A Sioux Falls Constitutional Lesson on the 1st Amendment

While I don’t recommend anyone tell the police to ‘F’ck Off’ while they are working on a traffic issue, it is perfectly legal to do so as long as the person isn’t interfering in their work. The person in the video below did say some ‘mean’ things, but he wasn’t interfering with the traffic investigation. He was also on a public sidewalk. In fact the PD were about to leave when they decided to attack him.

I keep telling the city a big 1st Amendment case is coming, if not several, and they are really screwed on this one. This is why they should all have body cameras, because these kind of arrests would start going away once officers start getting fired.

The first video is the incident (lots of cussing BTW) and the second video is the cameraman asking the PD what happened.


#1 D@ily Spin on 08.10.19 at 3:22 pm

Body cameras pay for themselves as indisputable evidence. People respect the police when they know they’re being recorded. Cameras can be turned on and off during and after an incident. Police can still frequent donut shops and hide in parks between calls. It’s both stubborn and dumb to not have cameras. They drive new SUV’s. Keep them an extra year and buy cameras. The city should worry about the history of court cases citing false arrest and unsubstantiated harassment. Don’t bother making a complaint at city personnel. They won’t take it. Anytime police show up, record with your cell phone whether or not you’re involved. It seems you must protect yourself and others from rogue cops.

#2 Conservative Here on 08.10.19 at 5:32 pm

Whether the police were wrong or not, I would need to see some regulations but, both these guys are complete tool bags just looking to make trouble. This was a run of the mill car accident and the Communist with the Che Guerrero shirt showed up just to be a dick and instigate. If these were not cops and he just started telling people to F@ck off he would have probably gotten his ass beat by someone. Guys like this are just looking to instigate and cause trouble. Whether the police were wrong or not, this shit just needs to end. Best part is he admitted he had been arrested 35 times. Sounds like a real winner to me.

#3 When are they going to arrest the Bunker Ramp developers & their political cronies? on 08.10.19 at 6:00 pm

No crime had been committed. The Police officer asks him what is going on. The individual responds that he can back off and because of all of this, the individual is considered to be resisting arrest? What was the probable cause for the officer to question the officer? Absence probable cause, the officer was intimidating the individual, and thus, the individual was just in asking the officer to back off. I guess there will be one last overlay of asphalt this year, or next, to pay for this constitutional screw-up, huh?

#4 Was the Bunker Ramp built for the Police? on 08.10.19 at 10:18 pm


Next you are going to tell me that they recently shot a man in the courthouse parking lot and or that they had an unarmed man attacked by a police dog…..But, but, we have a Levitt and some lighted Arcs, though….

#5 Lemming on 08.10.19 at 10:22 pm

‘I got a camera and I’m gonna go F with the cops until they arrest me’. Sorry, but here is my advice to the cameraman and the bearded homeless dude. Get jobs! Like real jobs? Do something other than be total piles of goo. I’m sure there is a “Poo Patrol” out there somewhere that would be happy to put you to work in the biomedical waste field.

#6 The Argus & KDLT are a "Yes," but why are KELO & KSFY a "NO?" on 08.10.19 at 11:14 pm

So far the Argus and KDLT have covered this story some 24 hours afterward, but why not KELO and KSFY? Isn’t KELO into “Investigations?” The video does have an overcast to it, perhaps there’s a weather story here, too. And KSFY, is this why you want to merge, so that KDLT can do the news part?

This story has a First Amendment quality that goes beyond the arrest and to the duty of the fourth estate….#ItsTimeToActMyFriends!

#7 Russ on 08.11.19 at 9:58 am

Judging by the comments on the video, I think I’m in the minority here, but here’s a few thoughts:

1. I don’t know who this “James Freeman” is, never heard of him. Obviously a fake name. Why is he afraid to use his real name? We know he’s from out of state, because he had to ask the officer for the area code.

2. What is the point of stopping and filming a routine traffic accident on 41st in front of the mall? How is that news? This guy is obviously some kind of wanna-be Live PD social justice warrior looking for stories where there are none. My guess is he doesn’t really care much about how pointless his videos are as long as they generate views so he can monetize.

3. The guy who got arrested was not arrested as a denial of his “free speech”. There are basic social caveats that come along with free speech. Don’t yell “FIRE!” in a crowded theatre, don’t walk up to a bunch of cops at an accident scene and start flipping them off, yelling and waving your hands around at them for no reason other than you’re on camera and want to show off how tough you are. When a police officer approaches you to ask you a question, it’s best not to start waving your hands around in their face and then start trying to run away. This Freeman guy CREATED this situation by encouraging this other guy to “RUN! RUN!”. He knew exactly what he was doing…trying to create his own little reality TV scene.

