Judge deems Columbia law 'unconstitutional' - wistv.com - Columbia, South Carolina |

Judge deals blow to 'unconstitutional' Columbia law after controversial Five Points arrest

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Jonathan McCoy Jonathan McCoy

Questions surrounding a 2009 arrest outside a Five Points bar may finally be answered as a lawsuit accusing Columbia police officers of misrepresenting the actions of a Myrtle Beach lawyer by filing a false police report and violating his free speech by arresting him for "interfering" will soon be tried in federal court.

On Monday, a federal judge dealt a blow to a City of Columbia law, agreeing with Jonathan David McCoy's legal team, deeming Municipal Ordinance 10-34(b) unconstitutional.

The law reads: "It shall be unlawful for any person to interfere with or molest a police officer in the lawful discharge of his duties."

Judge Joseph F. Anderson ruled the 1979 law to be unclear. "Based on the foregoing, the court finds that the Ordinance is facially unconstitutional as unduly vague," wrote Anderson.

Anderson could not, however, grant judgement to either the city or McCoy on the issue of whether the Ordinance was unconstitutionally applied to McCoy in this case. Anderson wrote, "it is conceivable that [McCoy's] First Amendment rights could have been [violated]."

Anderson says the First Amendment gave McCoy protection to ask questions and even criticize the officers.

McCoy's attorneys have argued since shortly after the incident that the ordinance was unconstitutional as applied to the attorney's Oct. 17, 2009 arrest outside Red Hot Tomatoes on Harden Street.

Police arrested McCoy after he raised questions while they were arresting his friend, 25-year-old Allen McAlister.

That night, Columbia police got a call from a bartender at Red Hot Tomatoes about a man causing a disturbance. 

When police arrived, they found the man more than 20 yards away in front of Sharky's.

Surveillance video from outside Sharky's shows Columbia police officers James Heywood, Amanda Long, and John Passmore walk up to McAlister.

As the officers approached, one officer immediately placed McAlister under arrest. But the three officers later wrote in a police report, "he needed to leave," and said they gave him "several chances to leave."

The officers wrote in their report that McAlister walked back to the bar twice before officers wrestled McAlister to the ground and arrested him.

Police went on to claim McAlister "snatched his arms away" and "started pushing the officers away," claims the video does not support.

The lawsuit says McAlister was arrested for refusing to leave Red Hot Tomatoes, though the video shows he was already out of the bar when police arrived.

The video then shows McCoy walking up to ask officers why they were arresting his friend.

The officers wrote in their report that McCoy "grabbed an officer by the arm" and continued to intervene by "getting in [the reporting officer's] face." McCoy says he was simply asking the officers about McAlister's arrest details, bond hearing and Miranda rights.

In the video, officers shoved McCoy several times before placing him under arrest. The officers reported in detail that McCoy resisted arrest, allegations the video also disputes.

McCoy's suit claims he asked the officer why he himself was being arrested, and Officer Passmore replied, "for asking questions." The suit said Passmore went on to say it was a crime to ask questions about McAlister's arrest.

In addition, the officers didn't file the charges with the jail after McAlister and McCoy were booked, which caused them to miss two bond hearings and spend a night in jail. During that stay, McCoy witnessed his cellmate commit suicide.

McCoy's cellmate, Olin Taylor, had been booked on charges of assault and battery with intent to kill and driving under the influence, and was found hanged in his cell. Coroner Gary Watts  Taylor's death a suicide.

Columbia Police Chief Randy Scott, who was not chief at the time of the incident, said Tuesday he still believes McCoy interfered with officers.

He said he respects Anderson's ruling and agrees the ordinance might need to be re-worded, but he also says officers need to be able to make arrests for interference for their own protection.

"We can't allow people to interfere with police when they're trying to do their jobs," said Scott.

The ruling did not settle all of the matters in McCoy's lawsuit. This case will proceed to trial on the constitutionality of the Ordinance as applied to McCoy during his arrest and on the City's liability.

First Amendment attorney Jay Bender says it's clear the city statute needs some work. "I think every citizen haws a right to ask every public official, 'What are you doing? You work for me. You work for us in mass. What are you doing?' And if that gets you arrested, we have a problem," said Bender.

"To come up and ask a police officer, 'What are you doing?' or to say, 'Stop doing that' seems to me to be well within your rights as a citizen to question authority," continued Bender. "Merely asking an officer what they're doing or even cussing an officer for what the officer is doing strikes me as not being interference. Might be annoying, but the Supreme Court of the United States has said very clearly that in our country we have the right to annoy public officials by strong, caustic, even abusive language."

"The police perhaps need to be better trained, the ordinance needs to be restricted," said Bender.

The trial is scheduled to begin March 18. Jury selection began Tuesday.

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