Kim and Montagnino Fire Back at Judge’s Temporary Restraining Order

As reported in my last blog posting, at the request of Saratoga County District Attorney Karen Heggen, New York Supreme Court Justice Dianne Freestone issued a temporary restraining order on Wednesday, November 23, restricting Saratoga Springs city officials from further releasing certain kinds of information surrounding last weekend’s shootings on Broadway.

It didn’t take long for Public Safety Commissioner James Montagnino to appear in multiple media outlets misrepresenting the judge’s actions.

Saratoga Springs Public Safety Commissioner James Montagnino has become a media favorite. It is not surprising. He is poised, self-confident, and dramatic in his delivery. He enjoys dropping legal terms that appear to give his remarks a certain gravitas. And he makes himself endlessly available, especially to TV reporters. Unfortunately, given their scarce resources, the media rarely has the time to fact-check his pronouncements.

Nowhere is this more problematic than in the coverage of Montagnino’s response to the judge’s decision.

Montagnino quickly issued a press statement making the following claims:

1. His constitutional right to free speech was being violated by the order.
2. The action by the judge issuing the restraining order was “jurisdictionally defective.”

Commissioner James Montagnino issued the following statement to WNYT:

“While the District Attorney claims to be seeking to protect Constitutional rights, she has blatantly violated the First Amendment by obtaining a jurisdictionally defective order, without notice to the city, which deprives elected officials of their right to inform the public of profoundly important events unfolding in their city. I have spoken to Mayor Ron Kim and the city intends to fight this in court promptly and vigorously.”

Commissioner Montagnino

Channel 6 news has a video of their interview with Montagnino. The following is an excerpt from the transcript:

“I find it beyond offensive that the district attorney has somehow managed to get a court order preventing the elected officials of this city from discussing the circumstances surrounding that incident,” Montagnino told CBS6. “We’ll be in court as soon as possible to attempt to see that this is lifted or at least narrowed to a reasonable scope. It’s facially unconstitutional to bar an elected official from commenting on a matter of significant importance to the city that he or she represents.”

Channel 6 News November 24, 2022

Mayor Ron Kim issued a similar, if less artful, statement:

“We have a responsibility to the public to make sure that they know what has gone on and that’s all what we were doing when we initially made the presentation and showed them body cam video,” the mayor added.

Mayor Ron Kim

Unpacking What the Judge Actually Ordered

In fact, the actual order sought by Karen Heggen, the Saratoga County District Attorney and approved by Judge Dianne N. Freestone, was carefully limited in its scope and much more specific than was represented by Kim and Montagnino to the media. It states those city officials, including the Mayor, Public Safety Commissioner, and public and elected employees acting in an official capacity:

“shall refrain from releasing any further street camera footage, police body camera footage, surveillance footage, private video footage, audio footage, audio transcripts, or any other information that would tend to identify witnesses, their statements to law-enforcement or describe in detail any physical evidence or results in scientific tests with the ongoing investigation.”

Restraining Order

According to the Channel 6 story, the judge also ordered that the same people named in the temporary restraining order:

“refrain from making any further public comments characterizing any evidence, speculating as to the quality and quantity or quality or clarity of any evidence and presenting opinions or legal conclusions as to the ongoing investigation.”

Restraining Order

In other words, the judge ordered that Montagnino, Kim, et al. avoid making public statements that might hinder or undermine the investigation of the shooting incident and any potential prosecution that may ensue.

While this definitely restricts Montagnino and Kim and other city officials, to a layperson like this blogger this order does not seem “overly broad,” as claimed by Montagnino nor does it bar them from “commenting on a matter of significant importance to the public”, but only from making comments that could interfere with the ongoing criminal investigation of the shootings and potentially future prosecutions.

Violating the Right to Free Speech?

One of Montagnino’s and Kim’s objections to the judge’s order was that they claimed it violated the First Amendment to the Constitution by limiting their ability as public officials to “inform the public of profoundly important events unfolding in their city….”

In an interview with the Times Union, Kim went even further claiming “It’s unfortunate Karen Heggen couldn’t carry out her duty in a free society, to allow people their right to freely speak….Certainly it’s [the judge’s order] not consistent with our constitution. There is just no reason to seek a gag order of public officials who have a duty to the taxpayers.”

James Montagnino and Ron Kim often remind their audiences that they are lawyers. As such they are no doubt aware that there are ample examples regarding the limits of free speech. There is the classic “you can’t shout fire in a crowded theatre” restriction, for instance, and slander is not protected speech.

I will acknowledge that there is no simple line that can be drawn in these matters, and I do not have the full text of the judge’s order, but the precipitous release of evidentiary materials such as videos before the investigators have had time to process the information in them, including the identifying and contacting of witnesses, seems problematic. This is especially true in light of the fact that Montagnino had been asked by “other organizations” (his words) not to release this key evidence.

City officials should be careful that they take no actions that might jeopardize the Constitutional right of defendants to a fair trial by an impartial jury or that will undermine the ability to properly determine culpability.

Montagnino’s Dubious Claim

Montagnino’s other complaint was that the judge’s order was “jurisdictionally defective.” I spoke with a number of lawyers, all of whom expressed puzzlement as to what Montagnino meant by this phrase since the NY Supreme Court clearly had jurisdiction over this case, and the order was temporary. I have written to the Commissioner asking him for a definition of the term he used. I will let you all know when I hear from him.

Kim and Montagnino also complained that they were not notified that Heggen was requesting a restraining order and therefore were not in court to make their arguments before the judge.

The several attorneys I talked with dismissed this complaint.

The DA had the right to seek a temporary restraining order. That action can be taken “ex parte” (even this blogger can throw around legal terms). This means that the law does not require both parties to be present for a judge to issue the order. This is a temporary order, and according to channel 6 news, the city will have an opportunity to challenge the order at a hearing on December 22, 2022.

Yet Another Vanity Suit

I am not a lawyer, and while my sources say Montagnino is wrong on the law, Montagnino and Kim have made it clear they intend to challenge the order. We will only find out who is right when and if there is an appeal with a decision.

For me, the question is, why would the city spend money on appealing this decision?

One has to ask, what do Montagnino and Kim want to say, or what evidentiary information would they want to release that this order would restrict?

I guess we will learn more when the city pays for attorneys to represent it at the December 22 hearing.