Do me a favor and just get out of where we're working and you can totally >> I'm not interfering. >> He had the ability to record audio from where he was initially standing. >> But that maybe that's a red herring. >> Can you please move forward, sir? >> No. >> Can you please move forward? >> That's not the point. The point is the right to film law enforcement in public. >> Do you understand what I'm saying? >> Do you understand what I'm saying? >> Welcome back. John Domen is being criminally punished for exercising his right to record the police in public. >> To the lackluster channel. In July of 2022, I covered a story sent to me by Flathead County Audit. Shawn, the channel's owner, was riding his bike when he witnessed a traffic stop in Callisbell, Montana. For several minutes, he filmed without issue, but the officer who initiated the stop requested a backup unit. Officer Mania raced to the scene. Where's the fire, officer? No lights. Going 40 miles an hour. [ __ ] First Avenue East. Runs over the curb. Here we go. We got two on scene. >> Hey, brother. I don't mind if you >> Yep. That's what I'm doing. First amendment protected activity. >> You're what? >> First amendment. First amendment protected activity. >> Right. I agree. Thanks for respect. Do me a favor and just get out of where we're working and you can totally I'm not >> interfering from like right over here by this tree. Okay. >> I'm not interfering. >> Okay. I appreciate it. >> I need to be able to record audio. >> I'm sorry. >> I need to be able to record audio. >> You can. You can record it from right over here. Like I said, the fact that you're standing here, >> I'd like to stand right here. >> Okay. Well, you can't. >> I'm on public property. It's a sidewalk. >> Not interfering. >> Do you understand what I'm saying? >> Do you understand what I'm saying? >> My engagement with you is distracting me from this. >> That's your fault. That's not my responsibility. >> Can you please move forward, sir? >> It's important to note that officer Managlia tells Shawn to move forward just before knocking his camera to the ground. Can you please move forward, sir? >> No. >> Can you please move forward? >> While stepping backward, officer Managlia grabs Shawn's phone, shuts it off, and throws it to the ground, then shoves him. Shawn nearly topples off his bicycle, but regains his balance. Calls Managlia a tyrant and says that he intends to sue. The officer then arrests Shawn for obstructing a peace officer, and impounds his bicycle. According to Shawn, the bike remains missing. The case stems from an incident in 2022 when bicyclist Shawn Dolman recorded a traffic stop on his cell phone. Dolman's attorney claimed he was punished for exercising his right to record. >> In March of 2023, a jury convicted Shawn of obstruction. The district court affirmed on appeal. >> Domen's attorneys argued the officers treated him differently because he was recording, >> but he then sought review in the Montana Supreme Court. The ACLU of Montana is also backing Dolman's challenge, filing an amikas brief arguing that both the Montana Constitution and the First Amendment protect the public's right to record police from traditional public forms like sidewalks. Finally, on October 1st, 2025, >> the Montana Supreme Court heard oral arguments today for a call case involving the right to film law enforcement in public. >> What follows are the key exchanges from that hearing. Shawn Domen is being criminally punished for exercising his right to record the police in public. Shawn filmed a routine traffic stop from a public sidewalk in broad daylight. That is conduct that is fully protected under both the Montana and the United States Constitution. And there are four key points that I'd like to make here today. The first point is that there just is not sufficient evidence in the record that Shawn knowingly hindered officer Wigh's investigation. In fact, Officer Wy testified that Shawn did not hinder his ability to issue the citation. And that is on page 67 of your transcript. The second point is that Shawn was targeted because he was recording. Officer Manalia was called to the scene because Shawn had rolled up filming and Officer Manalia immediately ordered Shawn to back up because he was recording. But Shawn's filming was not interfering. and officer Manalia cannot target Shawn for engaging in protected conduct. The third point is that even if this court believes that Shawn was ordered to back up for reasons other than the fact that he was recording, his rights were still violated. The state's after the fact justification of officer safety is not supported by the record. And officer Manalia could have just kept an eye on Shawn. Like Wy testified he called him to do, but instead officer Manalia ordered Shawn to back up so far that Shawn could not hear any audio. Council, could I, while you're on this point, I think it's really critical. Um, how do we set aside a jury verdict on these facts? So you asking us to as a matter of law say that there was insufficient evidence when a jury has considered this? >> Your honor, I think there's two key points to that question in terms of the sufficiency of the evidence argument. Um the jury was instructed in instruction 11 that even if it wasn't a reasonable restriction that that that it was not a defense to this that even if officer Manalia was not acting lawfully that was not a defense in this charge. So the the jury had no choice but to convict Shawn. >> There was no objection to that instruction. Correct. The reason this has not been brought which I think is the heart of your question as a instructional error issue is because that is an accurate statement of the law. However, it's the ambiguity in the law, the language between an unlawful order and official capacity that allows for its unconstitutional application. So, but that would still then by definition be an as applied challenge which has to be preserved. Your >> honor, and it's our position that this was in fact preserved. It was brought to the municipal court's attention that Shawn was engaging in constitutionally protected conduct. And we saw that in the discussion about instruction 13. And that instruction is problematic because the jur determined that um it was a reasonable time place and manner restriction before ever hearing the evidence. First of all, the instruction was proposed by the defense instruction 13. And I don't think as I read it, it didn't seem to me that the court was instructing the jury as a matter of law that officer Manalia's direction was reasonable. The court was instructing that reasonable time, place, and manner restrictions can limit the first amendment right. And it seems in most cases that have looked at this in order to back up is a time, place, and manner restriction. And so did the instructions leave room for the jury to determine that this was uh an unreasonable time, place, and manner restriction. Instruction instruction 13 was uh agreed to by defense council but with some additional limiting language from Glick Vaniff that said um that officers are expected to engage or expected to endure a significant amount of criticism. I don't disagree that the instruction was not um correct or I would say that excuse me if we are going to instruct the jury that Shaun's first amendment right could be restricted by reasonable time place and manner restrictions. Then we also needed to instruct the jury what makes a reasonable time, place and manner restriction because that has been that is a clearly defined legal concept. And what that means is that first the restriction cannot be tied to the content. So it cannot be that Shawn is being restricted because he is filming. The second part of it needs to be that the state needs to have a substantial government interest. The third aspect is that it needs to be narrowly tailored and leave open ample forms of communication. What was inherently problematic about instruction 13 is that the jury was left to determine what is reasonable and that was not defined for the jury. And there is, you know, precedent from this court in city of Whitefish versus Oshanaugh that a court that a jury can make a determination of what is constitutionally protected conduct. But