KILLMER, LANE & NEWMAN, LLP ATTORNEYS AT LAW

1543 CHAMPA ST. Ÿ SUITE 400 Ÿ THE ODD FELLOWS HALL Ÿ DENVER, CO 80202
303.571.1000 Ÿ FAX: 303.571.1001 Ÿ www.KLN-law.com
Darold W. Killmer
David A. Lane*+
Mari Newman*
Michael Fairhurst
Andrew McNultyˆ
Liana Orshan
July 12, 2018 Eleanor Weedum

Via Email

Ms. Dea Wheeler

Boulder County Attorney
dwheeler@bouldercounty.org

Mr. Tom Carr

Boulder City Attorney
carrt@bouldercolorado.gov

Re: Jedon Kerr and Dean Schiller v. City of Boulder, County of Boulder, et. al.

Dear Counsel:

The above-referenced individuals have retained KILLMER, LANE & NEWMAN, LLP to represent
them with respect to issues arising out of Boulder Police and Sheriff’s Department officers’
violations of their free speech rights under the First Amendment and Fourth Amendment rights
on, December 28, 2018.1 My understanding of the relevant facts and circumstances follows:

1. Factual Background

Jedon Kerr and Dean Schiller went out to the Boulder county jail on Dec. 28 and they were
filming outside of the jail, inside the public lobby, and by the local bike park. An officer
approached them and asked if they needed any help. They responded that they did not. Another
officer came and told Mr. Kerr to sit down and asked for his ID. Mr. Kerr asked if he was being
charged or suspected with a crime, the officer ignored the question and continuously asked if he
had an ID. Mr. Kerr informed the officer that he did not think that his ID was in his wallet.
Nevertheless, the officer reached into Mr. Kerr’s pants, removed his wallet and searched for the
ID, despite the fact that no crime had been committed and Mr. Kerr did not consent to this
search. The officer used force in searching Mr. Kerr, shoving his knee into Mr. Kerr’s back until
he screamed in pain. Mr. Schiller also carried no ID and he was searched as well. Mr. Kerr’s and
Mr. Schiller’s recording devices were turned off by the officers. They were taken inside the jail
and through the booking process. After an hour and a half, they were released with no charges
filed. Documents reveal that both Sheriff’s Deputies and Police officers were involved in this

________________________________________
*Also admitted to practice in California
+Also admitted to practice in New York
ˆAlso admitted to practice in Missouri
 Dea Wheeler
Tom Carr
January 29, 2019
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unlawful action. Body cam recordings exist, and the below links accurately reflect the events in
question.

https://www.youtube.com/watch?v=EhqQVXClTN0

https://www.youtube.com/watch?v=J6a9H_MRols

https://www.youtube.com/watch?v=C-Fvl7X3D34

2. Legal Analysis

2.1 First Amendment

The First Amendment states that “Congress shall make no law ... abridging the freedom
of speech.” U.S. Const. amend. I. The First Amendment applies to the states and municipalities
through the Fourteenth Amendment’s due process clause. See Gitlow v. New York, 268 U.S.
652, 666 (1925).

2.1(a) Recording police is protected by Colorado Statute and the First

Amendment.

C.R.S. § 13-21-128 gives citizens a right to video and photograph officers. The officers
in question in this case are in violation of clearly established law, codified by the State of
Colorado.

For two decades, federal courts have recognized that the First Amendment protects the
right to record police officers. Indeed, every federal court of appeals to address the issue on the
merits has acknowledged the existence of this First Amendment right. See, e.g., Fields v. City of
Phila., 2017 U.S. App. LEXIS 12159 (3d Cir. July 7, 2017); Turner v. Lieutenant Driver, 848
F.3d 678 (5th Cir. 2017); Bowens v. Superintendent of Miami S. Beach Police Dep’t, 557 Fed.
App’x 857, 863 (11th Cir. 2014) (“Citizens have ‘a First Amendment right, subject to reasonable
time, manner and place restrictions, to photograph or videotape police conduct.’” (quoting Smith
v. City of Cumming, 212 F.3d 1332, 1333 (11th Ci r. 2000))); Gericke v. Begin, 753 F.3d 1, 7 (1st
Cir. 2014) (“the Constitution protects the right of individuals to videotape police officers
performing their duties in public”); Adkins v. Limtiaco, 537 Fed. App’x 721, 722 (9th Cir. 2013)
(holding that allegations that plaintiff was arrested in retaliation for taking photos of the police in
public stated a claim for First Amendment retaliation); ACLU of Ill. v. Alvarez, 679 F.3d 583,
599–600 (7th Cir. 2012) (holding that a statute that would prohibit recording police officers with
a cell phone violated the First Amendment); Glik v. Cunniffe, 655 F.3d 78, 79 (1st Cir. 2011)
(holding “unambiguous” the constitutional right to videotape police activity); Iacobucci v.
Boulter, 193 F.3d 14, 25 (1st Cir. 1999) (holding that filming public officials in a public area
“was done in the exercise of [Plaintiff’s] First Amendment Rights”); Fordyce v. City of Seattle,
55 F.3d 436, 439 (9th Cir. 1995) (holding that recording of police conduct fell within the “First
Amendment right to film matters of public interest”); see also Schnell v. City of Chicago, 407

