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Illinois Supreme Court to Allow Trial Courts to “Experiment” with Courtroom Cameras

January 23rd, 2012 by Mickey Osterreicher and tagged , ,

According to the Chicago Sun-Times, the Illinois Supreme Court will begin to permit cameras in trial courts on an experimental basis in the state’s 23 circuits.

“The Supreme Court plans an announcement [Tuesday] dealing with cameras in the courtroom on an experimental basis,” said Joseph Tybor, a spokesman for the state’s high court.

Cameras in the Courtroom at the trial court level has been a high priority for Illinois Chief Justice Thomas Kilbride, who has been a staunch advocate on behalf of this issue.

Coverage of the state’s appellate courts and the Supreme Court has been allowed since 1983, but up until now cameras  have been banned at the trial court level.

Posted in Access, broadcasting, Cameras, Cameras in the Courtroom, First Amendment, First Amendment rights, Illinois, News Photography, Newsgathering, photographers, Photographers' Rights, photojournalism | No Comments »

NPPA Comments to the Copyright Office on Copyright Small Claims

January 18th, 2012 by Alicia Calzada and tagged , , , , , , , ,

On Tuesday the NPPA submitted official comments to the U.S. Copyright Office in response to the office’s request for comments on the idea of creating a system to adjudicate copyright infringements when the damages are low, also called Remedies for Small Copyright Claims.

The brief, written by NPPA attorneys Mickey Osterreicher and Alicia Wagner Calzada, with a significant contribution from board member Greg Smith, outlines the challenges specific to photojournalists, notes characteristics that would be important in the solution and presents ideas for framing a system.

A claim for copyright infringement can only be brought in federal court, but lawsuits in federal court cost tens of thousands of dollars in legal fees, making it rare that a photojournalist will find the claim worth bringing. In addition, the rapid turnaround of news photography makes it virtually impossible for photojournalists to register their work prior to publication, which results in increased risk in bringing a case. Although a successful copyright plaintiff can sometimes get an award of legal fees, there is no guarantee that the defendant will be able to pay those fee. As the comment notes, “For those infringements that are discovered, most will never be prosecuted because it is economically unfeasible for the creators to commence an action in federal court.”

A small claims solution for infringements that are not worth hundreds of thousands of dollars would increase the ability of photojournalists to police their work and get compensated fairly for violations of their copyright.

NPPA is looking forward to working on this potential solution with the copyright office and with other photo organizations.

Read the official final_Copyright Small Claims Comments 01-17-12-1

 

 

 

Posted in D.C., Legal, National Press Photographers Association, News Photography, photographers, photojournalism, Uncategorized | No Comments »

NPPA protests arrest of San Diego Photographer – Investigation Underway

January 18th, 2012 by Alicia Calzada and tagged , , , , , , , , ,

Earlier this week NPPA member and San Diego freelance photojournalists Edward R. Baier was arrested while covering an incident near the San Diego River.

Reports state that Baier was on public property and complied with officers in respecting a perimeter they set up. Yet he was arrested and his camera gear was seized.

The department responded to NPPA almost immediately, with Assistant Chief Boyd Long telling Osterreicher that the equipment would be returned and that an internal investigation had been initiated. Baier’s camera, tapes and other seized equipment were returned to him the next day.

After the incident Baier said, “if it wasn’t for Mickey Osterreicher’s letter from the  NPPA I would not have had my equipment returned to me.” “I am very proud to be a member of an organization the has the legal resources available to its membership at anytime,” he added.

To read the letter sent by NPPA, click here: San Diego Police Letter 01-16-12-1

See also, article here.

Posted in Access, Cameras, confiscated, First Amendment, First Amendment rights, Legal, National Press Photographers Association, News Photography, Photographers' Rights, photojournalism, Public Photography | No Comments »

Judge Dismisses All Charges Against R.I.T. Student Photojournalist Covering Occupy Rochester Protest

January 12th, 2012 by Mickey Osterreicher

Inside an almost packed courtroom, Supervising City Court Judge, the Hon. Teresa D. Johnson issued her Decision in the People v Acuff, et al.  All charges against 28 defendants were dismissed without prejudice.  Those defendants, except for one, had been part of an Occupy Rochester protest. The lone journalist was my client, 20 year-old R.I.T. photojournalism student Jonathan Foster. Mr. Foster is also a student member of the National Press Photographers Association (NPPA) which is why I had been asked to represent him.

Mr. Foster was charged with trespass (New York State CPL § 140.05) and for violating the Rochester Municipal Code (§79 -2- c. Remaining after park closing hours) on the night of October 29, 2011. From videotape evidence and a witness statement, it appears that Mr. Foster was on a public sidewalk at the time of his arrest although the accusatory instrument, based upon information and belief, stated he was in Washington Square Park shortly after its 11.p.m. closing time. His assigned story and photos were published 5 days later by the weekly R.I.T. Reporter in print and online at http://reportermag.com/article/11-04-2011/occupy-rochester-leads-to-arrests.

Before we ever got to court I had written letters to the Rochester Police Department, the District Attorney and the Mayor. All requested the same thing – dismiss the charges against Jonathan as had been done in so many other cities around the country where journalists were caught up and arrested along with protesters. All the letters were ignored.

In the letters I argued (to no avail) “that although not unlimited, the media enjoys a broad right under the First Amendment to photograph in public places such as streets and sidewalks. These rights are rooted in the First Amendment’s strong protection of speech within ‘public forums,’ the most commonly recognized examples of which include streets, sidewalks, and public parks.”