in that case, this court held that the jury could determine what was fighting words, but specifically pointing to the fact that fighting words was clearly defined for the jury. And that didn't happen in this case. But even more problematically, they were then given instruction 11 that said even if it was a reasonable time, place, and manner restriction, that's not a defense to this crime. And so that's why this is not just a an instructional issue. This is an asapplied constitutional challenge because Shawn was not able to assert his first amendment protections as a defense to this crime. So how how do we char how do we instruct a jury in a case like this? The holding of the court first needs to be that the obstructing charge cannot apply to constitutionally protected conduct and that would empower you know that would provide some guidance for the courts down below. I'm not sure that instructing the jury is always the right option. I think it is an option, but we certainly need clarification from the court that first subsection one of the statute does not apply to constitutionally protected conduct and subsection two does not abregate defendants constitutional protections. >> Well, but you can have constitutionally protected conduct and be obstructing. I mean, if he was standing between if he wanted to position himself between Mr. Bearchild and the officer while he's recording, I mean, the recording is is without question constitutionally protected, but he's still I don't think we'd be here. He'd still be obstructing. So, just by virtue of the fact that you're engaging in constitutionally protected conduct does not necessarily protect all the actions that you might be taking. If the conduct that we are evaluating in your example is him inserting himself between the officer officer and the driver. There's a question as to that whether or not that action would be expressive conduct that is actually constitutionally protected. certainly the the right to record, but that doesn't give you cart blanch authority to be in your example up, you know, inserting yourself in an investigation. Now, that just isn't the facts that we have here. And I I agree that there could be different analyses in different situations, but the facts here are that Shawn is standing on a public sidewalk 10 to 15 feet away from the investigation and not inserting himself. In fact, three times he said he would not insert himself into the investigation before being told while being told to back up. And I think that analogy is much closer to, for example, someone asserting their their their right to Miranda, for example, being asked to answer questions and being told, you know, and saying, "No, I'm not going to answer." and then repeatedly being told to answer to answer to answer and standing strong in behind that constitutional right. They can't then be punished for exercising that constitutional right. And that's really the conduct that we have here. So that's the question is where's where's that line going up with Justice Shea's question the line of too close where the officer is saying you're interfering because the officer here going to this point of he did did he knowingly enter the investigation? The officer told him you're distracting me from my ability to do the traffic stop or support my partner doing the traffic stop. So he has constructive notice as to the effect that he's causing even if he's not person, you know, personally intending that. >> That's my concern is why is it unreasonable for the officer to say you can keep filming, you just need to go back to that tree because that's what happened. I think if it was a set of circumstances where he said you can stay here but you can't film again, we'd be on our we'd have flipped that fact pattern on its head. So why can't we say officers have the ability to establish a safe buffer around their lawful enforcement activity with the other person so long as he lets him film from a different distance? A >> few points your honor. The first point is that there can be a line, but the line that is created needs to be the same for someone who is filming versus someone who is not filming. And that's to say that if somebody had been standing in their front yard gardening that day, would they have been told they needed to retreat to their house? The only thing that officer Manalion knew when he ordered Shawn to back up was that he had been called to the scene because somebody had rolled up filming. The second point is that just creating a minor distraction to an officer does not rise to the level of unprotected speech. And there is city of Houston v. Hill is a case directly on point from the United States Supreme Court. And in that case, uh, a person was watching their friend be arrested. And to intentionally distract the officers, he said to the police, "Hey, look at me. Why don't you pick on somebody your own size?" And the Supreme Court said, "That's protected speech." These momentary glimpses of distractions do not rise to the level of falling outside protected conduct. >> In that ca I I guess I'm I'm going back to my first question which is isn't that a jury question? Your honor, it's the state's obligation to be able to identify what conduct in this case were they prosecuting that did not fall within the realm of protected conduct. And they can't identify conduct in this case. But even if even if they could, it's more pro it's continues to be problematic that we certainly don't have any assurance that the jury relied on that conduct because of instruction 11. >> You're not pointing to instructional error. >> Your honor, I'm not pointing to instructional error. You're correct because again, instruction 11 was an accurate statement of the law. It's the ambiguity within instruction 11 within subsection two of this statute that allows it to be unconstitutionally applied to Shawn. That prevents him from being allowed to raise his constitutional defenses in this case, >> which is what gets us back to this being an asapplied challenge, which means we have to exercise plain error to review it. Your honor, if this court feels that this claim was not preserved through the conversation that defense has council had with at the municipal court level, then yes, they would have to exercise plain error. And there are three tests under plain error review that Sean would only have to meet one, but we can meet all three in this case. And the first is that this is a manifest miscarriage of justice. And what I mean by that is that Shawn was exercising a constitutional right. But it wasn't just a constitutional right. It was a constitutional right that the courts have widely accepted serves a public interest. And it it's not just any public interest. It's the public interest of keeping transparency and accountability within the government and within policing specifically. >> But on that we have three law enforcement videos. We don't have Mr. Dolman's video. So there's a lot of transparency already happening here. The guy that was pulled over and given a ticket for driving suspended because he was subject to jail had an attorney. So I mean there the system is providing the transparency that that's where I'm struggling with this guy shows up on a bicycle and and appeared to me to be kind of a belligerent attitude almost like a what do I have to do to get arrested in this town type of attitude and and that's my concern. Was he actually there doing transparency or was he there intentionally trying to escalate it to in fact undermine the authorities's ability to do a traffic stop? Your honor, in terms of him exercising his constitutional right to record, I mean, I can't speak to his subjective intent, but he did three times state that he would not interfere after being approached by officer Manalia. Going back to the the purpose of whether or not this is a manifest miscarriage of justice, which is I think where you're struggling. >> Yeah. is that it also calls into question if it's a manifest miscarriage of justice even if there was still accountability within policing his ability to create some transparency is being you know hindered by the government but let me let me take us to the second prong because I think that will also speak to your question