one not based on probable cause that a crime has been committed. Despite the many facepalm-inducing examples of police arresting anyone they simply don’t trust/don’t like, there is an actual legal standard applicable. To withstand a legal challenge under § 1983, an arrest must be based on the reasonable basis for believing a crime has been committed. The arresting officer does not have to be correct — but the belief must be based in facts and reasonable inferences.
Here, no reasonable person would have seen Jimenez broadcasting live and believed him to be carrying out some criminal caper; that inference is simply not based in any factual reality. End scene. No reasonable belief equals no probable cause for arrest. No probable cause plus illegal arrest equals § 1983 damages.
— CNN (@CNN) May 29, 2020
The Minnesota State Patrol, knowing the storm it just ignited, has kicked into damage-control mode.
In the course of clearing the streets and restoring order at Lake Street and Snelling Avenue, four people were arrested by State Patrol troopers, including three members of a CNN crew. The three were released once they were confirmed to be members of the media.
— MN State Patrol (@MnDPS_MSP) May 29, 2020
Slick attempt there to characterize the incident as some kind of mistaken identity, as if the cops couldn’t possibly have identified a live broadcasting team, mid broadcast, as members of the press who just happened to have broadcast equipment on their persons. Nice try. Nobody is buying it.
WHY HAVEN’T YOU ARRESTED THE COPS WHO KILLED GEORGE FLOYD???
— Elie Mystal (@ElieNYC) May 29, 2020
“The three were released once they were confirmed to be members of the media.”
I’m sorry, what? @OmarJimenez was live on air when he was arrested. There was no question that he and his crew were members of the media.
This is insane. https://t.co/aPo7g5joQW
— Yashar Ali (@yashar) May 29, 2020
The Minnesota State Patrol is digging itself in deeper with its absurd claim of needing to “confirm” the identity of the CNN crew. That’s really not going to play well in court.
The Fourteenth Amendment claim may be a bit harder to prove — but is still strong enough to find its way into the complaint. Here, context will matter. The press was covering protests amid a racial powder keg. Lots of reporters were around. The president tweeted that he’d be sending in law enforcement. And the one person who gets arrested is a reporter of color who works for the president’s most reviled network. That a white reporter was doing the same thing nearby and not arrested is not a good look for the cops.
In civil rights law, we call this a similarly situated comparator. A jury is entitled to draw an inference of racial discrimination from not much more than this. https://t.co/n2xSCnmXXy
— Sasha Samberg-Champion (@ssamcham) May 29, 2020
Minnesota governor Tim Walz gave a press conference Friday in a further attempt to mitigate the disaster that currently is unfolding in Minneapolis. In it, Walz said that CNN President Jeff Zucker was “rightfully incredibly angry” in a phone call with him this morning. Zucker “demanded to know what happened” when Jimenez was arrested. Walz said he accepted “full responsibility” for the incident.
“It was not a state need,” Walz conceded. “The idea that a reporter would have been taken while another police action was in play is inexcusable.”
“Create space where the story can be told,” Walz implored the police.
“Even if you’re clearing an area, we have got to ensure that there is a safe spot for journalism to tell the story. The issue here is trust. The community that’s down there that’s terrorized by this, if they see a reporter being arrested, their assumption is it’s because something is going to happen that they [the police] do not want to be seen. That is unacceptable,” Walz said.
In other words, by Walz’s logic, the police could be perceived as shutting down the very mode of transparency — a camera and a microphone — which resulted in a group of Minneapolis officers being held to public account for their conduct in George Floyd’s arrest and death. The press, according to Walz, provides important “sunshine” and “disinfectant” when gathering and providing news coverage of the police — and shutting that coverage is flat-out wrong.
Law&Crime has asked CNN if it plans to pursue legal action. No response has been received as of the time of publication.
[Image via screen capture from CNN/YouTube.]
This is an opinion piece. The views expressed in this article are those of just the author.