4. I’m having a hard time seeing what exactly the cops did wrong here. In light of the current threatening climate of the country, and the increase in shootings in Sioux Falls, I believe the cops had good reason to question this guy as to what his issue was. Again, when a cop asks you a question and your response is to run away, you end up face down on the pavement. Not because you flipped off the cop. Not because your free speech is being violated; but because you are just plain dumb. Put yourself in the cops shoes. This man is agitated and yelling at us. Does he have a weapon? Is he someone who is emotionally unstable and in need of assistance? Why is he now running away? This is a stupid 41st street car accident that happens ten times a day. There is no reason for either of these guys to be here. They are purposely provoking the police and preventing them from doing their primary job of dealing with the accident and making sure there’s not a second accident.

5. In summary, this “John Freeman” is only looking to boost his numbers on You Tube. He showed up at a benign situation and purposely turned it into a confrontation for the purpose of manufacturing controversy. I hope we never hear of this guy again, but I’m sure we will. now that he’s had his big moment in the spotlight, he’ll stick around and keep pulling these pointless stunts until he ends up getting someone hurt for real.

#8 l3wis on 08.11.19 at 1:47 pm

It wasn’t a Che’ shirt. I have one, it looks nothing like that. He explained in the video that it was a pro wrestler on his shirt (a knockoff of the famous OBEY shirt of Andre the Giant).

As for him, yes, I agree with most of you, total tool, and a Class ‘A’ ass, but if you watch the video, you can tell the police were trying to grab him. Grab him for what? The PD had the right to tell him to shut up, but that’s about all they had the right to do. There was a similar situation DT at the beginning of summer I witnessed on a First Friday. A guy was standing in front of Shriver yelling various profanities about various politicians at passerbies. The PD was called, they asked him to shut up and move on. He shut up and walked off. That is how you handle ‘tools’. Or better yet, at Friday’s incident, they simply could have all just drove off and ignored him. That is what a ‘smart’ officer would have done, now, as I understand, we have a 1st Amendment case on our hands because our cops want to act like a Milbank cop instead of a SF cop.

#9 Scott D Hudson on 08.11.19 at 3:17 pm

The shirt is for the wrestler Daniel Bryan, who this guy sort of looks like. His old gimmick was that when he was brought out the entire arena would start yelling “yes yes yes”.

Here’s an example, and he’s even wearing that stupid shirt – https://www.youtube.com/watch?v=SpWZ32YTFw4

#10 'Extremely' Stable Genius" on 08.11.19 at 3:31 pm


I totally disagree with your fourth contention. You can tell by the body language of the officer that his intent was to grab him from the start. And what probable cause was there to question him? And can you really “resist an investigation?” What’s the legitimate investigation? How is the arrested person’s foul mouth relevant to the car accident? Or, does one’s exercise of free speech really need to be investigated and can it be constitutionally? Or even better yet, is every conversation one has with an officer an actual investigation?

Many years ago, Larry Flint won a First Amendment case against Jerry Farwell (1980). The case involved Flint publishing a political cartoon suggesting some rather lewd actions between Farwell and his mother.

Although, that cartoon was awful and offensive in many ways, it was protected free speech given that Farwell was a public figure; and it is a precedent like that, that continues to afford all of us our free speech today.

So by fair analogy, if we do not allow the person who was arrested in this SF case to say what he wants, no matter how offensive – absence subjecting himself to a possible liable statement – then we will begin to walk down a slippery slope as to what our First Amendment rights really are, I am afraid.

Often, it takes the absurd and obnoxious to test and demonstrate our rights and whether they really exist.

And the next time you see an officer, please do not tell them to “Fxxk Off,” but please also do not arrest someone for doing it either.

#11 l3wis on 08.11.19 at 3:50 pm

I would also like to say that up until the point the PD decided to tackle Mr. Burgess, if they would have just left, they could have used the video as an example of;

1) We left, because it was the professional thing to do, and we don’t let people like this get to us

2) it shows how sometimes we are treated when we are simply doing our jobs.

But instead, as Mr. Freeman points out, they let their egos get the best of them and decided to engage him.

#12 "'Extremely' Stable Genius" on 08.11.19 at 4:44 pm

Let me add one more thing. If we allow that initial officer in this incident to be in the right, then we as a society have weaponized the authority of an officer to question and or investigate, and have thus, afforded a means in which to criminalize our First Amendment rights by our law enforcement community.

