Suspicion That Man Fiddling with Phone Might Be “Filming School Children” Doesn’t Justify Detention by Police

Plaintiff Galicano Alea was walking his dog on a sidewalk adjacent to a public middle school. He was fiddling with his phone to adjust his music selection. But to defendant Julian Garcia, a police officer, it appeared that plaintiff was filming school children. So, he detained plaintiff and demanded identification. Plaintiff refused. Officer Garcia eventually released plaintiff, who continued his walk. Still on school property, plaintiff then encountered a second officer, defendant Scott Ptacek. Officer Ptacek detained plaintiff and demanded identification. When plaintiff refused, Officer Ptacek arrested him for interference with a law enforcement officer. Six months later, prosecuting authorities dismissed all charges against plaintiff. Plaintiff now has sued the officers for violating his Fourth Amendment rights….

Though plaintiff’s conduct arguably appeared creepy, Officer Garcia, lacking reasonable suspicion, lacked a lawful basis for the detention. And Officer Ptacek lacked a lawful basis to arrest plaintiff for refusing identification. To hold otherwise would allow police officers to demand identification from anyone near a school while using a smartphone—parents taking first-day-of-school videos, a grandparent trying to pull up directions while in the school drop-off line, or dog walkers holding their phone near their chest….

[D]efendants offer just one crime to support their reasonable-suspicion position: reckless stalking as defined by Kan. Stat. Ann. § 21-5427(a)(1) …:

Recklessly engaging in a course of conduct targeted at a specific person which would cause a reasonable person in the circumstances of the targeted person to fear for such person’s safety, or the safety of a member of such person’s immediate family and the targeted person is actually placed in such fear[.]

Defendants identify three factors they contend supported reasonable suspicion: the weekend reports about someone photographing children at pools and parks; plaintiff walking near the school during drop-off hours; and plaintiff ostensibly filming children. The court considers each fact, in turn, below, then considers all three of them together….

[a.] Weekend Reports

Defendants cite the Thursday morning briefing, where Officer Garcia heard about over-the-weekend reports that someone had recorded children at pools and parks. As defendants concede, Officer Garcia did not recall anything about the suspect—i.e., gender, race, ethnicity. This report—of facially lawful activity occurring at least four days before defendants detained plaintiff—adds nothing to the reasonable-suspicion calculus.

The reported suspect—with no identifying information—plausibly described anyone with a smartphone. Law enforcement can’t use such an “unparticularized” report to support reasonable suspicion…. In short, the report of a weekend recorder was “supergeneric,” described “innocuous” activity, and didn’t connect to plaintiff—or anyone one specific person for that matter. It thus contributes little to defendants’ purported reasonable suspicion….

[b.] Near School

Defendants next cite plaintiff’s proximity to a middle school during the start of the school day as a factor supporting their reasonable suspicion. A suspect’s location may constitute a relevant factor for the reasonable-suspicion calculus. That said, location alone can’t supply reasonable suspicion. Id. And none of our Circuit’s cases discussing location suggest that proximity to a school can suggest criminal activity. Instead, those cases say that proximity to a high-crime area may bear on the reasonable-suspicion inquiry. But here, defendants haven’t adduced any evidence that the school or surrounding community were prone to crime.

Defendants argue that schools are particularly sensitive locations warranting special treatment. Indeed, some courts have supported such a proposition. In one of the cases defendants cite, the Fourth Circuit explained that the “fact that school grounds constituted the location of the unknown individual’s suspicious activity would immediately heighten a reasonable officer’s concern[.]” United States v. Coleman (4th Cir. 2021). But Coleman involved circumstances far more suspect than those here. There, a school administrator contacted the school resource officer after finding “an unknown man…parked erratically” on a high school’s campus. The administrator reported that the individual “was asleep or passed out” and illegally parked in a travel lane “with a crossbow visible in the backseat.” Coleman concluded that the officer had reasonable suspicion that the individual was trespassing. In so concluding, the Fourth Circuit cited a school board policy requiring visitors to identify themselves and a Virginia statute requiring school visitors to vacate the premises upon a command. And the analysis relied heavily on the school administrator’s report to the police.

Coleman says little that matters to the current case. Defendants haven’t argued plaintiff was trespassing. Nor have they argued that any school board policy or Kansas statute required plaintiff to identify himself absent independent reasonable suspicion. Nor did anyone call the police to report plaintiff. Regardless, Coleman merely suggests that officers might remain particularly vigilant against crime on school grounds when “arriv[ing] on scene to a report of an unauthorized individual and unusual activity on school grounds[.]”It doesn’t suggest that proximity to a school renders the reasonable-suspicion inquiry toothless. Putting it simply, citizens don’t forfeit their Constitutional rights simply by walking on sidewalks, smartphone in hand, adjacent to schools. So, this proximity-to-a-school factor adds minimally to the totality of defendants’ purported reasonable suspicion.

