The Case of Dawson County v. Nydia Tisdale-My Research from Three Years Ago

Nydia Tisdale

Regarding the case of Nydia Tisdale presently under trial in Dawson County, the US Constitution protects individuals from governmental arrest under the color of law. IOW, there are no laws that can bypass the freedom of the press protections cited and guaranteed under the 1st Amendment. Any law enacted or invoked to make such an arrest would be null and void on its face.

I expect the prosecutor will try to invoke the private property rights of the owner of the facility, who when asked to do so by certain Republicans at the event, instructed Captain Wooten to have Ms. Tisdale removed. As a property owner, the prosecutor will argue, he had that right.

I looked into this at the time, and here is my body of research from three years ago:

The question is not whether the event is on private property, but whether the event is held at a place of business with an open invitation inducing the public to attend.

In this circumstance, because it is a business, normally open to the public, thereby an establishment under the legal presumption of seeking profits, and furthermore, because this business took steps to induce the public onto the property via public invitation, that inducement created a “limited right of access” onto the property for anyone who attended. And that means that, those induced by the invitation to abandon whatever else they might do that day, and travel to the property, thereby possessed the resulting right to expect that as long as they did what the invitation required, they would be given the right of access by the owner. That right would exist as long as the event transpired, and as long as those induced to attend (1) obeyed the law, and (2) obeyed the posted rules and policies of the business. Ms. Tisdale followed both of those requirements. Furthermore, adding to her case, there are dozens of videos of Burt’s customers videoing at Burts Pumpkin Farm on YouTube. So obviously, videoing was not against the traditions, rules or policies of the business and had always been allowed without question and without seeking permission. And so the alleged change in policy on videoing occurred with no public notice such that all of the attendees would would understand the change, and was only whispered into the ear of Ms. Tisdale, who was singled out to become the only one aware of the change in policy.

And because this is true, Ms. Tisdale really owed no responsibility to even ask for permission, anymore than people in Walmart would be required to ask permission to video something inside the store. Again, the distinction here is that this was a business open to the public, and even with a public invitation, and not a private residence. The rules governing a private residence would be completely different. None of the previous visitors to the property were expected to pass the high bar of asking and receiving permission before videoing on the grounds of the business. And thus, with no blanket notice announced to any and all of the attendees prior to the changing of the rules of the business, and no official change announced by the owner, or anyone who would obviously be acting as an agent of the owner, and who might announce their agency so that it could be known to the entire crowd, and finally, because Ms. Tisdale was singled out among others who were recording in their own ways, as you know (photo journalism, audio journalism), the arrest of Ms. Tisdale was unlawful. And very importantly, because this unlawful arrest arose in an effort to deny the right of a free press under the color of law, this activity passed the bar of denying Ms. Tisdale her First Amendment rights. Furthermore, because her right to assemble was infringed for the same unlawful reason, another First Amendment Right was also abridged. And because she was bodily harmed for the same unlawful reason, her Fourth Amendment right to be secure in her person was also violated.

And for these reasons, no private property rights of the Burt’s, as if the activities in question occurred at a private residence, should control the outcome of this case.

Here is a reference for you:

http://premisesliability.uslegal.com/status.../invitees/

Here is an important principle from the above reference:

“With respect to business invitees, the owner of the premises owes a duty to use reasonable care and diligence to keep the premises in a safe condition. In the case where the premises are in a dangerous condition, they must give sufficient warning to such invitees so that danger can be avoided by the use of ordinary care.”

In this case, the “danger that could be avoided” was the danger of being arrested and a illegally assaulted and detained for videoing the event. For the Burts to avoid liability for the danger that resulted to Ms. Tisdale, she must have been given sufficient warning that by her use of ordinary care, in other words heeding an obvious warning not to video the event, she could have avoided the danger that occurred.

Here is another reference for you:

http://law.justia.com/.../court-of-appeals/1952/33681.html

Applicable principle to the above reference:

"where one enters upon the premises of another for purposes connected with the owner's business conducted on the premises, he is an invitee, and the owner is liable to him in damages for failure to exercise such ordinary care in keeping the premises safe. Such duty to keep the premises safe for invitees extends to all portions of the premises for which invitation is extended and at which the invitee's presence should be reasonably anticipated, or to which he is allowed to go."

Statute and case law requires the owner to keep the premises "safe" for a public invitee, which automatically means that the owner has no authority to have one of those invitees physically assaulted, by officer of the law or otherwise, as long as they obey the law and obeyed the posted rules of the place of business. Otherwise, a liability to the owner would be the result. And that is what happened here. The attorney general has gone so far as to state several times that what happened was "not right." I believe he is correct in that.

The trial has now begun.  Soon we will see how all this shakes out.