Oh, and where is a big part of our local media on this one? Are they waiting for the Monday morning police briefing, so as to allow the SFPD ample time to put their spin on it?

#13 D@ily Spin on 08.11.19 at 5:19 pm

There were certain relevant but broad range charges threats. It’s interfering with an investigation and disturbing the peace. Police can insist on ID, subdue with cuffs, and do a pat down until they complete a background check. This seems to be constitutional rights infringement. It’s not. There’s a polite police way to deploy these methods to show someone they should not interfere. Virtually anyone can be taken into custody if they obstruct or show signs of aggression. Sorry, it’s no longer a free country. Police have to face dopers and guns every day. This is what they must do to control a circumstance and protect themselves. I am aware of a few bully cops. Cameras will keep suspects and police on their good behavior.

#14 anominous on 08.11.19 at 7:08 pm

Got between the police cars and told the cop to “back the F___ away”…? What do you expect, hippy?

#15 Rachel on 08.11.19 at 8:10 pm

There are many instances when the first amendment should be talked about and exercised liberally. It’s unfortunate when assholes like these two toxify it.

#16 LJL on 08.11.19 at 10:49 pm

Does anyone know who the camera man was? There’s some folks who would like to talk to him.

#17 4 crying kids and a wife on 08.12.19 at 10:15 am


Check out the local RV parks. He said he’s living in an RV.

He’ll be the guy who leaves his 4 crying kids and his wife in the car (his own words) on a hot, muggy day while he’s out trying to protect everyone’s First Amendment rights.

Both these guys are provocateurs and losers.

I doubt the public knows the full story. This guy has been arrested 35 times.

The scary part is you put these two provocateurs in a volatile crowd of people and you have situations like we’ve seen all across the country.

Both of these guys need to be put on the radar of multiple levels of law enforcement.

#18 "'Extremely' Stable Genius" on 08.12.19 at 12:40 pm

Yep. They waited for the briefing:


#19 When is the State's Atty. going to convene a grand jury concerning the Copper Lounge collapse? on 08.12.19 at 12:58 pm

“Did you know, that if I don’t like what you are saying, that I can call it ‘disorderly conduct?'”……”How cool is that, huh?”

“Yah, but what I want to know is when did ‘investigating’ become ‘containing?'”

#20 Conservative Here on 08.12.19 at 1:05 pm

Scott – Did I read that right, you own a Che Guevara T-shirt or you own a “obey the giant” T-shirt. I hope its the latter because I would be surprised that you owned a T-shirt glorifying the Marxist/communist guerrilla who was responsible for thousands of deaths and was an all-out terrorist. He wanted to spread communism throughout Latin America and did it through violence.

#21 Ljl on 08.12.19 at 3:03 pm

The problem with the first and second amendment hinges on the notion that citizens are moral. The lack of morality with these folks is problem.

Anyone who feels sorry for the POS arrested needs to spend a few moments watching what he has posted to yahoo with his children sharing.

The cop snapped and needs some retraining. The creep live-streaming at the crash was the bait for the lunatic who was arrested. Social media is a tool easily as dangerous as any assault rifle.

#22 Ljl on 08.12.19 at 3:07 pm

Correction. He posts to YouTube

#23 "'Extremely' Stable Genius" on 08.12.19 at 3:25 pm

Say CH, with our fore fathers having killed millions of Indians to spread capitalism throughout North America, is it still okay to wear a Mt. Rushmore t-shirt?

(…”I am afraid next a guy is going to get in trouble around here for the type of t-shirt they wear in front of the police”…)

#24 Has the Copper Lounge state grand jury started yet? on 08.12.19 at 3:36 pm

“Both of these guys need to be put on the radar of multiple levels of law enforcement.”

But why, if the police handled this one correctly?

#25 In want of a Sioux Empire Fair corndog! on 08.12.19 at 3:53 pm


How is exercising ones First Amendment rights immoral?

Now, claiming to exercise your assumed 2nd Amendment rights by shooting at people is, however…. You’re right on that one, I must admit.

#26 l3wis on 08.12.19 at 4:15 pm

This isn’t a question of morality or how you treat other people, it’s a question of law. He was not interfering with police work. While they had a very good reason to ask him why he was spouting off, they had no right to try to detain him. Free speech is legal, even the ugly stuff. Besides, if we are going to start arresting people for saying insulting things, there’s a certain person in DC that should have been locked up a long time ago.