which is to say that it calls into question the integrity of the process and Glick V versus Kiff I think has a a quote that is uh right on point with this and it says the freedom of expression has particular significance with respect to the government because it is here that the state has a special incentive to repress opposition and often wields the most effective power of suppression. That is particularly true of law enforcement who are guaranteed substantial discretion that they may may be misused to deprive individuals of their liberty. And what they're saying is the state and police officers specifically are uniquely situated to use the criminal justice system to repress free speech. And if we allow that to happen at speech that is specifically targeted towards transparency in policing that calls into integrity the entire process. And the last prong is the fundamental fairness prong. If we leave un and whether or not we would leave unsettled the question of fundamental fairness and I again think this brings us back to subsection two. If we continue to leave subsection two ambiguous, meaning that it's just okay for the state to argue that constitutional rights are not a defense to this charge, that really leaves open a question of fairness as to how people assert their constitutional rights against these charges. >> It's Well, I don't want to use your time. I'll ask him. Go ahead. Um, I'll just point on subsection two. One other point I' one other thing I'd like to point to is that the argument in my briefing is that it should apply only when there are instances of force or the threat to use force. And I would point this court to state v. Howard where it considered a similar argument in the uh context of the resisting arrest statute and said in that case that subsection 2 was intended to reinforce the notion that uh force cannot be used. >> That was us adopting a code from another state, but it didn't show that we adopted that committee's comments. We've seen other instances where we've not followed the exact interpretation from a from a commentator or a committee uh from California and from Illinois. So plain text of that statute doesn't necessarily support your argument. >> The state v. Howard case I'm citing just to be clear is a Montana case where this court interpreted um >> the resisting arrest is different statute. Correct. Um the commission comments from the Montana law support directly or site excuse me directly to the Michigan comments. Um so that is why I think that holds authority or at least persuasive authority in this context. I just want to use my last few minutes to say that this stop was not unusually safe. In fact, Officer Wy testified that he believed this stop was just a normal traffic stop. And if we take to the state's position that there is an undermining or an an underlying threat of officer safety in every traffic stop, we run the risk of abolishing the right to record in every traffic stop. It is an extreme position to say that because of a a routine traffic stop at 11:30 in the morning where somebody was pulled over for a blinker violation that officers can order somebody to go so far back that they are three sedans back. It's questionable whether or not they could meaningfully record to begin with. And they certainly can't hear audio. And we know that audio is a necessary element of the right to record. That is ACLU versus Alvarez. It says it is a necessary component of the right to record. Even if the court believes that Shawn was ordered to back up for reasons other than filming, they still need to explain how this was a narrowly tailored restriction and how they left open ample forms of communication. the the the elimination of audio is where they fail on the ample forms of communication. But in terms of being narrowly tailored, they have never answered the kind of obvious question, which is to say Manalia was called to the scene, according to WY to be an extra set of eyes and to watch Shawn. Why couldn't Manalia stand next to Shawn and watch Shawn? Why was the restriction the most least restrict restrictive ne the the least restrictive option is to make him go back some 3550 ft and that's where they fail in terms of constitutional scrutiny. >> Yeah. And that's the confluence of a the criminal aspect versus the civil rights aspect. And I don't know when we've ever in a criminal context apply or interjected the strict scrutiny analysis. Um but I don't want to well perhaps I'll sit down then at this moment. Uh, I will say that it is a it is incumbent upon the state to point to conduct that is not constitutionally protected as the basis of the charge to meet the voluntary act element. Right? The reason that that officer Manalia indicated that he wrote this citation was because he said Shawn refused to back up. He said that um he Sean he testified that he issued the citation because of Shawn's refusal to leave. Shawn was still backing up when he was recorded or when he was arrested, excuse me. But also Shawn does not have the obligation to abandon his constitutional protections. He's not under a duty to listen to an unlawful order and that comes from the voluntary act element. >> So we interrupted your preview at the outset. Your point4 you listen you said you had four points. You didn't even get to point4. I just can you tell me what it is. I'll write it down and we won't we won't punish you on time on this. >> Uh my fourth point and which I say think is is truly the most critical and and going to Justice McKinnon's question is that constitutionally protected conduct may not be the basis of the obstructing charge. >> Okay. >> Thank you. >> Thank you, honors. >> Good morning, Mr. Chief Justice. And may I please the court Matthew Seagle for the Amiki. >> Uh, for two reasons, the jury in this case was authorized to convict Mr. Domen based on a legal theory that was invalid. Not as a matter of fact, but as a matter of law. >> Can you move your microphone up a little? >> Oh, sure. Certainly, your honor. Uh the jury was instructed was authorized to convict Mr. Domen based on a legal theory that was invalid as a matter of law. And so for that, for those two reasons, if there were ever a case in which to exercise this court's plain error authority to correct an unconstitutional conviction, it would be this case. Not just to vindicate Mr. Domen's rights, but to give appropriate guidance to trial courts so that they can protect the rights of all Montans. First, by commanding Mr. Domen to obey a no recording zone that was so large that it would have prevented him from hearing an event that he had a constitutional right to record. Uh, the city imposed upon Mr. Domen um a a a infringement of his constitutional rights that warrant strict scrutiny both under the Montana Constitution because it impermissively interfered with a fundamental right and under the first amendment because it was a contentbased restriction. And second, as councelor for Mr. Domen alluded to just now. Under any level of scrutiny, whether it's strict or time, place, and manner, the um city cannot justify the instructions that were given to Mr. Domen. And so, as a matter of law, he could not permissibly, constitutionally have been convicted for failing to follow those unconstitutional commands. And that's because the city cannot explain why instead of standing next to Mr. Domen or telling him to stand stay put or telling him not to leave the sidewalk, Officer Managlia had to in immediately instruct him to back up so far away that he wouldn't have been able to hear the event and grab the phone out of his hand and arrest him while he was backing up. there's th that those set of actions simply did not leave available the exercise of the very right that Mr. Dolman was supposed to have. >> So going to your first point that's that seems like potentially a very very broad proposition that uh someone can go to any law enforcement scene and record and they have constitutional right to do that. And one can think very quickly I've I've been on scenes in fact where they had to move reporters out of the way. One can think of how that could be abused. Where's the line here? Because uh the officers are saying we're uncomfortable with him being this close, distracting