[c.] Filming

The thrust of defendants’ argument is that they thought that plaintiff was filming children. While filming children from a public vantage seems ill-advised or unsavory, it isn’t—without more—criminal. Nor does it generate reasonable suspicion.

Defendants rely on State v. Loganbill (Kan. Ct. App. 2022), for their proposition that filming children may support a stalking conviction. But the facts of Loganbill are far worse, and thus too far afield to support defendants’ position. There, a fourth-grade teacher surreptitiously and repeatedly recorded one of his student’s buttocks. By March of the school year, the teacher had accumulated 210 photos and 31 videos of the student’s buttocks. The Kansas Court of Appeals affirmed the conviction, explaining that “secretly photographing and filming a targeted person repeatedly may constitute a course of conduct proving stalking” under the Kansas stalking statute. The differences between Loganbill and this case abound. In Kansas, reckless stalking has three elements:

(1) that the accused stalker recklessly engaged in a course of conduct targeted at a specific person;

(2) that a reasonable person in the targeted person’s circumstances would fear for his safety, her safety, or a family member’s safety based on the accused stalker’s course of conduct; and

(3) that the targeted person was “actually placed” in fear for his safety, her safety, or a family member’s safety based on the accused stalker’s course of conduct.

When using these elements to compare the Loganbill facts to the summary judgment facts here, Loganbill collapses under the weight defendants’ arguments place on it….

The Loganbill defendant filmed the student over several months, which certainly qualifies as a course of conduct. Here, however, defendants make the dubious claim that they reasonably could suspect plaintiff engaged in a course of conduct—defined as “two or more acts over a period of time, however short”—by walking by students with his phone out, then turning around as they passed. The court rejects this theory. Plaintiff’s alleged filming qualifies as just one act, insufficient to qualify as a “course of conduct” under the reckless stalking statute. Regardless, plaintiff’s alleged conduct is a far cry from surreptitiously taking 210 photos and 31 videos of a single student over months. Defendants had zero basis to believe that plaintiff had targeted the children who passed him or engaged in multiple acts targeted at those children. No reasonable officer could think that plaintiff engaged in a course of conduct targeted at a specific person.

Defendants also have a problem with the fear elements. The Kansas stalking statute requires both that the target subjectively harbor safety fears and that those fears are objectively reasonable. In Loganbill, the intimate teacher-student relationship supported the objective reasonableness of the fear for safety the student experienced. The prolonged duration of the filming also made the student’s fear objectively reasonable.

Here, in contrast, plaintiff—so far as defendants knew—had no relationship with any of the students he encountered. Nor had plaintiff targeted any of those students over any protracted period of time. No reasonable person—including children—would harbor fear for their safety merely because someone was recording them on a public sidewalk on a single occasion. True enough, having a camera pointed at you might generate uncomfortable or unpleasant feelings. But it doesn’t suggest a threat to safety. After all, “anything in a public place can be recorded and given circulation by means of a photograph.” To accept defendants’ argument on this fear element would allow them to detain virtually any person who films another person on suspicion of reckless stalking. Nor did defendants ever observe any subjective reaction from the children plaintiff ostensibly was recording. So the officers had no reason to believe the children subjectively feared for their safety—a necessary element of stalking.

To be sure, reasonable suspicion doesn’t require officers to muster evidence of each element of an offense. But the fear requirement is the keystone element of Kansas’s stalking statute. Without any reason to believe the children plaintiff ostensibly filmed feared for their safety, and without observing conduct that would cause an objectively reasonable person to fear for their safety, the officers lacked reasonable suspicion that plaintiff was engaged in criminal conduct.

In sum, defendants’ mistaken belief that plaintiff was filming juveniles adds close to nothing to the reasonable-suspicion calculus. Without more, plaintiff’s conduct was too innocuous to suggest stalking.

[d.] Reasonable Suspicion—Totality of the Circumstances

While each individual factor fails to support reasonable suspicion, courts mustn’t engage in a “divide-and-conquer analysis” of reasonable-suspicion factors. So, the court now must determine whether the factors defendants cite supported—in the aggregate—reasonable suspicion. They didn’t. Individually or collectively, the factors defendants cite fail to generate reasonable suspicion. Defendants saw an older man walking on a public sidewalk with his phone out. True, plaintiff was walking near a school and plausibly held his phone in a manner suggesting he was recording juveniles. Even so, that conduct doesn’t suggest crime. At best, the officers were “amorphously suspicious,” which won’t do. The Fourth Amendment’s protections don’t depend on how high a citizen holds his phone. So, even viewed collectively, the facts defendants cite—the weekend reports of an adult filming children, the proximity to a middle school, and the ostensible filming—don’t generate reasonable suspicion of criminal activity. At bottom, plaintiff had his phone out and was walking on a public sidewalk. This legally innocuous behavior doesn’t generate reasonable suspicion….