(CN) -  A journalist arrested while trying to document a protest outside the Trump International Hotel Las Vegas in 2017 argued Wednesday to a Ninth Circuit Court of Appeal panel that he was factually correct when he disagreed with an officer that he couldn't film on private property and he had a constitutional right to argue.

"The principles underlying this case are the facts that a member of the public does have a right to disagree with police and officers are not entitled to stop, detain, arrest or use force against citizens to make the citizen listen to them until the citizen agrees," said Maggie McLetchie of McLetchie Law during oral arguments at the Ninth Circuit's Phoenix, Arizona, courtroom on Wednesday.  

Nebyou Solomon, a photojournalist for a Las Vegas TV news channel was arrested while trying to film a protest of more than 200 people outside of Trump International Hotel to urge President Donald Trump to release his tax returns.

Las Vegas Metropolitan Police Department officers accused Solomon of setting up his camera and tripod on a shopping mall's privately owned sidewalk.    

Solomon spent eight hours in custody and was charged with trespassing and obstruction of a police officer. The Clark County District Attorney's Office eventually declined to pursue the charges.   

"Even if Mr. Solomon was incorrect, members of the public have a right to be wrong and voice their dissent, even with law enforcement," McLetchie said.   

Solomon filed a First Amendment suit in Nevada federal court against the Las Vegas police, claiming violations of due process and unlawful search and seizure. In 2023, a federal judge dismissed the case, finding there had been no violation of his rights. 

Solomon appealed the ruling to the Ninth Circuit in December 2023.

Prior case law and the federal court established that privately owned sidewalks are public forums and private ownership of a land underneath the sidewalk doesn't change, McLetchie said.

Nevada trespassing law also requires signs be posted indicating where private land is and that officers give people a warning before they can be accused of trespassing, she added.

The sidewalk Solomon was standing on, which connects to the Las Vegas strip, did not have signs indicating it was private property and officers never gave him specific directions indicating what was and was not private property and where he could move his camera setup to until he was in a police van on his way to jail, McLetchie said.   

"The officers on the street, I presume they knew about the policy, but here's the important fact, we don't assume that what the officers say was the reason for the stop is the reason for the stop, when the record is full of facts showing that the officer said 'the problem was you weren't listening to me,'" she said. 

When Solomon was told by an officer to move off the sidewalk, he complied, moving down the street with the intention of setting up somewhere where he was legally allowed to film, but he was arrested before he could set up again, McLetchie said.

The question is whether the officer knew he intended to set up his camera and tripod again, or if they were motivated by Solomon's disagreement. 

U.S. Circuit Judge Johnnie Rawlinson said that as a matter of law Solomon wasn't trespassing because it was public property, but it wasn't relevant.

"The point is whether they had a reasonable belief that he was committing trespassing," the Bill Clinton appointee said.

Representing the Las Vegas Metropolitan Police Department, attorney Craig Anderson of Marquis & Aurbach said that the officer that arrested Solomon tried to explain to him where he was supposed to move to, but Solomon refused, giving the officer probable cause to arrest him for reasonable suspicion that he was about to commit a crime.

As Anderson talked about how the officer that arrested Solomon, who is black, interacted with a white protestor that was not arrested that day, and how the officer's actions were not a restriction on Solomon's speech, U.S. Circuit Judge Gabriel Sanchez, a Joe Biden appointee, stopped him. 

"I actually think that factor cuts against you. That person told the officer to 'go f off' and apparently was told multiple times over a longer time 'you can't be here' and yet he wasn't arrested. It kind of gives some credence to the equal protection claim," Sanchez said. 

An important distinction is that the white protester didn't have a camera and tripod that the officer claimed blocked the sidewalk and the protester eventually left the area they were told to leave in the direction the officer requested they leave, Anderson said. The protester also apologized to the officer, he added.  

However, Sanchez noted the lower court didn't actually take any evidence about whether Solomon's tripod was blocking the sidewalk.

That would then be a qualified immunity issue as to whether the officers should have known that Solomon's tripod wasn't obstructing sidewalk traffic and whether they made a reasonable mistake in assuming that the sidewalk was private property that could be trespassed on, Anderson said. 

When Sanchez asked if Solomon was ever given an opportunity to film someplace else, Anderson said that he didn't show any intent to comply with any officers' orders. 

"When opposing counsel says that Nebyou Solomon's demeanor was part of the basis for the stop, to me, that's shorthand and allows the officers to discriminate against him based on his perceived affiliation with the protests, his race and based on his First Amendment activity," McLetchie said. 

No other photojournalists were told to move, except for a white journalist who was advised by officers to "move along the sidewalk," but not explicitly told to leave the area, McLetchie said.

When the journalist left, he walked in the same direction Solomon walked in, but unlike Solomon, the white journalist was not arrested, she said. 

U.S. Circuit Judge Patrick Bumatay, a Donald Trump appointee, rounded out the three judge panel.

Source: Courthouse News Service