us, or whatever. Where's that line? How do we figure that out? >> Sure. Um it's it's an understandable question, Mr. Chief Justice. And I and I try to answer that, I also want to um I guess loop in the questions that Justices Baker and McKinnon were asking about what what could the jury have been told here in this case? And in essence, I think the answer to your honor's question is there's two basic sets of instructions. If we think of the the command that the officers gave here as like police tape, um the the the police tape Adam in every single case cannot say no recording within this line. It has to treat everyone the same whether they are recording whether they're exercising constitutional right or not. They certainly can't treat people worse, require more distance from them because they are exercising a constitutional right. And the second thing is, and this is really uh where the your your honor's question is pointing me, is how far away can the police tape be? And it cannot be the case that in every traffic stop, the police get to uh put up traffic uh a police tape, prover proverbial police tape that would take people all the way outside of an ability to record anything. And we have se we have cited cases all over the country including a case sharp from the fourth the federal fourth circuit where someone was recording their own traffic stop and if the police could do that as a matter of course then no one would ever be able to record their own traffic stop let alone someone else's. So what I would say to you, your honor, is that if there is a situation where someone is rushing a crime scene, interfering, um doing things that that bring their conduct, as Justice Sheay was pointing out, you se separate from their act of constitution, their exercise of their constitutional rights, if they're getting in the way, if they're literally screaming in the ear of a police officer, um those would all be circumstances in which an sort of this kind of ad hoc police tape command and could maybe be set up. But here on this record, the court doesn't have to confront those difficult questions really because there was nothing that Mr. Domen was doing that even arguably brought him close. He was not only standing but standing on a traditional public forum. And the thing here's where I would also add that in wherever this court chooses to draw the line about this proverbial police tape, the Montana Constitution should have something to say about that. Um, this court has in its recent cases has emphasized that if there's something specific about the text or the history of a Montana state constitutional provision that takes it beyond this the the breadth of the US Constitution that would be meaningful to the court. And here we have both of those things. >> So, I have a hard time though with that record because you look at it, he was actually the closest person to the officers. There were other bystanders that were farther away that didn't draw their attention. And so he he is the one that they're asking to move. They're not asking him to stop recording. They're asking him to move. And so that's what I'm trying to figure out is why can't we say, okay, experienced law enforcement officer, you're telling the guy, you're distracting me from my duties. Please move so I can do that. >> So understandable, your honor. It it would be it would we would the record would certainly be clearer if there were if there had been like a hundred bystanders and we could more easily sus out um uh whether Mr. Domen was in fact treated as the same as everyone else. But I here's what I would say. So as a threshold matter um I agree with with council for Mr. Domen that the baseline here is city of Houston versus Hill which dealt with a statute that made interrupting an officer a crime and said that speech simply cannot as a matter of constitutional law ever be made a crime. So then we turn to what was going on here and for this court to and I would say anything this court might say was not communicated to the jury in this case. So what wherever the line is the jury was told that it was the guardian of that line as as a matter of fact and that just can't be right. There is a constitutional line somewhere that the jury was not told about at all. Let's talk about what that line is. So, so on this record, for the court to to for for the action in this case to be deemed content neutral, for us to say that the that the police tape didn't say no recording, it was just police tape for everyone. The court would have that the record would have to support a conclusion that the police would have taken the exact same actions calling for backup um immediately demanding that McDomen back up. Um knocking a phone out of his hand um and arresting him while he was resting that they would have done all of that if he had been photographing birds instead of recording the police or if he had been walking a dog instead of exercising any constitutional rights. And I don't think the record supports that. But regardless, even if the court were to conclude as a matter of law that the proverbial police tape in this case applied to equally to everyone, we are still left with the problem that as a matter of fact and as a matter of the jury instructions, there's really no reason to believe that the police had to take the action of setting Mr. Domen so far back that he couldn't even hear and possibly wouldn't have been able to see this event. So I understand your honor, there are certainly going to be difficult cases in in in situations where um someone may be for non-spech reasons intruding on on the police. That's just not this case. C >> council, can you help us go forward in terms of these types of criminal charges? How how do we help trial judges instruct juries correctly? >> Certainly are. Um >> unless there's something else more important to talk about. >> Oh, whatever you want me to talk about is definitely the most important thing to talk about. So, I'm going to talk about that. Um so, I think that there are two basic sets of instructions that this court could give to to trial courts that trial courts could then give to um uh juries. One is um except in the most extreme of circumstances, there is never going it will never be permissible for the police to require more distance from people filming than from people not filming. That's number one. Number two, um it it will quite often be the case that trial courts should as a matter of law decide what is a reasonable time, place, and manner restriction, even if there is um uh a reason to believe that it was a contentneutral application. So that could be done through jury, through pre-trial motions to dismiss, etc. And that's why you have before you many cases in which courts resolve that issue, the issue of time, place, and manner at the appellet level. But even assuming there's a role for the jury to play on that, the jury should be told and wasn't told here that even if the restriction was contentneutral, that um the Houston rule, city of Houston rule applies that you can't be criminalized just for interrupting and that the right to record applies. And so that that in deciding whether the restriction was reasonable, they have to consider among other things whether it left open alternative channels to record the event. I see that I'm past my time. Happy to answer any other questions that the court may have. >> Well, I want to I want to put this question either for you or for you on rebuttal, but just so you know it's on my mind. Here's what I'm grappling with. Glick versus Eisenber. Okay. Eisenheimer, he's arrested for obstructing a peace officer on a traffic stop. No first amendment activity. Glick arrested for only first amendment activity. No obstructing. Okay. So, those are the two bookends that I see. If this is a bowling alley, those are the two gutters that I'm trying to stay out of or at least analogize to. So, you can answer that on rebuttal if you want, but just just so you know, that's on my mind. >> Thank you. Not to be rude to you, but I've got to try to save as much time as I can for my colleague and >> Well, we'll give you two more minutes, Nor. >> Okay. Okay. Thank you very much. >> Thanks. May it please the court. My name is Thaad Tudtor, assistant