Bystander rights

Five Points police case headed to trial

jmonk@thestate.comFebruary 13, 2013 

Jonathan McCoy (left -white shirt) walks up as friend is being arrested by Columbia Police in Five Points n 2009 in this image taken from surveillance video.

COLUMBIA POLICE DEPARTMENT

A federal case involving a controversial Five Points incident that may help define how a citizen bystander can interact with a police officer making an arrest will go to a jury trial, U.S. Judge Joe Anderson said Tuesday.

Anderson made his statement at the end of a 70-minute hearing during which lawyers for Columbia and three city police officers argued against a lawyer for Jonathan McCoy over whether McCoy’s 2009 arrest on a Five Points street outside the Red Hot Tomatoes bar was legal under the U.S. Constitution.

A friend of McCoy’s was being arrested, and McCoy was asking officers what happened. In a widely distributed video, McCoy ended up in handcuffs himself. McCoy accuses the officers of interfering with his free speech rights and filing an inaccurate police report. The incident was one of several that sparked federal interest, as SLED and the FBI got involved in the police department’s conduct in Five Points.

“We are going to trial in this case,” Anderson ruled, setting March 18 as the trial date.

Anderson noted that U.S. Supreme Court decisions give broad protection to bystanders who make even abusive comments to police officers carrying out an arrest.

The city of Columbia and the three arresting police officers had asked Anderson to throw the case out because, they said, it didn’t have enough merit to go to trial.

“This case involves the freedom of individuals to verbally oppose, inquire or challenge police actions,” Robert Goings, McCoy’s attorney, told Anderson. “... It is clearly established that a police officer may not arrest a citizen for questioning police conduct.”

Attorney Matthew Rosbrugh attacked Goings’ portrayal of the incident, telling Anderson that McCoy had physically interfered with the arrest, “These officers did not arrest Mr. McCoy for what he said.”

Rosbrugh, who represents officers John Passmore, James Heywood and Amanda Long, said that events that night happened quickly and the officers “didn’t have the luxury of ... figuring out whether McCoy was a bad guy or not.”

A key issue in the case, Anderson noted, is whether the city of Columbia’s ordinance was overly broad, since the U.S. Supreme Court has ruled it is permissible for bystanders to criticize an ongoing police arrest.

Another issue for the jury to determine is whether McCoy actually touched one of the officers during the incident, Anderson said.

Sidewalk surveillance videos were played in court Tuesday and appeared to show McCoy making no threatening or “in your face” moves to police. But they contain a brief portion where his hands are hidden.

If a jury believes McCoy actually touched an officer, the jury could decide whether that constitutes an illegal interference, Anderson indicated.

Columbia’s ordinance states, “It shall be unlawful for any person to interfere with or molest a police officer in the lawful discharge of his duties.”

McCoy, 29, of Horry County was arrested shortly before 4 a.m. on Oct. 17, 2009, when he left a bar to see what had happened to a friend. When he saw police arresting the friend outside, he tried to find out what happened. He wound up spending time in jail charged with resisting arrest and interfering with police.

The police incident report says McCoy placed a hand on an officer and intervened by “getting in” the officer’s face. However, those actions cannot be seen on videos captured outside the Red Hot Tomatoes bar and Sharky’s bar shown Tuesday.

The hearing took place at the University of South Carolina Law School, and Anderson brought a court reporter and various U.S. marshals for security.

Anderson, who teaches a course on evidence at the law school, told the more than 250 students in attendance that he periodically holds a hearing at the school when the subject is educational and the lawyers involved are excellent.

At one point, he drew laughter from the student crowd as he described one of the videos in question, “It was amazing to me how much foot traffic there is in Five Points at four o’clock in the morning.”

After the hearing, USC Law School dean Robert Wilcox marveled at how Anderson’s session had brought a real case with lively legal issues to students and shown them the law is not confined to courthouses. “For an hour, this was the U.S. District Court – what a great message to send.”

City police spokeswoman Jennifer Timmons declined comment.

Reach Monk at (803) 771-8344.

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