A man whose arrest was captured on a viral live stream last August is appealing a judge’s conviction that said he was obstructing police.
Mark Allen Burgess was charged with delaying, obstructing or resisting an officer in the discharge of their duty and fleeing from a uniformed officer in August 2019 after he was being streamed on a live video of YouTuber James Freeman, in which Burgess is seen yelling obscenities to police who were investigating a crash nearby.
Burgess, 36, was convicted in a March court trial of obstructing an officer and acquitted of fleeing He was ordered to pay $150 in fines and court fees.
He’s appealing the trial court’s decision, saying the facts of his case don’t support the conviction.
The 11-page brief, filed by Burgess’s attorney Manuel de Castro this week, shares examples of other cases and United States Supreme Court rulings that discuss detention and whether citizens can act in a way to “avoid such contact.”
City of Sioux Falls Attorney Keith Allenstein said in an email Friday that he will be responding to the brief in the 30 days allotted and had no further comment at this time.
In Florida v. Royer, the U.S. Supreme Court ruled that a person approached “need not answer any question put to him…He may not be detained even momentarily without reasonable, objective grounds for doing so.”
In another example, State v. Hodges, the South Dakota Supreme Court ruled that an officer was justified in detaining a passenger in a legally stopped vehicle who left the scene and didn’t listen to commands.
The brief says Burgess was never told he was under arrest before or while being handcuffed, and says the responding officer was not dispatched for people fighting or needing assistance.
The officer testified in the court trial that, “up to the point he grabbed (Burgess’s) arm, (Burgess) had committed no crime,” according to the brief. The officer went on to say he was “guessing that…(Burgess’s) agitation level would pour out in to something worse,” and that is why he was detaining him, according to the brief, which quoted court transcripts.
Second Circuit Court Magistrate Judge Patrick Schroeder in his ruling said he believed the officer was “within his right to try to detain or get control of Mr. Burgess to find out why he was yelling … And part of, I think his job, is to keep the peace, to try to figure out what’s going on.”
The transcript quoted in the brief says Schroeder went on to say he didn’t think Burgess was guilty of fleeing because “everything that happened is all probably comes under the layer obstructer (sic) resist by backing away.”
Burgess was approached by an officer while being streamed on a live video by Freeman, who has more than 100,000 followers and regularly goes around the country to live record uniformed police officers. The video later shows officers take Burgess to the ground and arrest him for what they said was resisting while they were trying to do an investigation.
The video showed Burgess flipping off the camera and saying obscenities about police, and at officers who were investigating an unrelated crash nearby. Burgess and Freeman spend a few minutes talking about their YouTube channels and things to do in South Dakota, such as Sturgis Rally. The video shows an officer approach Burgess, say, “hello,” and “what’s going on today.” Burgess responds and says “Don’t (obscenity) talk to me,” and “you (obscenity) back the (obscenity) away.” The officer grabs for Burgess, who backs away. The video then shows officers take Burgess to the ground and place him under arrest.
Police have previously said they reviewed the “videoed encounter,” but aren’t sharing the results publicly, citing it as a personnel matter. Before the court trial, Allenstein filed motions to ensure files shared with the defense weren’t distributed to a third party, saying “South Dakota law recognizes that law enforcement reports are confidential and not subject to public inspection.”
Email reporter Danielle Ferguson at firstname.lastname@example.org, or follow on Twitter at @DaniFergs.
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