attorney general with the Department of Justice. And I am asking this court to affirm Dolman's convictions because there was more than sufficient evidence from which any rational juror could conclude the state had proven the elements of the crime beyond a reasonable doubt. Second, because Dolman has not met his burden to establish that planer is warranted to review his unpreserved constitutional challenge. And lastly, uh because even if this court invokes plain air review and analyzes this constitutionally, this involves a reasonable time, place, and manner restriction on the right to film police officers. Now with respect to the sufficiency evidence, there's one fact here uh that makes this case rather unique compared to other authority uh on this issue and that is that Dolman did in fact try to communicate with the occupants of the stopped vehicle before anything was said to him. Officer Willie saw this and Officer Willie testified and this is a quote on the transcript on page 56. I don't know what he is doing there, what his intentions are. He starts communicating with the people inside the vehicle. At that point, I've got a situation I like more than one set of eyes on. Now, the state would contend that is a reasonable conclusion. The logic there is somewhat impeccable for an officer who's concerned with public safety. And then let's look at what the the actual restriction that comes later. First off, consistent with what Officer Willie testified, Officer Mali explained, and again, this is a quote. First, I mean, we're responsible for public safety. So, if we have somebody that's stationary next to a traffic stop, generally for their safety, we tell them to move along so nobody gets hurt. And in fact, the testimony, the evidence establishes that that's what Officer Manali encountered when he arrived at this stop. He sees a guy that in his experienced opinion is too close to the traffic stop. Uh now I'd like to go back to officer be before I get to the actual quotes of the conversations between officer Manalia and Mr. Dolman. Officer Malia testified I explained to the defendant several times that filming was not the issue. It was his close proximity to our stop and the fact that he was distracting me from officer Willy's investigation which led to officer Willie being distracted. That's on the transcript on page 127. That is exactly >> but councel officer Willie testified he was not that that there was no distraction. He might have in the beginning but during the the stop >> I don't recall officer Willie saying there wasn't a He was not obstructed. >> He testified, "I had to exit my car." When he heard the the the raised voices, and I think if you watch the video, you'll see it's when Dolman says, "I'm going to sue the [ __ ] out of you now." And repeats it. Officer Willie Hurly exits his his squad car. At that moment, you've got obstructing legal process. He's taken his his uh attention completely off the traffic stop. Here's where you get to the Eisenimmer case. In fact, I'd like to focus on Eisenimmer for just a moment. Uh, paragraph 11 of that case is directly applicable here. I I think you could basically just switch the names of the investigating officer and the defendant. >> I think that was out of the ninth, right? >> Yes. Uh, excuse me. >> Eisenheimer was our case. >> Yeah. >> Yeah. It was out of the state of Montana. Uh, >> out of the ninth judicial district court of Montana. I sat on it, but >> Well, the ninth, you know, there's a lot of ninths out there. Now on >> our ninth is a lot more important. >> On to the quote. Your honor, Hullbrook was obviously in the middle of a traffic stop. That's the investigating officers. When Eisen Zimmer approached him, Hullbrook told Eisen Zimmer he was busy and repeatedly instructed Eisen Zimmer to keep walking and advised him that he would be arrested if he continued to ask for a ride. The score went on. Prior to arresting Eisenimmer, Hullbrook's attention to the performance of his duties, i.e. the traffic stop, was diverted by responding to Eisenimmer's repeated request for a ride. Now, after pointing out that Eisenimmer's uh subjective intent really is no part in the analysis, this court stated, "The issue is whether Eisen engaged in conduct that impeded the performance of Hullbrook's lawful duties under circumstances that made Eisen Zimmer aware that it was highly probable his contact, his conduct would impede the performance of those duties." Again, you can switch the names. Make Holbrook officer Manalia and make Eisenimmer Dolman. That applies directly to the facts of this case. >> The question, Go ahead. If Manalia's demand that Dolman move farther away was unreasonable and did prevent him from hearing the encounter, is it your position that the jury instructions afforded this jury any opportunity to acquit him? >> Uh, it did, your honor. In fact, there are all these arguments that he's been procluded from asserting his First Amendment rights. Well, he did assert his first amendment rights and the instruction, >> but did he I mean assert and exercise, I guess, are the distinctions that the defense is making. So, how did the instruction allow the jury to agree with him if he that he might have been prevented from exercising his first amendment right? >> Okay. I think what's really important to understand is a an underlying fact to all this was at the trial level. This analysis under subsection two of uh 457302 became completely irrelevant. In her closing argument, Dolman's trial attorney said, "We aren't saying the police acted illegally. We're saying he didn't obstruct." Now, in this context, by demanding a jury trial and not bringing a motion to dismiss based on a constitutional as applied challenge, that argument has in fact been waved. >> So, what was the avenue to Justice Baker's question? What's the avenue for the jury to find the quiddle here? >> Well, that avenue was simple. either the officer's request was unreasonable or uh Dolman cooperated with him. I think the officer watched a videotape and what they determined was the officer approach was not unreasonable. And I don't know why they would. Again, I'm I'm I'm being a little obnoxious here with the quotation, but I think it's important. But but excuse me, if if they determined that it was unreasonable, I mean, didn't instruction 11 tell him that I mean, even if the officer was acting unreasonable or illegal, that's no defense. >> Well, his attorney said, "We don't need the defense." He said, "We're not alleging the officers acted illegal. They're not alleging a constitutional violation at the trial level." And by not bringing that up and giving the trial court an opportunity to address that uh particularly uh give the state an opportunity to augment the record. I think as it is there's sufficient evidence on the record from which one could conclude this was an entirely reasonable uh request by officer Manalia and and I'd like to get to that now. his request upon approaching uh his the first words out of his mouth were, "Hey, brother, I don't mind if you film, just do me a favor and kind of go a little bit of ways." Oh, okay. That was what he said. That was how he said it. Dolman responds, "First amendment. First amendment protected activity. The office has some problems." Hearing him, he finally hears him. He says, "Right, I agree. do me a favor and just get out of where we're working and you can totally film from right over here by this tree. Okay, those words were spoken clearly, concisely. There is no way Dolman didn't hear those words. There is no plausible way he didn't understand the words. He responds, "I'm not interfering." Well, Officer Manalia still doesn't escalate uh to the point where he feels like he has to use force. He says, "Okay, I appreciate it. It's at this point Dolman brings up the opportunity. Uh he he says, "I need to be able to record audio." Couple points on this. First of all, I don't think there's any record evidence that he was able to accurately record audio from any position he's in at any point during this videotape or this encounter. No evidence. Maybe that could have been hashed out a little bit had he filed the motion in district court and the officers could explain uh some of those