Attorneys argued a Kalispell man’s constitutional free speech rights were violated when he was arrested after filming police officers during a traffic stop.

But in arguments Wednesday to the Montana Supreme Court, the Attorney General’s Office on behalf of the city of Kalispell said even the right to record police comes with limitations, and the man interfered with the stop.

In February, the American Civil Liberties Union filed an amicus brief on behalf of Sean Doman, the appellate in City of Kalispell v. S. Doman, seeking to reverse his conviction on the basis his speech was protected and that he was not creating a problem for the officer conducting the stop.

Doman was later found guilty of obstructing a peace officer, with the Eleventh District Court affirming the conviction.

The amicus brief states Doman was riding his bicycle on July 17, 2022, saw a Kalispell police officer make a traffic stop, and decided to record while standing on a public sidewalk. A second officer, Officer George Minaglia, was called to the scene, and Minaglia told Doman to back up from the traffic stop. The stop was described as routine both in court documents and by attorneys representing Doman on Wednesday. Documents also state Minaglia was only called to the scene as backup because someone was filming the interaction.

Doman did move backwards, following Minaglia’s initial commands, and the officer agreed he had the right to record the interaction, according to court documents. The officer then asked Doman to move even further back. Court documents state Doman told Minaglia he wanted to record audio and was on public property.

Doman then said he wasn’t going to move again, and following that exchange, Minaglia knocked the phone out of his hand, and it fell to the ground, according to court records. Doman picked up his phone, kept filming and was again told to move further back by Minaglia.

Doman did move back, calling Minaglia a “tyrant” as he did so. The officer then knocked his phone out of his hand again, and Doman was arrested by Minaglia, court documents stated. 

On behalf of Doman, attorney Carrie Gibadlo and Matthew Segal, co-director of the ACLU’s State Supreme Court Initiative, argued Doman’s actions are protected under both the U.S and Montana constitutions.

“By commanding Mr. Doman to obey a no recording zone that was so large that it would have prevented him from hearing an event that he had a constitutional right to record, the City imposed upon Mr. Doman an infringement of his constitutional rights that weren’t strict scrutiny, both under the Montana Constitution because it impermissibly interfered with a fundamental right, and under the First Amendment because it was a content based restriction,” Segal told the Court.

Strict scrutiny basically means that if the state infringes on a constitutional right, it needs to meet the highest justification to do so.

Chief Justice Cory Swanson then asked Segal where the limit is for recording law enforcement activities.

“Where’s the line here? Because the officers are saying we’re uncomfortable with him being this close, distracting us, or whatever,” Swanson said. “Where’s that line? How do we figure that out?”

Segal argued there were circumstances where law enforcement would need to stop a significant distraction to their work, but Doman’s actions did not rise to that level. He also later pointed out that had Doman been photographing birds in the same location, additional law enforcement would never have been called.

“If they’re getting in the way, if they’re literally screaming in the ear of a police officer, those would all be circumstances in which sort of this kind of ad hoc police tape command could maybe be set up,” Segal said. “But here on this record, the court doesn’t have to confront those difficult questions, really, because there was nothing that Mr. Doman was doing that even arguably brought him close.”

Assistant state attorney general Thad Tudor argued there was sufficient evidence “any rational juror” could conclude the state had proven its case. He also added that Doman tried to communicate with the driver of the car as well and that his close proximity and distraction to the traffic stop were the crux of the issue.

“The testimony evidence establishes that that’s what Officer Minaglia encountered when he arrived at this stop,” Tudor said. “He sees a guy that, in his experienced opinion, is too close to the traffic stop.”

He also outlined the stop, saying the officer conducting the traffic stop left his car to assist Minaglia.

Tudor also added Doman’s “claim of wanting to record audio was nothing more than a pretext to be able to explain to the officer his knowledge of First Amendment rights.”

He went on to say Doman’s interference was shown “by engaging in a loud, verbal, profane fight with an officer who’s merely trying to ask you to back up, and doing so in a manner that requires other officers to come and take their focus completely off of the occupants of the stopped vehicle, to focus on this individual who has no legitimate basis for being there at that point,” Tudor said.

Swanson pointed out that filming was a legitimate reason, which Tudor agreed with.

“It is not a violation of the law to film a peace officer conducting official duties while enforcing the law,” Tudor said. “However, the right to record police activity is not without limitations.”