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Tom Carr
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F.2d 1084, 1085–86 (7th Cir. 1969) (reversing dismissal of action by news photographers who
covered demonstrations at the 1968 Democratic National Convention in Chicago against the
police for “interfering with plaintiffs’ constitutional right to . . . photograph news events”).2 By
recording the police, Mr. O’Connell was engaged in First Amendment protected speech.

2.1(b) Plaintiffs were exercising their First Amendment rights in a traditional

public forum.

The recordings were made in a traditional public forum. Plaintiffs were standing on a
public sidewalk while filming or inside of a public building with no signage prohibiting filming.
“‘[P]ublic places’ historically associated with the free exercise of expressive activities, such as
streets, sidewalks, and parks, are considered, without more, to be ‘public forums.’” Bowman v.
White, 444 F.3d 967, 975 (8th Cir. 2006) (quoting United States v. Grace, 461 U.S. 171, 177
(1983)). Such space occupies a “special position in terms of First Amendment protection” [and]
the Supreme Court has ““repeatedly referred to public streets as the archetype of traditional
public forum.” Snyder v. Phelps, 562 U.S. 443, 456 (2011) (quoting Frisby v. Shultz, 487 U.S.
474, 480 (1988)). Because Mr. O’Connell was engaged in First Amendment activity at a public
forum, his arrest for exercising his First Amendment rights is particularly egregious.

2.1(c) The seizure of recording equipment constitutes an unconstitutional prior

restraint.

2
In circuits where the issue has not yet been decided by the courts of appeals, district courts have
regularly recognized the First Amendment right to record the police. See e.g., Crawford v.
Geiger, 131 F. Supp. 3d 703, 715 & n.5 (N.D. Ohio 2015) (surveying case law and holding that
“there is a First Amendment right openly to film police officers carrying out their duties in
public” and stating that the court is “firmly persuaded the First Amendment shields citizens
against detention or arrest merely for making a photographic, video or sound recording, or
immutable record of what those citizens lawfully see or hear of police activity within public
view”); Higginbotham v. City of New York, 105 F. Supp. 3d 369, 380 (S.D.N.Y. 2015) (holding
that “[w]hile videotaping an event is not itself expressive activity,” it is protected by the First
Amendment because it can be “an essential step towards an expressive activity”); Garcia v.
Montgomery Cnty., 145 F. Supp. 3d 492, 508 (D. Md. 2015) (holding that “video recording of
police activity, if done peacefully and without interfering with the performance of police duties,
is protected by the First Amendment.”); Buehler v. City of Austin, No. A-13-CV-1100-ML, 2015
U.S. Dist. LEXIS 20878 (W.D. Tex. Feb. 20, 2015); Lambert v. Polk Cnty., 723 F. Supp. 128,
133 (S.D. Iowa 1989) (“It is not just news organizations . . . who have First Amendment rights to
make and display videotapes of events—all of us . . . have that right.”); Channel 10, Inc. v.
Gunnarson, 337 F. Supp. 634, 638 (D. Minn. 1972) (recognizing “constitutional right to have
access to and to make use of the public streets, roads and highways . . . for the purpose of
observing and recording in writing and photographically the events which occur therein”); see
also Gaymon v. Borough of Collingdale, 150 F. Supp. 3d 457, 468 n.9 (E.D. Pa. 2015)
(observing in dicta that “federal case law has overwhelmingly held that citizens do indeed have a
right to record officers in their official capacity so long as they do not interfere with an officer’s
ability to do his or her job”).
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Tom Carr
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The officers seized Plaintiffs’ cameras and arrested them, thereby preventing them from
continuing to engage in First Amendment activity. “[A]dministrative ... orders forbidding certain
communications when issued in advance of the time that such communications are to occur” are
a prior restraint on First Amendment activity. Alexander v. United States, 509 U.S. 544, 550
(1993) (quoting M. Nimmer, Nimmer on Freedom of Speech § 4.03, p. 4–14 (1984)); Rodney A.
Smolla, Free Speech In An Open Society 113 (1992) (“In some settings government may learn of
the existence of the proposed expression before it takes place or is widely disseminated . . . .
[These] attempts by the government to restrain the speech before it even occurs . . . are known as
‘prior restraints.’”). The theory behind this doctrine is “deeply etched in our law: a free society
prefers to punish the few who abuse rights of speech after they break the law than to throttle
them and all others beforehand. It is always difficult to know in advance what an individual will
say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks
of freewheeling censorship are formidable.” Southeastern Promotions, Ltd. v. Conrad, 420 U.S.
546, 559 (1974) (emphasis in original).