things. Didn't he didn't the officer testify? He asked him to move back to a spot where the officer at least couldn't hear. So there was some >> indication that neither could Mr. Dolman. >> Yes. Hindsight being what it is. Officer Malia testified. He looked at film. He said he I think his words were probably not. He couldn't hear what was going on. Dolman never made that allegation. the fact his his claim of wanting to record audio was nothing more uh than pretext to be able to explain to the officer his knowledge of first amendment rights. >> But where's where's the line? I asked I asked the other side, how close is too close? And Justice Shay asked about you can't be standing between the subject and the officer, but where is too far? >> Well, the reason we don't have that answer in this case is because the state wasn't allowed to augment the record. It would have been nice to know, for instance, does Callispo Police Department always have backup officers to come deal with people who want to inject themselves into a traffic stop? My guess is probably not. Certainly, there are other departments where you're never going to have backup available to come and assist with somebody who wants to inject and impose themselves on a traffic stop. >> Coun council, do you feel that recording a stop is injecting yourself into the traffic stop? recording the stop as close as he was was injecting himself into this traffic stop. That was the judgment of the officer at the scene. That was a judgment I would argue the jury necessarily found to be reasonable when he act him asked him to backed up back up making clear he had no problem with him taking videotape of what the officer doing. >> Didn't officer uh the the stopping officer testify that didn't really hinder his ability to issue the driving citation? my recollection of his testimonies, he he testified exactly. He said, "This took my attention completely off of the traffic stop." Yes, he was able to eventually issue the citation, which is the exact same scenario you had in Eisenimmer, but that's not the issue. Legally speaking, the jury was tasked to determine whether he obstructed, hindered, or impaired the investigation. That is what they watched him do in real time with their own senses. No. >> So on crossexamination, he said, "Did you believe he impaired your ability to issue the traffic citation?" And his answer was, "I don't think he necessarily hindered my ability to deliver a citation." No. >> To deliver the citation, but he's doing an investigation of this vehicle. You can see in the videape, officer uh Willie was genuinely concerned about this car. We can laugh it off and say, "Okay, maybe dangerous things happen during traffic stops in California." That's not a realistic assessment. He shows up. This vehicle has tinted windows. He described it as a limousine tint. It pulls over the drive, the registered owner suspended. Officer Willie, and you can see it. He knocks carefully on the window, steps back. He's genuinely concerned. He acts professionally, diligently, and competently, if not downright friendly, throughout this interaction. there would be absolutely no reason for him to need to hide this audio and video recording he's making of this completely uneventful stop. Uh but then he sees Mr. Dolman try to communicate with the occupants of the vehicle. >> Yeah. What did that hand signal mean? >> Huh? >> What did the hand signal mean? >> Dolman testified or excuse me, Officer Willie testified he understood it to mean he that he was trying to get the ocus' vehicle to roll down their window. I don't know of another plausible interpretation. I I think that interpretation was certainly reasonable and credible. Now we isn't this more like I mean you keep drawing the analogy to Eisenimmer, but Eisen Zimmer involved one officer who a drunk keeps asking for a ride home and eventually got one indirectly. But isn't this more like Cameron where you had the two officers and it is the one officer who doesn't he We held in Cameron that this person who kept refusing instructions from the one officer did not interfere with the other officer's performance of his duties. Isn't that a more analogous scenario? >> I would argue this thing you've seen feature in Cameron is that that defendant had no idea there was he was interrupting anything. He was going into a restaurant. didn't know his friend was being investig. The difference here is there is no doubt. I mean this is the whole purpose for Dolman approaching the scene in anyways is that these approaching the scene anyways is that these officers were engaged and the official performs to their duties. He wanted to become part of this stop and you see that immediately as the prosecutor pointed out. He pulls up if he's there just to document this stop or just to take videotape he doesn't need to speak to the occupants of that vehicle. And again, had the motion to dismiss for a constitutional a constitutional as applied challenge been brought in district court, we maybe might we might have a almost certainly would have a more sufficient record explaining the specific concerns that officers were were watching unfold in real time. So maybe that's a good segue to talk about plan error because I think the defense's argument is that um let's assume because the record does support that officer Manalia acknowledge that where he was telling Dolman to go he wouldn't have been able to hear either. He said he didn't know maybe his phone would have the capacity to record but he acknowledged he wouldn't be able to hear. So assuming that's the fact, the argument is that the instruction directed the jury that that didn't matter because the defendant can't disobey an even unlawful order. So I think that gets into the realm of plain error because they didn't present that argument below. So maybe you could address that. >> Well, uh, both the ACLU and Dolman identify the constitutional right implicated for plain air, right? He has a constitutionally recognized right of freedom of speech, freedom of expression to record officers in the performance of their manif in the performance of their official duties. What I would contend that neither side uh really explains is h how that results in a manifest miscarriage of justice. Uh Dolman's argument is well Sean has a first amendment right to record and that hasn't been disputed. That hasn't been disputed by the arresting officer. It's been acknowledged from day one he does in fact have a constitutional right to record. However, where's the manifest injustice when the jury was in fact instructed accurately accurately on the law? You heard that conceded. And then his attorney says, "We're not saying the officers acted illegally. We're saying he didn't obstruct." And the jury determines based on the evidence they had that they that he did obstruct. I think the argument that they made is that the state has to have some evidence beyond constitutionally protected conduct um that the basis of the charge can't be u that driven by him exercising his right to first amendment. >> No, the the basis of the charge was him refusing to move. >> Okay. So maybe you could be specific other than when the initial encounter with Willie, Officer Willie, what conduct can you point to that goes beyond that protected area of first amendment speech that would that would get past a sufficiency argument on the obstruction? Well, at the point Officer Willie uh felt obligated to exit his squad car to help his partner and take his attention completely off of the occupants of the stopped vehicle after it's been explained to him. >> Again, officer Willie only resorted to focusing his attention onto Shawn when his partner knocked his phone out of his hands and arrested him for allegedly obstructing. The assistant attorney general is trying to manipulate the event by arguing that Shawn obstructed by getting arrested for obstructing. It makes no sense >> that he is distracting the officer from this stop. So, he can't claim he doesn't know that um at that point that meets all the uh that proves all the elements. >> Was he already arrested? I mean, the officer Willie testifies that when he gets out of his squad car, he goes he's over there. He's going to just help him put the cuffs