#27 RSL on 08.12.19 at 4:56 pm

I am not an attorney or student of the law. However, I am a fan of facts and of the United States Constitution. However, the man videoing is clearly trying to antagonize and/or incite violence against police by the mere act of live-streaming; the evidence being that this Mr. Burgess left his home and sped down the interstate (by his own words to the cameraman) to try to be on the stream to insult and interfere with the actions of SFPD because he has a hate for law enforcement (evidence being his long history of similar behaviors).

In State v. Suhn (2009), the SD Supreme Court reversed a lower court decision convicting a man of similar conduct. I have read that opinion. The US Supreme Court, in Chaplinsky v. New Hampshire (1942), found that not all speech is protected free speech. Rather, some categories of speech can be prosecuted. That decision has been narrowed further. However, “fighting-words” are still not protected free speech. Fighting-words “tend to incite an immediate breach of the peace” with proof consisting of “[t]he test is what men of common intelligence would understand would be words likely to cause an average addressee to fight.”

In today’s world where law enforcement officers routinely overreact and kill people (innocent or otherwise) and where people now target law enforcement officers for assassination, I do not find fault in the officers attempting to ascertain why Mr. Burgess was, without provocation, hurling profanities at the SFPD. The actions of the cameraman when confronted by other citizens shows that the intent of these words and actions (live-streaming) is to create a scene whereby violence is a potential by-product. Will these individuals admit to violence being the end goal? Of course not. Would they attempt to stop such violence? No.

I understand reacting to law enforcement overreach. I have seen it myself. I have witnessed PD antagonizing a patient under arrest, but needing medical clearance. I have had to ask them to stop and please allow my patient to remain silent (as the patient would do when not confronted by PD)–criminal or not. I get it.

I do not get purposely attempting to irritate someone to the point where you are hoping they either arrest you (as in this case) or utilize a higher form of control. Was the officer approaching in an “aggressive” manner? No. He was approaching in a manner that protected him. He did not know what was about to happen. In his mind, he is prepared for the worst: a gun, a knife, or plain old fists. This is why the man, referenced by Mr. Burgess in the video, was shot by SFPD and others at the courthouse complex recently. It is a basic premise of any sort of defensive training: approach in a way that protects yourself.

Kudos to SFPD for maintaining civility and composure, especially the officer who, as the video ended, kept calm and talked to the cameraman and even gave him (and his live-streaming partners) the non-emergent phone number.

Also, just a heads up: Under no circumstances is an officer obligated to call a “supervisor” to any scene if he or she does not feel that is necessary. They control the scene.

I have no interest, financial or otherwise, in SFPD, the city of Sioux Falls, or any other law enforcement agency. I am a registered nurse at local medical facility.

#28 LJL on 08.12.19 at 6:01 pm

Yelling F&$K the police during a simple traffic accident on 41st is immoral. It may be protected free speech, but it’s still immoral.

Walking into a Missouri Walmart wearing body armor and carrying a AR may be protected by state law, but it’s equally immoral.

Knowing what is and isn’t immoral really isn’t that hard.

#29 l3wis on 08.12.19 at 6:57 pm

I think we have determined that Mark was being a jerk, but I remind you to watch the incident. It looked like to me that the police were about to leave, and the one PO actually stopped his vehicle, and walked over 30 feet to approach Mark. I guess if I was a PO in the safety of my vehicle, and I thought Mark was a threat, why would I leave my vehicle and approach him? He never flashed a weapon or even said anything threatening, what made the officer decide to escalate a situation? I don’t know. I still think that the outcome could have been a lot different if they just would have ignored a man who the PD knew was a rabble rouser. Why give Mark what he wanted, ATTENTION. Now that attention is going to cost SF and Minnehaha county taxpayers a lot of money because the officers involved didn’t practice professional control.

#30 Conservative Here on 08.12.19 at 8:14 pm

VSG – Are forefathers did not kill millions of Indians in the name of Capitalism, that is just absurd. Many died due to diseases the Europeans spread. Yes, there was massacres and horrible things done but, it was not done in the name of Capitalism. Your deflecting from the question of Che Guevara being a communist/Marxist. Capitalism is not perfect but, it’s far Superior to Communion. Name one Communist country that is better off than the US, I will be waiting.

I would never want anyone attacked for the shirt they wear, I might call them a dumbass but, no need to attack people as your reference in your quote ”I am afraid next a guy is going to get in trouble around here for the type of t-shirt they wear in front of the police”. I only know one group in the US that is getting its ass kicked for wearing unapproved T-Shirts and its not folks wearing shit like this.