Plaintiffs’ arrests are analogous to Robinson v. Fetterman, 378 F. Supp. 2d 534 (E.D. Pa.
2005), wherein the plaintiff was arrested for filming the police making stops on the highway
from private property onto which he had permission to enter. Id. at 539. The police detained the
plaintiff at the police station for several hours and confiscated his camera. Id. at 539-40. In
finding that the plaintiff “established his claim that the [police officers] retaliated against him for
exercising his First Amendment right to videotape police conduct,” id. at 542, the court asserted
that, “to the extent that the troopers were restraining [the plaintiff] from making any future
videotapes and from publicizing or publishing what he had filmed, [their] conduct clearly
amounted to an unlawful prior restraint upon his protected speech.” Id. at 541. Similarly, in this
case, the officers prevented Plaintiffs from recording their activity by seizing his camera and
arresting him, thereby instituting a prior restraint on his First Amendment activity.

2.1(d) Plaintiffs’ search, arrest, detention, and seizure of their cameras was in
retaliation for their exercise of First Amendment rights.

“[A]ny form of official retaliation for exercising one's freedom of speech, including
prosecution, threatened prosecution, bad faith investigation, and legal harassment, constitutes an
infringement of that freedom.” Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000). If “the
plaintiff was engaged in constitutionally protected activity[,]” “the defendant’s actions caused
the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to
engage in that activity[,]” and “the defendant’s adverse action was substantially motivated as a
response to the plaintiff’s exercise of constitutionally protected conduct,” then retaliation in
violation of the First Amendment has been established. Id. at 1212.

Plaintiffs were certainly engaged in First Amendment protected activity, arrest and
detention would chill a person of ordinary firmness,3 and the officers were taking action against
them because of their First Amendment activity.

3
To establish the second element of a First Amendment retaliation claim, “a defendant’s conduct
need not be egregious; petty harassment and ridicule, for example, may suffice.” Bart v. Telford,
677 F.2d 622, 625 (7th Cir. 1982); see also Garcia v. City of Trenton, 348 F.3d 726, 728 (8th
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Tom Carr
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2.2 Fourth Amendment

As the Supreme Court has observed, “[t]he purpose of the Fourth Amendment is … to
prevent arbitrary and oppressive interference by enforcement officials with the privacy and
personal security of individuals.” United States v. Mendenhall, 446 U.S. 544, 553-54 (1980)
(internal citations omitted). In order to achieve this purpose, the Court has long held that the
Fourth Amendment prohibits unreasonable searches and seizures. See Elkins v. United States,
364 U.S. 206, 213 (1960); see also United States v. Jacobsen, 466 U.S. 109, 113 (1984)
(explaining that a search occurs “when an expectation of privacy that society is prepared to
consider reasonable is infringed”).

2.2(a) The search was unreasonable.

Searches “conducted without a warrant are per se unreasonable under the Fourth
Amendment-subject to only a few specifically well-established and well-delineated exception,”
none of which are applicable in the instant matter. Roska v. Peterson, 328 F.3d 1230, 1248 (10th
Cir. 2003). Here, there is no evidence that there were exigent circumstances and it is clear that
the “special needs” doctrine is not applicable. Moreover, the searches that have been conducted
by Defendants go far beyond that which was authorized by the Court in Terry v. Ohio, 392 U.S.
1, 30-31 (1968) (explaining that a police officer is “entitled for the protection of himself and
others in the area to conduct a carefully limited search of the outer clothing of such persons in an
attempt to discover weapons which might be used to assault him”), as there was no indication
that Mr. O’Connell was armed or reasonable suspicion to believe he had committed a crime.