on. The the obstruction has already occurred before Willie exits his car according to Monaglia. >> Oh, I it happens almost simultaneous. Manalia. No, I Mania testified consistently with what I just said that that uh he explained several times the filming here wasn't the issue. It was Dolman's proximity to the stop. He wanted him to move farther away from the stop. I think a reasonable way to do that might be to ask, "Hey, would you mind just moving a little farther away for me?" >> Now, uh, >> not interfering with Willy's investigation citation. He's interfering with >> No, he's interviewing He's interfering with with Willy's investigation. That's what the evidence shows. That's what Willie testified to. That's what Officer Manalia testified to. by engaging in a loud, verbal, profane fight with an officer who's merely trying to ask you to back up and doing so in a manner that requires other officers to come and take their their focus completely off of the occupants of a stopped vehicle. Uh to focus on this individual who has no legitimate basis for being there at that point. Uh >> well, that's not true. his legitimate basis for being there is filming, right? The question is, >> so it isn't a matter of do you have a constitutional right to film. It's a matter of do you have a constitutional right to film, you know, in their hip pocket. That that's what we're trying to sparse here. >> Yeah, Shor, I I agree completely. Uh you have a constitutionally protected right to film the police officers in their performance of their official duties. Now, they actually covered it in jury selection during this trial. prosecutors like are there there times where you think that this might be an not be an absolute constitutional right? One of the jurors says well I think if you're infering interfering with the officer's stop that might be a point where uh that becomes a little too much something to that effect. Uh but but that's what the evidence shows here that >> the constitutionality of it is I mean we were talking about this for purposes of the you're talking about being able the state being able to augment the record and what have you. I mean, the constitutionality of his actions and and that issue at large, I mean, was always part of this. I mean, it was always an issue throughout. Correct. >> I understand what you're saying, but the issue of whether or not uh I'm sorry. >> It's all right. Um >> I think Justice Sheay's getting to the pres preservation of the error as a plane. Right. Okay. She said it better. >> Okay. I'd like to f point out a couple things with respective to plain air. First of all, this represents the argument on plane of air represents a complete shift in strategies. They argued below Dolman argued below. Police weren't acting illegally. I just didn't obstruct. Now they're saying, well, no, wait. The police did act illegally. They violated your constitutional rights. with with the gap between linking that to a manifest m miscarriage of justice comes in the instruction that was given by the district court at defense council's uh suggestion which accurately recites the language of glick v kov says a citizen's right to film the instruction that was given says a citizen's right to film government officials including law enforcement officers in the discharge of their duties at a traffic stop is a wellestablished liberty safeguarded by the first amendment. It is not a violation of the law to film a peace officer conducting official duties while enforcing the law. However, the right to record police activity is not without limitations. It may be subject to reasonable time, place, and manner. >> And then is the right of the police, not the right, but if you have a right to record and to record not only what can be seen, but also what can be heard. does requiring the person to move beyond what can be heard violate. And then when you have to comply with section subsection 20 of 457302 that it's not a defense that the law enforcement officer asked him to move beyond the point where he could actually hear what was going on. Doesn't that create kind of a tension that um implicates the fundamental rights that are at play here? And that also makes the instruction which matches subsection two um a facially unconstitutional application of the law. >> I'm sorry. You're in a facial facially unconstitutional. Well, that's what they're arguing. >> As a I mean, not as not facially as applied. I'm sorry. >> I apologize. Could you repeat the first part of the question again? >> If if you have a right to record, >> and you do. >> Okay. And and with that right to record, you have the right to record not only sight, but sound. But the officer asks you to move beyond the point where you can't record the sound. Then doesn't that create the tension where it a fundamental right is implicated? And yet we have a law that says it's no defense that law enforcement asked you to go beyond what the constitution would allow the law enforcement officer to ask you to go beyond. >> The officer asked Mr. Dolman to move back. >> When you're looking at me, the microphone's not picking you up. >> The officer asked uh Mr. Dolman to move back. He made it clear. He wasn't concerned with >> But then he also acknowledged that the point to which he asked him to move back was beyond what he would have been able to hear. He acknowledged that in his testimony, but as he's speaking with Dolman on the scene, at the at the scene on the record, he uh the first time Dolman says, "I need to be able to hear it record audio." He says, "You can. You can record it from right over here by this tree." Dolman doesn't ever respond and say, "No, I couldn't." He doesn't object to that at all. And I would also point out this record is completely devoid of any evidence which would suggest he had the ability to record audio from where he was initially standing. And I don't think that >> but that maybe that's a red herring. That's not the point. The point is when the officer asks him to move to a point where the officer knows he can't hear, does that not cause a problem here? >> Sure. But I don't think the record evidence supports that the officer knew he couldn't hear. Clearly at the time uh being faced with things in real time, officer Manalia determined he could hear audio from over by that tree where he was telling him to go where he was asking him nicely repeatedly. >> So I have a kind of changing gears a little bit. uh you were saying they haven't shown you know that they've preserved the uh issue in this case and I guess you know when they're arguing jury instructions the defense actually argues that additional language should be included in instruction 13 uh which better assesses out that police officers are expected to endure burdens u and with the idea of of better assessing out what reasonable time, place, and manner restrictions are. You don't think that was sufficient uh to preserve the issue? >> No, I think that's entirely different uh bringing a motion for some dicta for jury instructions as opposed to bringing a motion to dismiss because a statute was unconstitutional as applied. That's clearly a court issue. That's clearly a pre-trial issue. Something that can be resolved short of trial. And that's when the motion should be brought. The the the motions the motion for the instructions in Glick Kaf was absolutely not. It was not a the motion that councils it it did not preserve the issue of whether this was constitutional as applied because the district court never got an opportunity to take testimony and to evaluate under those circumstances. And unless there are other questions. >> So the court's limited jurisdiction as I understand it can't declare a statute facially unconstitutional. Is that accurate? >> That's my understanding. >> Okay. Does that I know this is an as apply challenge but is is there any issue there as far as why we would consider plain error? I mean plain error is often a shift of strategy that that's not uncommon. So that's what I'm wondering about, >> you know. again. Uh I'm sorry, judge. One more time. >> Just wondering if the fact that you can't facially challenge a statute in a court of limited jurisdiction whether that has any kind of quelling effect on other constitutional