Background
On a dark November 2022 night on a Michigan highway between Gladstone and Escanaba, State Police Troopers Cole Tardiff and Gavin LaMarche stopped a truck for a defective headlight. Tardiff, the senior trooper, was supervising LaMarche, a new officer who required close oversight, while also monitoring the stopped vehicle’s occupants and managing scene safety. As the stop was underway, defendant Garrett Jennings Van Net — a self-proclaimed “First Amendment Auditor” who films police interactions with the public — drove past, activated his hazard lights, pulled over in front of the stopped truck, and approached on foot with his phone recording.
Trooper Tardiff issued repeated commands directing Van Net to stop approximately 20 to 30 feet from the scene. Van Net ignored each command, continuing to advance until he was only a few feet from the stopped vehicle. He also activated his phone’s flashlight and shined it directly into Tardiff’s face. After multiple warnings that further non-compliance would result in arrest, Van Net took another step forward and was taken into custody. At trial, both troopers testified that Van Net’s intrusion prevented LaMarche from running the driver’s information through the system, forced LaMarche to abandon the cruiser to assist Tardiff, prolonged the stop, and created safety concerns on the dark, trafficked roadway. A Delta County jury convicted Van Net of obstructing a police officer under MCL 750.81d(1).
On appeal, Van Net raised a broad array of arguments: that MCL 750.81d is facially overbroad and void for vagueness under the First Amendment; that his conviction was unconstitutional as applied because he had a constitutional right to film the stop; and that he was entitled to relief on Brady grounds, for denial of a bill of particulars, and for ineffective assistance of counsel, among other claims. Because he had not raised his constitutional challenges below, the court reviewed them for plain error.
The Court’s Holding
The Michigan Court of Appeals affirmed the conviction on all grounds. Writing for a unanimous panel, Judge Trebilcock first established — as a matter of published, binding Michigan precedent — that the First Amendment guarantees the right to film police officers performing their official duties in a public space, joining every federal circuit court to have addressed the question. The court grounded this holding in the constitutional right to gather news and the civic importance of such recordings, illustrated by the filming of George Floyd’s death in May 2020. At the same time, the court emphasized that this right is not unlimited: it is subject to reasonable time, place, and manner restrictions, and does not grant a person license to violate valid criminal laws or physically interfere with a police operation.
Applying those principles to Van Net’s conviction, the court held that MCL 750.81d is neither facially overbroad nor unconstitutional as applied. On the facial challenge, binding precedent from People v Morris foreclosed the argument that the statute sweeps in protected speech, because obstruction requires physical non-compliance with a lawful command — not merely verbal disagreement. On the as-applied challenge, the court found that Trooper Tardiff never ordered Van Net to stop filming; he only instructed Van Net on where to film from (approximately 8 to 10 feet away from the stopped truck) and asked him to turn off a flash being shined directly into Tardiff’s eyes. These commands were narrowly tailored to serve a compelling government interest — officer safety during a nighttime highway traffic stop conducted by a senior trooper supervising a new officer — while still leaving Van Net a meaningful vantage point from which to record. The statute was therefore constitutional as applied.
The court also rejected Van Net’s void-for-vagueness challenge, concluding that MCL 750.81d gives persons of ordinary intelligence fair notice of proscribed conduct and does not confer arbitrary enforcement discretion, given that obstruction is limited to physical interference with lawful commands. All remaining claims — Brady violation based on the prosecutor’s office employing Trooper Tardiff’s sister in an administrative role, denial of a bill of particulars, cumulative error, and ineffective assistance of counsel — were likewise rejected as meritless.
Key Takeaways
- Michigan now has a published, binding appellate holding that the First Amendment protects the right to film police officers performing official duties in public — a right previously recognized only in an unpublished Michigan Court of Appeals opinion.
- The right to film police is subject to reasonable time, place, and manner restrictions; a police command is constitutionally valid if it does not target the act of filming itself but imposes a reasonable physical restriction narrowly tailored to officer safety.
- The line between protected First Amendment activity and criminal obstruction under MCL 750.81d is physical compliance: verbal disagreement with officers is protected; physically ignoring lawful commands to maintain distance from an active police scene is not.
- Officer safety at traffic stops — particularly at night, on a highway, with a trainee officer — constitutes a compelling government interest sufficient to justify reasonable spatial restrictions on bystanders, including those who are filming.
- A Brady claim fails where the allegedly suppressed information appeared on the face of the charging documents and had no plausible effect on the outcome of a video-documented trial.
Why It Matters
This decision is significant for both law enforcement and civil liberties practitioners in Michigan. For the first time, the Michigan Court of Appeals has issued a published opinion — binding on all lower Michigan courts — expressly recognizing a First Amendment right to film police in public. That holding clarifies a previously unsettled area of Michigan law and aligns the state with the unanimous consensus of federal appellate courts. Attorneys representing citizens in police encounter cases now have clear published authority to invoke.
Equally important is the court’s articulation of where the right ends. The opinion establishes a workable framework: police may not order a bystander to stop filming, but they may impose narrowly tailored spatial restrictions necessary to ensure scene safety, and physical non-compliance with such restrictions can support an obstruction conviction. For criminal defense attorneys, the case reinforces that as-applied First Amendment challenges to MCL 750.81d require showing that the police command targeted the content or act of filming — a burden Van Net could not meet because the record showed Tardiff’s commands were directed at his physical proximity, not his camera.