Appellate Judicial Notice Using Google Map

Using Google maps, Tenth Circuit takes judicial notice of the "general location" and approximate distances of the incident involving political protestors under FRE 201, as reported by Google Maps's “Distance Measurement Tool”; court determines the plaintiffs were located 150 yards south of the area "Presidential supporters had been placed," so that the supporters were close to and within viewing distance of the President's motorcade, in Pahls v. Thomas, _ F.3d _ (10th Cir. June 4, 2013) (Nos. 11–2055, 11–2059)

The Federal Evidence Blog has previously noted the Routine Judicial Notice of Google Map and Satellite View. A prior post noted that "the resources of the Internet ... are becoming common place and generally accepted sources of information," so that it presents little grounds for controversy under FRE 201. A recent Tenth Circuit case continues this trend, but in a slightly different manner. Unlike other cases in which the appellate court evaluates the judicial notice accorded to certain facts by the trial court (normally under an abuse of discretion standard), apparently neither the district court nor the parties addressed the location of the underlying dispute, leaving it to the circuit to consider the matter through its own use of the Internet.

In August 2007 political protestors -- both for and against the Bush Administration -- planned gatherings upon the route of a Presidential Motorcade during a fundraiser at the local town mayor. After the President's visit, the Anti-Bush protestors filed a civil rights complaint alleging that federal and local officials had deprived them of their First Amendment right to petition. Allegedly the "viewpoint" discrimination against the plaintiffs arose because at the function the President was to attend "two groups of demonstrators await[ed] the President's arrival." One group of "protesters" was directed "to stand 150 yards south of the mayor's driveway on Rio Grande Boulevard, at a location called the southern checkpoint." A group of "supporters" was permitted "to stand directly across from the mayor's driveway, on private property to the east of Rio Grande Boulevard, some six to fifteen feet from the roadway. The supporters were much closer to, and directly in view of, the President's motorcade as it entered the mayor's driveway. The protesters, by contrast, were much farther away, and their view of the motorcade—and, likewise, the President's view of them—was obstructed by police cars and horse-mounted officers situated at the southern checkpoint." Pahls, __ F.3d at __.

The plaintiff protestors alleged disparate treatment since "they were subjected to unconstitutional viewpoint discrimination when local police officers and agents of the United States Secret Service forced them to remain at the southern checkpoint and simultaneously allowed Bush supporters to stand on private property north of the checkpoint in closer proximity to the President's motorcade." As the case developed the federal defendants a sought summary judgment claiming qualified immunity from suit. The trial court denied their entitlement to immunity as there "were 'question[s] of fact' concerning both whether plaintiffs were subjected to viewpoint discrimination and whether each official personally participated in the alleged constitutional violation." The defendants appealed this court order. Pahls, __ F.3d at __.

The Tenth Circuit agreed with the defendants that they were entitled to qualified immunity. Part of the circuit's assessment focused on the evidence as to where the parties were at the time of the incident. Apparently the parties had little disagreement as to the facts of the location -- the issue was whether the locations were proof of viewpoint discrimination. The trial court did not assess this matter beyond the fact that one group was placed within view of the Motorcade, while the other group was removed from the site to a remote checkpoint out of view of the Motorcade. In considering the issue of viewpoint discrimination, the circuit attempted to provide some further detail as to the geography of the site of the incident. The circuit noted that special jurisdictional questions remained and to help resolve them the circuit -- apparently sua sponte -- decided to take judicial notice of:

a Google map and satellite image as a ‘source[ ] whose accuracy cannot reasonably be questioned’ “ for purposes of this case. " The map in the appendix identifies the approximate location of the southern checkpoint—150 yards south of the mayor's driveway—based on Google Maps's “Distance Measurement Tool.

Pahls, __ F.3d at __ n.1.

As briefly explained by the circuit, it needed a more precise understanding of the location of the alleged discriminatory incident to ensure that it had jurisdiction over the case: "Although typically a denial of summary judgment is not an appealable final order, we possess interlocutory jurisdiction when the district court denies qualified immunity at summary judgment. This is a limited jurisdiction, however, and we may review the denial only to the extent that it “turns on an issue of law.” Pahls, __ F.3d at __ (citing Fogarty v. Gallegos, 523 F.3d 1147, 1153 (10th Cir. 2008); Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)).

In taking judicial notice of the location of the incident, the circuit cited a number of other cases that provided guidance with regard to judicial notice of a web site, including:

  • United States v. Perea–Rey, 680 F.3d 1179, 1182 n.1 (9th Cir. 2012)
  • Citizens for Peace in Space v. City of Colo. Springs, 477 F.3d 1212, 1218 n.2 (10th Cir. 2007) (taking judicial notice of an online distance calculation that relied on Google Maps data)
  • United States v. Piggie, 622 F.2d 486, 488 (10th Cir. 1980) (“Geography has long been peculiarly susceptible to judicial notice for the obvious reason that geographic locations are facts which are not generally controversial ....”)
  • David J. Dansky, The Google Knows Many Things: Judicial Notice in the Internet Era, 39 Colo. Law. 19, 24 (2010) (“Most courts are willing to take judicial notice of geographical facts and distances from private commercial websites such as MapQuest, Google Maps, and Google Earth.”)

The Pahls case provides an example of the circuit's application of judicial notice in the appellate context where the factual findings of the lower court were not entirely sufficient to provide for appellate jurisdiction. It also highlights the continued use of the Internet to establish matters involving judicial notice.

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