challenges and we should consider that one when looking at the plain error question. I think the question that the chief is asking also is that would the would the court in the trial court in this case have been able to make a ruling on the as applied constitutional challenge? >> I think there's sufficient evidence in the record. I think likely the record would have been augmented and you would have had the officers talking about wait a minute I've got this guy who right off the bat is trying to speak with the occupants of the stop vehicle. I understand officer >> but the there's nothing in the limitation of the court's authority that would preclude it from answering the question is I think the question is that chief am I kind of getting the question >> can the can the can the court can a municipal court rule on an as applied constitutional challenge whereas they cannot rule on a facial constitutional challenge to a statute does that make sense >> that makes sense I'm not able to speak until I tell you >> procedurally are They barred from a facial from an as applied challenge at the municipal court level. >> I'm not aware at of any uh of any procedural bar of an appeal. They did appeal to district court in this case. That's required. District court said you waved it. You didn't raise it before the trial court. Um >> I thought there was a lot of discussion of Glick in the transcript before the justice court, but I had some quotes uh from state of Hawaii versus Russo. Apparently lost them. this on the way up here. But I think that sets out a real nice job of of collecting the federal circuit decisions and then then submitting synthesizing all those opinions and then submitting a rational test uh that that I think applies consistently with the president and gloff and those other federal cases. >> All right, any further questions? Thank you. >> We gave you back your rebuttal time that we took from your colleague. >> I appreciate that. >> First, just to speak to your last question, Chief Justice, in terms of preservation, I do not believe that a lower court is barred from ruling on an as applied challenge. Um, however, I would say that had, for example, the trial council made a motion for a judgment of a quiddle, arguing that there is no unconstitutionally protected conduct that can be the basis of this charge. Therefore, it should not go to the jury, which is absolutely a motion they could have made. Record would be no different. We would have still have the exact same record before us today. and auto. And so in speaking about whether or not plain error is an appropriate review, I do not there's no reason to believe that had this been preserved in a different fashion, there would be a different record before this before this court. I also want to clarify my response and just talk about jury jury instruction 13. I don't want to leave this court with the impression that uh jury instruction 13 was correct and jury instruction 11 was the only issue. Jury instruction 13 was flawed as a matter of law and it started first with the fact that the municipal court determined that a reasonable time, place and manner restriction was the appropriate test that came prior to hearing any evidence in this case. So prior to determining whether or not that should have been a contentneutral or a contentbased restriction, right? was Dolman ordered to back up because he was filming, which would then require strict scrutiny. The court determined prior to hearing anything that intermediate scrutiny applied. That is inherently problematic. They applied a the test without first hearing the evidence and determining which test should be applied and then the jury was not told that they too would need to that they then would need to determine. So again, a reasonable time, place, and manner restriction is one that does not tie back to the content of the restriction. And so in order for intermediate scrutiny to apply, it cannot be a contentbased restriction. So the first prong would be that it cannot tie back to the content. So it cannot be imposed because Domen isn't is filming. The second purpose, the second part of the reasonleness would be that the government needs to have a significant government interest. Then it would need to be narrowly tailored to that interest and leave open ample forms of communication. Those are clearly defined legal concepts that we have to define reasonleness that the jury never heard. Unlike city of Whitefish versus Oshanosy where fighting words was clearly defined and this court said well in that instance the court can decide. Chief Justice I want to go back to your question in regards to the parameters between Glick versus KOF and Eisenheimer. First, in terms of the facts of the Click case, Glick versus Cunoff was a case that happened um in Boston uh occurring at it was a occurring at a there was a violent arrest occurring in a public park at night. And in that case, they held that the that a 10-foot distance was a reasonable distance. That was a the limit in that case during a violent arrest at night in a public park. Eisenheimer was determined on a sufficiency basis not as an as applied challenge but I think if we put an as applied context to it we have totally different behavior than we have here I think we start this the first question we have was Eisenheimer's constitutional protections even be invoked right is he even entitled to constitutional protection and I'm not sure he would have been because he's his approaching the vehicle that is and not the content or what he his speech that is the problematic behavior. >> You don't have a constitutional right to a ride home. >> I'm not uh I'm not going to make the argument that you do today at least. >> We're talking about but on St. Patty's Day here. >> Well, there are exceptions. >> So, here here's my question on first of all on Glick. Let's start with that. It wasn't so much the 10-ft distance. It appeared to me that the triggering issue was when he confirmed to the officer he was recording and then he said he arrested him on the the wiretapping statute or something like that. So So it was very much the constitutional act activity of recording that triggered it. I didn't think there was an allegation that he was actually interfering in the arrest. I think Eisenheimer is a much more interfering scope of conduct than what we have here. But the reason I like that comparison is because there isn't the invocation of protected activity. It's simply interference, you know, even if it's just, you know, not necessarily intentional. So that's what I'm trying to understand between those two barriers. >> And I think your honor, you you hit on it exactly that there wasn't the invocation of the constitutionally protected conduct in that case that we clearly have here. And I think that is the deciphering factor because once we put a limitation, this is US versus Alvarez. Once we put a limitation on that constitutionally protected conduct, there needs to be a direct causal link between why are we restricting that conduct, what is the perceived harm and be able to to justify that restriction that we then impose. >> Right? which goes back to Justice Sheay's question at the beginning, which is you can be engaged in something that's constitutionally permissible, but if you're also doing something that is impermissible and you're arrested for that, then we have to figure out which was actually the the trigger here, which is why we're here today. >> Thank you, Any last thoughts on that point? My last thought on that point is the conduct that they have been pointing to in this case is the slight distraction of WY which clearly still falls in the realm of constitutionally protected conduct under city of Houston vill. >> Okay. Any further questions from the court? Okay. Thank you. And it is submitted. >> Thank you. >> At this time the court is still silent on the issue. I have linked the court's website below and that will take you straight to the source to see if Shawn's conviction was overturned and what if any changes the Supreme Court makes regarding the obstruction statute. It's kind of a big deal. So, I'm very interested in hearing your opinions. As always, let me know in the comments down below [Music] you.