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Right to Not be Arrested for Onlooking Clearly Established

The irony would be comical if Pine Bluff, Arkansas police officer Terry Grace didn't seem to be borderline threatening a black man with a lynching.  Walker v. City of Pine Bluff, No. 04-1969 (8th Cir. July 21, 2005).

When John W. Walker, an African-American civil rights attorney, stopped to watch a traffic stop of young black men being conducted by white Pine Bluff police officers, Officer Terry Grace arrested Walker for obstructing governmental operations in violation of section 5-54-102(a)(1) of the Arkansas Code.


Walker testified that he was driving his van through Pine Bluff, accompanied by his daughter and two grandchildren, when he saw two white police officers standing with two young black men near a car in a driveway. Walker parked his van behind one police car and walked across the street to observe the encounter. Walker stood with his arms folded some forty to fifty feet from the conversation between the police and the young men. Walker could not hear what was being said, nor did he speak to anyone. One officer, Grace’s back-up, Stephanie Sheets, approached Walker and asked if she could help him. Walker said no. Sheets asked what he was doing. Walker responded with a smile that he was watching “Pine Bluff’s finest in action.” Sheets went back and appeared to say something to the other officer, Grace, who broke off his conversation with the young men and came over to ask Walker what he was doing. Walker repeated that he was watching “Pine Bluff’s finest in action.” Grace stepped away, appeared to say something to Sheets, and then returned and asked Walker who he was. Walker asked if he had committed a crime. Grace asked again who he was. Walker identified himself as a lawyer and carefully got out his driver’s license and offered it to Grace. Grace instead handcuffed Walker, picked up Walker’s license which had fallen to the ground, and put Walker in the back of Grace’s hot police car for some twenty minutes.

Slip op. at 1-3.  Now, here's where it gets scary: 

Grace drove Walker at varying speeds over dark wooded roads to the police station, looking at Walker’s license for the first time during the drive while Walker’s daughter tried to follow in his van.

Id. at 3 (emphasis added).  I wonder what Terry Grace of Pine Bluff, Arkansas was trying to communicate to Mr. Walker?  Something tells me Mr. Grace was not reciting Dr. King's "I Have a Dream" speech.  Anyhow, Walker sued, and the Eighth Circuit held that you can't arrest someone for "silently watching the encounter from across the street with his arms folded in a disapproving manner," id. at 4, since "public officials have no general privilege to avoid publicity and embarrassment by preventing public scrutiny of their actions."

UPDATE:  I'm reading the briefs.  I am very impressed with Mr. Walker's attorneys.  If I am ever in trouble in Arkansas, I would call these guys.  That sounds condescending, as if I'm only saying they're good enough for Arkansas.  No.  Judging by the brief and oral argument, I say they are excellent lawyers - among the best in any jurisdiction.  Anyhow, they are: Ted Boswell and John Andrew Ellis of The Boswell Law Firm.