#31 "'Extremely' Stable Genius" on 08.12.19 at 9:21 pm

“Live-streaming” means violence? Really, RSL? Does a newspaper editorial page mean revolt, too? Does the fact that the Argus and KDLT reported this from the start, whereas KELO waited until Monday, mean that the Argus and KDLT are enablers to violence, while KELO is merely guilty of what, law enforcement spin?

Given the reality to which many in white America have just begun to become aware of through the Black Lives Matter movement, isn’t it imperative that the cameras roll and not cease?

What happen Friday afternoon was a test of our constitutional rights and the local PD failed that test; and its on camera.

In fact, one could easily argue that this incident would have never happen without a camera, and that all of this is a by-product of the realities which have become known from prior cameras rolling, and that before those cameras were rolling, incidents were happening that were not documented properly, but thank goodness now they are beginning to be whether it be this incident or others.

#32 Ljl on 08.13.19 at 8:59 am

I said the cop was wrong and needs retraining or more, just how much do you think people can take of this shit.

I’m always way more interested in the root cause of these examples of bad humans. Social media is a magnet for the immoral.

Consider this: if the cops follow this douche bag, it’s harassment. But he follows them, it’s his first amendment.

#33 "'Extremely' Stable Genius" on 08.13.19 at 11:15 am

“Consider this: if the cops follow this douche bag, it’s harassment. But he follows them, it’s his first amendment.”

That’s right. Do you have a problem with this?

#34 "Extremely' Stable Genius" on 08.13.19 at 11:27 am


Capitalism has been our mode of economics as a nation from the start and “Manifest Destiny” was driven by it, and in so doing is responsible for the deaths of millions of Indians.

You ask about a successful communist state or reality, well, every successful American corporation shows it true communist tendencies. The CEO is the chairman of the party, the board of directors are the politiburo, and the stockholders are the rubber stamp Supreme Soviet.

Communism is about the control of the means of production and who controls it. And doesn’t every corporation control its own means of production except that individual corporations are much smaller than a large communist state.

Perhaps, your indictment of the efficacy or potential success of a communist state gives light to the fact that there are economies of scale which definitely come into play when it comes to a communist state and its ability to succeed. Hence, why corporations often prevail, but not at the level of a given country; and when they – the corporations – become to big, they then hide under the veil of “to big to fail,” which then ironically calls upon them to rely upon a government to bail out what is suppose to be a private and not public entity from the start.

#35 Conservative Here on 08.13.19 at 2:44 pm

LJL – What you fail to realize is that you are arguing points with many on this blog who have little or no respect for Law & Order.

There is always this “well its our rights”! Well it is your right but, doesn’t mean its in good taste nor offensive. Its my right to walk down the street with an AR15 and belts of ammo, doesn’t mean its a good idea nor would it not provoke some folks or scare them. Its your right to burn the flag too, doesn’t mean its not unpatriotic or disgusting

Too often these Social Media @ssholes are being celebrated as some sort of hero. This guy who filmed it is just a douche looking to cause problems and needs a real job. The same people that will argue its his right to do this ( not saying he doesn’t have one) are the same folks who argue that we have a “social contract” in society to take care of people etc. Wouldn’t that same social contract mean being a decent citizen instead of agitating cops and getting arrested 35+ times. Well they can’t have it both ways and I feel bad for the PDs across this country having to deal with unruly citizens treating them like sh!t and getting away with it. 99% of cops are good people who just want to serve but, have a crappy job. Yes at times I think they can be jerks but, I at least understand why at times have a bad attitude dealing with clowns like this everyday all day. Just blows my mind really that this guy shows up to a normal traffic accident just looking for problems. The job is incredibly difficult and the folks who bash them wouldn’t have the balls to put on a uniform and serve but, like to be Arm Chair QBs on Monday morning second guessing the play. Many on here are pontificating about so many other things but, its pretty simple

1 – Guy has a right to be an @sshole
2 – Cop probably should have just left/ignored him
3 – Guy is an @sshole and the scourge of society and probably deserved his @ss kicked
4 – Some lawyer will take this guys case and probably win a settlement for doing the wrong thing
5 – Just because its legal doesn’t make it right
6 – Dude with camera instigated and made situation worse

#36 LJL on 08.13.19 at 6:03 pm

I thought I’ve made it clear but I’ll state it again. I rarely argue or debate with anyone other than Scott. I don’t waste my time reading the ramblings of what many of these flakes post. I just assume it’s some combination of a Trump/Hitler/CNN/republican/religion/Russia rant.

#37 "'Extremely' Stable Genius" on 08.13.19 at 7:43 pm

But it is these extreme exercising of rights and their legitimate survival, which make the exercising of those rights thought to be within the norm, thus protected.

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