The Walnut Ridge Police Department violated free-speech rights when someone in the department deleted posts from its public Facebook page, according to a federal lawsuit filed Monday in Fort Smith.
On April 18, a Fort Smith couple posted links on the Facebook page to body-camera footage of the December 2016 arrest of Adam Finley by Matthew Mercado, who was then a Walnut Ridge police officer.
But the posts soon disappeared, according to the lawsuit filed by Kesha M. Chiappinelli on behalf of William Whitfield Hyman and Natalie Hyman of Fort Smith.
"Citizens were invited to the public Walnut Ridge Police Department Facebook page where they could find information and express their views, designating it as a public forum. The creation and moderation of the Facebook page was 'state action' subject to the First Amendment," wrote Chiappinelli, who works for The Zaffino Law Firm of Bentonville.
"Social media platforms enable ordinary citizens to speak directly to public officials about government in much the same way they could as if attending a town hall meeting," according to the lawsuit. "Just as the First Amendment has been held to protect television, radio and other developments in technology, online speech which includes comments posted and shared through Facebook, must be protected from government infringement."
Besides the First Amendment, removal of the posts also violated the 14th Amendment to the U.S. Constitution as well as Article II Section 6 of the Arkansas Constitution and the Arkansas Civil Rights Act of 1993, according to the lawsuit.
Chiappinelli wants a jury trial and for the posts to be restored to the Police Department's Facebook page.
Named as defendants in the case is the city of Walnut Ridge, through Mayor Charles Snapp in his official capacity and Chris Kirksey in his individual capacity.
Kirksey resigned as police chief June 4, two months after a federal lawsuit was filed saying he failed to take appropriate action after Mercado "unlawfully arrested, assaulted and harassed" Finley during the traffic stop.
Instead, when Finley went to the Police Department to complain about being manhandled by Mercado, Kirksey authorized another officer to write him tickets for refusal to submit to arrest and obstructing governmental operations, according to Finley's lawsuit.
Mercado had stopped Finley, asking why he was on railroad property, according to Finley's lawsuit. Finley said he worked for the Burlington Northern Santa Fe Railway Co. In the video, Finley can be seen driving a white, unmarked pickup and wearing an orange jacket that had "BNSF Railway" on the front right side and an American flag on the left side. Finley showed Mercado his railroad identification badge.
Mercado said Finley had an "attitude," according to the suit. At one point, Mercado pushed Finley against the pickup and handcuffed him, but he later removed the handcuffs and let Finley go.
Snapp didn't return a message left at his office Tuesday.
Kirksey administered the Facebook page, according to the Hymans' lawsuit.
"The government can't have an open forum and then delete comments it doesn't like," Whitfield Hyman said in an email. He's a lawyer in Fort Smith.
The lawsuit refers to an attached screen shot, but no such screen shot was attached.
Whitfield Hyman emailed the screen shot to a reporter. It included a statement from Kirksey that was apparently on the Police Department's Facebook page at some point: "We will not allow comments that are negative and could likely start a feud. Keep it clean or your post will be deleted and you will be banned from his page."
Whitfield Hyman said the screen shot will be submitted as an exhibit in the lawsuit.
Natalie Hyman posted a link to the body-camera footage on the Police Department's Facebook page on April 18 with the comment "Walnut Ridge Police Department proudly serving!" A couple of minutes later, she posted another comment referring to her original comment, according to the suit.
About a week later, she realized that her comments had been removed from the Police Department's Facebook page, Chiappinelli wrote.
Also on April 18, Whitfield Hyman posted a link to the body-camera footage on the Police Department's Facebook page with the comment "Could you please arrest this officer for assault, battery, false imprisonment and kidnapping?" according to the lawsuit.
Whitfield Hyman realized that his comment had been deleted and that the entire timeline of the Police Department's Facebook page was no longer visible to anyone by about 4 p.m. April 18, wrote Chiappinelli.
Whitfield Hyman posted a follow-up comment on a different thread on the Police Department's Facebook page asking if his previous post had been deleted. The follow-up question was "eventually hidden from view," according to the lawsuit.
"About a week later, the entire Facebook page was deactivated and removed from public view," Chiappinelli wrote.
It was not clear from the lawsuit how the Hymans obtained the body-camera footage.
The Facebook page was apparently resurrected July 3. No posts now exist on the Facebook page before that day.
John Tull, a lawyer who represents the Arkansas Press Association, said it's an unsettled legal issue. Tull said much depends on whether the social media platform is deemed a "public forum" or "limited public forum."
"A public forum is one for all purposes," Tull said. "If it is a limited public forum, there can be restrictions, but the government restrictions must be both reasonable and viewpoint neutral."
A federal judge in New York decided that President Donald Trump violated the First Amendment when he banned people from his Twitter account, Tull said. The president's Twitter account was deemed a public forum. He has 53.6 million followers.
But a court in Kentucky ruled that the governor's Facebook page was "private speech," Tull said.
Mark Hayes, interim executive director/general counsel of the Arkansas Municipal League, said he has always thought of social media platforms for cities or city departments as "a very limited public forum and perhaps not even a public forum."
"I think of them more as governmental speech and governmental service advertising controlled exclusively by the city or its designated departmental employees and officials," Hayes said in an email. "Body camera footage is problematic and likely should not be put on a social media page by private citizens."
Hayes said police body-camera video could contain material that can't by law be released to the public, such as images of juveniles either as the subject of the video or in the background.
"Moreover, I would caution cities not to release video or allow the posting for other reasons, particularly the likelihood of failing to address the entire incident and perhaps causing substantial impediment to an ongoing criminal investigation," Hayes said. "The long and the short of it, I believe such posting or allowing such posting to be ill-advised."
A Section on 08/08/2018