AN APPELLATE COURT last year found San Jose leaders violated a person’s First Amendment rights with a rare restraining order that hindered him from filming police officers in public. The city is fighting to keep it in place anyway.
Nicholas Robinson had two convictions overturned in November for violating an unusual restraining order that barred him from filming officers within 100 feet. The ruling by the Santa Clara County Superior Court’s appellate division found that section of the restraining order overly broad — and his convictions were unconstitutional free speech restrictions. However, the appellate court agreed with a trial court’s 2022 verdict on four other counts of violating the order, which centered on profane emails Robinson sent to officers and an incident where he shined a flashlight in an officer’s eyes.
“We conclude that some aspects of the restraining order amounted to an impermissible restriction of Robinson’s First Amendment rights because it was not narrowly tailored and reverse the guilty verdict for two counts,” Judge Thomas Kuhnle wrote in the ruling issued in November.
Robinson called the appellate ruling a “relief” — and grounds for a fresh civil rights lawsuit against the city. He’s scheduled to appear for another civil hearing on March 17 where the city is trying to get the order renewed, according to court records online.
“What I want to do next is try to hire a civil rights lawyer and sue as a result of this,” he told San José Spotlight. “I lost a lot of money, wages and work over this.”
City Attorney Nora Frimann is standing by San Jose’s restraining order practice, arguing the 100-foot distance rule is a “fairly standard provision” for workplace restraining orders, but that the city will review it when pursuing others.
“Basically, Mr. Robinson continues to engage in disruptive and threatening behavior. We are certainly mindful of the appellate division’s ruling as to the stay-away distance as we approach the upcoming hearing,” Frimann told San Jose Spotlight. “But the appellate division upheld other restrictions, including the prohibition on shining lights in officers’ eyes and otherwise diverting officers’ attention from their duties, that continue to be concerns for SJPD officers based on Mr. Robinson’s ongoing behavior.”
DA reviewing the case
It’s unclear if District Attorney Jeff Rosen’s office will appeal the court’s November decision.
“We are reviewing the rulings,” DA spokesperson Sean Webby told San José Spotlight.
The city obtained its restraining order against Robinson in 2019 on the grounds of protecting San Jose Police Department employees. Officers at the time — and an internal bulletin distributed in 2019 — accused Robinson of intending to “hunt” and “bait” officers into contacting him. This was after officers broke Robinson’s arm in 2018 after the then-security guard appeared with his flashlight to film police conducting an arrest by Highway 101. The city settled with Robinson over the injury for $30,000.
His activities are commonly known as “cop watching,” usually performed by individuals who film and observe law enforcement to ensure no misconduct occurs. People have a First Amendment right to record the police and “public servants performing their public duties in a public place have no right to privacy regarding your right to record their actions,” according to the Civil Liberties Defense Center.
“The San Jose police thought they were being novel in trying to manipulate the law to criminalize someone for having the courage to document abuse. The tactic backfired.”
Raj Jayadev, Silicon Valley De-Bug
San Jose Police Department representatives declined to comment on the ruling.
Raj Jayadev, founder of community organizing and civil rights group Silicon Valley De-Bug, called the ruling a vindication for civil liberties as a whole.
“The San Jose police thought they were being novel in trying to manipulate the law to criminalize someone for having the courage to document abuse,” Jayadev told San José Spotlight. “The tactic backfired. They should have spent that energy and resources in addressing the reason why people feel it necessary to record law enforcement interactions in the first place — the police violence itself.”
Contact Brandon Pho at brandon@sanjosespotlight.com or @brandonphooo on X.
This story originally appeared in San Jose Spotlight.
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