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Wildlife Activist Free to Observe Bison, 9th Circuit Rules

By William Vogeler, Esq. on July 27, 2017 | Last updated on March 21, 2019

One summer day several years ago, a herd of agitated bison crossed a Montana road oblivious that conservationists were fighting for them in court.

County sheriffs were herding the buffalo back to Yellowstone National Park, "hazing" them by horseback, cars, and all-terrain vehicles. Two weeks earlier, a federal court had outlawed hazing by helicopter.

Anthony Patrick Reed, a wildlife activist, parked his car fifty yards away to observe the operation. He was cited for obstruction, but in Reed v. Lieurance, the U.S. Ninth Circuit Court of Appeals said he had a constitutional right to be there.


Gallatin County Sheriff's Deputy Douglas Lieurance had threatened to arrest Reed unless he parked elsewhere. Reed moved, but the deputy cited him anyway.

After a county prosecutor dismissed the case, Reed sued the deputy, the county, and the county sheriff for civil rights violations. A trial judge gutted the case before trial, but the appeals court reversed and remanded with orders to appoint a new judge.

The appellate panel said a reasonable jury could conclude Reed presented no risk of obstruction while parked on the "gravel road up the hill over half a mile from the planned route of the haze." Reed had a First Amendment right to observe the operation, the judges said.

"At the time of the citation, Reed was located on a public street, which is a quintessential public forum, Frisby v. Schultz, 487 U.S. 474, 480 (1988)," the court said, "and he was engaging in the First Amendment-protected activity of observing a government operation, Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995).

First Amendment

Rebecca Smith, a civil rights attorney who represented Reed, said the appeals court upheld an important constitutional right.

"The whole reason we have the First Amendment is so that people can observe what the government is doing and provide counter narrative," Smith said. "That applies not just to the government's buffalo operation but in everything the government does."

She said the court reaffirmed that peacefully observing and documenting government conduct in a public place is protected conduct under the First Amendment, and Montana citizens cannot be arrested for 'obstruction' for exercising this First Amendment right.

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