Judge: Video of west county artist's arrest can stay online

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A Sonoma County judge Thursday rejected prosecutors' efforts to remove a controversial video from the Internet that shows a Santa Rosa police officer repeatedly punching a prostrate man as he tries to handcuff him.

The ruling from Judge Patrick Broderick was hailed as a victory for free expression by lawyers for west county artist Thomas Flournoy, who suffered broken ribs in the incident and was charged with misdemeanor resisting arrest.

"He (Broderick) could have dodged the First Amendment issue but he went straight to the heart of it," said San Francisco lawyer Tony Serra, who was brought in to assist Flournoy's attorney, Omar Figueroa of Sebastopol. "It was a shining moment."

Deputy District Attorney Andrew Lukas was asking Broderick for a gag order on the YouTube video taken Sept. 29 near Railroad Square. He argued it would cause pretrial publicity and prevent the selection of an impartial jury.

Also, Lukas said Figueroa and a co-defendant's lawyer, Heather Burke, violated professional standards by posting the video in an apparent attempt to get witnesses to come forward.

But Broderick denied the prosecutor's motion, saying he offered no proof that either lawyer was involved or that the video had influenced potential jurors.

Further, Broderick said the video was already in the public domain and there was no way of knowing if removing it from the Internet would prevent bias. In fact, he said publicity from taking it down could bring even more attention.

"The People are, in essence, asking the court to un-ring a bell by ringing it again," Broderick said in reading his ruling from the bench.

Activists watching in the courtroom said the ruling was important in establishing the right to post information and for journalists to link to it. The Press Democrat has published two stories that contained links to the video.

"Judge Broderick's ruling is an important victory for freedom of expression on the Internet," said Judith Volkart, vice-chairwoman of the American Civil Liberties Union's Sonoma County chapter. "And for the right of the press to direct its readership to online sources like YouTube."

Now, Flournoy, 49, and co-defendant Kevin Goecke, 38, of Sebastopol, can proceed toward trial, although a settlement is possible. Both men are asking to have the case tossed out on grounds that the officer used excessive force.

The next hearing is March 22, when their lawyers will seek police personnel records.

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