For example, in Brown v. Texas, 443 U.S. 47, 52, (1979), the Court invalidated a
conviction for violating a Texas stop and identify statute on Fourth Amendment grounds. The
Court ruled that the initial stop was not based on specific, objective facts establishing reasonable
suspicion to believe the suspect was involved in criminal activity. Id., at 51-52. Absent that
factual basis for detaining the defendant, the Court held, the risk of “arbitrary and abusive police
practices” was too great and the stop was impermissible. Id., at 52. Because the officers had no
valid legal basis for searching Mr. O’Connell, they violated his Fourth Amendment right to be
free from unreasonable searches.

2.2(b) The arrest and detention were unlawful.

The Fourth Amendment protects individuals “against unreasonable searches and

seizures.” U.S. Const. amend. IV. A person who is arrested without probable cause and without a
warrant has been subject to an illegal arrest that violates the Fourth Amendment. See
e.g., Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th Cir. 2012). An arrest occurs when “by means
of physical force or a show of authority, an individual's freedom of movement is

Cir. 2003) (holding that punitive actions by the city’s mayor against plaintiff, including the
issuance of parking tickets, although “typically only petty offenses, not even misdemeanors[,] ...
have concrete consequences[,]” and therefore satisfied the second element of the retaliation
claim).
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restrained.” Romero v. Story, 672 F.3d 880, 885 (10th Cir. 2012) (internal quotation marks,
alterations, and citations omitted). In particular, the restraint must make it “such that a reasonable
person would have believed he was not free to leave.” Florida v. Royer, 460 U.S. 491, 502
(1983) (plurality opinion). “Examples of circumstances that might indicate a seizure, even where
the person did not attempt to leave, would be the threatening presence of several officers, the
display of a weapon by an officer, some physical touching of the person of the citizen, or the use
of language or tone of voice indicating that compliance with the officer's request might be
compelled.” United States v. Mendenhall, 446 U.S. 544, 554 (1980). It is clear based on the facts
and circumstances of this case that they were arrested.

A warrantless arrest violates the Fourth Amendment unless it was supported by probable
cause. Fogarty v. Gallegos, 523 F.3d 1147, 1156 (10th Cir. 2008). “Probable cause exists if facts
and circumstances within the arresting officer's knowledge and of which he or she has
reasonably trustworthy information are sufficient to lead a prudent person to believe that the
arrestee has committed or is committing an offense.” Romero v. Fay, 45 F.3d 1472, 1476 (10th
Cir. 1995) (internal quotation marks omitted). Based on video evidence, the officers on-scene did
not have probable cause (or even reasonable suspicion, for that matter) to believe that Plaintiffs
were committing any crime. This is supported up by the fact that no charges were ever filed and
both Plaintiffs were released.

Further, “[i]t goes without saying that a government official may not base h[is] probable
cause determination on an unjustifiable standard, such as speech protected by the First
Amendment.” Mink v. Knox, 613 F.3d 995, 1003 (10th Cir. 2010). It is clear that Plaintiffs’
arrests were predicated on his First Amendment activity. Since this activity cannot form the basis
for arguable probable cause, all officers on-scene are liable for the violation of Plaintiffs’ Fourth
Amendment rights. Neither will be entitled to qualified immunity as the right to be free from
unlawful arrest unsupported by probable cause is clearly established. See e.g., Dunaway v. New
York, 442 U.S. 200, 207 (1979); Cortez v. McCauley, 478 F.3d 1108, 1149 (10th Cir. 2007).

3. Conclusion

Based on our investigation and evaluation of the facts and circumstances of this case, we
have advised Plaintiffs that they have compelling claims against both the City and County of
Boulder, and the involved law enforcement officers, for their violation of Plaintiffs’
constitutional rights. Plaintiffs are determined to secure a fair resolution of these concerns. They
are not, however, averse to doing so short of the commencement of formal legal proceedings. If
you are interested in pursuing that avenue, please contact me by the close of business on
February 8, 2019. I look forward to hearing from you.

Sincerely,

KILLMER, LANE & NEWMAN, LLP

s/David Lane

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David A. Lane