Antonio Buehler was arrested in Austin, Texas, after recording a woman he believed was getting abused by police. The officer even threatened other innocent bystanders with arrest if they didn’t stop paying attention to what was going on. The officer later said that he arrested Buehler for spitting on him, but the video and independent witnesses dispute this and a grand jury refused to indict him for it. The grand jury did, however, indict Buehler for failure to obey the officer in putting his hands behind his back—but even on this charge he was found not guilty.

Now Buehler is trying to sue the police because he believes his arrest, along with two earlier arrests, were in retaliation for his video recording—a First Amendment‐​protected activity. The Austin Police Department moved for summary judgment on this lawsuit, claiming that the police should not be liable even if Buehler’s account is correct because he was indicted—and that indictment is conclusive evidence of the probable cause justifying his arrest. The federal district court granted this motion, dismissing the case, and the U.S. Court of Appeals for the Fifth Circuit affirmed that result.

Cato, joined by the National Press Photographers Association and five other media organizations, has filed an amicus brief asking the Supreme Court to take this case and give Buehler his chance to prove that the facts underlying the grand jury indictment were false. Instead of taking the grand jury determination as conclusive, the Fifth Circuit should have relied on the Supreme Court’s holding in Hartman v. Moore (2006) that probable cause “is not necessarily dispositive,” and even if it was that the plaintiff need only “plead and prove its absence.” Buehler has pled the absence of probable cause and seeks only to prove it.

Considering the facts that he has pled, where the officer explicitly told him after he was arrested that “it would have been so much easier if you would just pay attention to your own selves,” it’s reasonable for a jury to infer that this was the real reason for the arrest.

Sadly, Buehler’s travails aren’t isolated happenstance. Police around the country have been trying to put the technological genie back in the bottle by harassing those who are just trying to record what the police do. Even credentialed journalists have not been immune and many have been arrested on trumped up charges.

It’s for this reason that it’s critically important that the Court takes this case, not just to secure justice (or even a day in court) for Mr. Buehler, but to help all people like him who are pretextually arrested by police just because they choose to record what these law‐​enforcement agents do. Everyone deserves the opportunity to prove that the facts underlying one’s arrest aren’t true and to be awarded compensation for the government’s violation of our rights.

The Supreme Court will decide later this winter whether to take Buehler v. Austin Police Department.