I was surprised that the police and prosecutors were unmoved. Months before this incident, I had met with Rochester Police Chief, James M. Sheppard, in order to help his department draft improved police-press guidelines after Emily Good (also one of the defendants in this case) had been arrested in June and charged with obstruction of governmental administration as she videotaped a traffic stop from the front lawn of her house. Her charges were dropped but not until the video had gone viral and the case became nationally publicized.

Jonathan and I had been in court together twice before. On November 17, 2011, I appeared on his behalf and filed a motion to dismiss. On that occasion he came with his parents who had driven five hours from Pennsylvania to support their son. The ADA offered and ACD (Adjournment Contemplating Dismissal). That would have meant that after 6 months and a few hours of community service the charges would have been automatically dismissed. We rejected that offer because Jonathan had already performed a community service by taking an publishing the photos but more importantly, since the OWS movement is unlikely to go away anytime soon, I worried that Jonathan would find himself back covering another demonstration, with its risk of another arrest. If that happened these original charges could be reinstated along with the new ones. It’s what’s known as getting jammed-up.

Instead I filed a 21 page motion to dismiss, arguing first that the information forming the basis for the arrest was defective in that “every element of the offense charged and the defendant’s commission thereof must be established by ‘non-hearsay allegations of the factual part of the information and/or of any supporting depositions.” Almost two months later the court agreed, finding that Chief Sheppard (did I mention that he was there that night, made a number of arrests, had his picture taken by Jonathan and signed the accusatory instrument against all the defendants?)  “does not sufficiently allege non-hearsay factual allegations establishing every element of trespass.”

The dismissal motion also argued that the charges against Mr. Foster should be dismissed “in the furtherance of justice.” Pursuant to CPL §170.40, “an accusatory instrument . . . may be dismissed in the interest of justice . . . when, even though there may be no basis for dismissal as a matter of law . . . [where] such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice.” In Jonathan’s case there were many such factors, the first of which was that that at the time of the alleged incident he was not there to protest but as a journalist covering a story of public interest. The United States Constitution has long protected the right to a free and robust press. The ability to gather and disseminate news is abridged when the government, under color of law, interferes with and arrests journalists reporting on issues of public concern.

Another factor to be considered in a motion to dismiss in the interest of justice is the “character and condition of the defendant.” Here Jonathan had much to commend him. He is in his junior year with a 3.43 GPA, attending R.I.T. on a presidential scholarship and a member of the honors program. He is an Eagle Scout. He has never been in trouble with the law, has never been arrested or charged with any crime before the instant matter. His first pictures were published in the Reporter Magazine in October 2009 and he has worked for the Reporter Magazine regularly since October 2010. In October 2011 he became a staff reporter/photographer.

Additionally, Mr. Foster was wearing (go to link to see a photo of his arrest) a sky blue shirt from his school magazine over his raincoat with large block letters spelling “REPORTER” on the front and he identified himself as such at the time of his arrest. He was also taking pictures with a professional Nikon camera, lens and flash unit, whereby any reasonable person should have observed and known that he was a journalist covering a news story.

In the meantime the Rochester Democrat & Chronicle printed an editorial on November 23, 2011 The headline read “Uphold First Amendment rights” and went on to state that Jonathan’s “prosecution could have a chilling effect on First Amendment rights to freedom of the press. District Attorney Mike Green should reconsider.” He didn’t.

In another appearance on December 14, 2011, I made those arguments orally along with more than a dozen other attorneys representing various defendants. The judge listened and then reserved her decision. Until Today.

But today the Judge never reached those issues and denied dismissal on those grounds because then she would have had to dismiss “with prejudice,” which, means that Monroe County would be precluded from re-filing the charges. Remember the second sentence of this story? “All charges against 28 defendants were dismissed without prejudice.” Pursuant to today’s decision, that means should police or prosecutors decide to re-file any of these charges the “complaints and supporting depositions [ ] must establish non-hearsay allegations with respect to each individual defendant.” (emphasis added)

As a photojournalism student Jonathan says that this incident proved a valuable if not difficult lesson for someone just starting out. Let’s hope it is a “teachable moment” for the police, prosecutors and the courts as well.

 

Posted in First Amendment, First Amendment rights, Interest of Justice, law, Legal, Motion to Dismiss, National Press Photographers Association, News Photography, Newsgathering, NPPA, Occupy Rochester, Occupy Wall Street, photographers, Photographers' Rights, photojournalism, Police, Public Forum, Public Photography, R.I.T., Rochester Police, Student, students, trespass, Without Prejudice | No Comments »

New Developments in the Ongoing Assault on the Right to Photograph/Record in Public

January 12th, 2012 by Mickey Osterreicher

January 10, 2012 might not be a day that any real headlines were made but in the ongoing assault on the right to photograph/record in public, events took place in two separate cases that may mark the start of a change in how this issue is viewed by the courts and police. First, in the United States District Court for The District Of Maryland, the Department of Justice filed an 18 page ““Statement of Interest of The United States” ” Sharp v. Baltimore City Police, et al.

According to the complaint, filed by the ACLU of Maryland in August 2011, “this is a civil rights action challenging as unconstitutional the Baltimore City Police Department’s warrantless arrest and detention of plaintiff Christopher Sharp, as well as the seizure and destruction of Mr. Sharp’s property, premised upon Mr. Sharp’s exercise of his rights under the federal and Maryland constitutions to document the conduct of City police officers performing their public duties in a public place.”

That complaint which was filed in the Circuit Court for Baltimore City Maryland and later removed to federal court stems from an incident in which Christopher Sharp videotaped police using excessive force to effectuate the arrest of a female friend while they were in the Pimlico Race Course Clubhouse at the 2010 Preakness Stakes. Video taken of the beating by another observer can be found on YouTube: http://www.youtube.com/watch?v=nWF3Ddr7vdc.

Sharp refused police requests to surrender his video as “evidence”, whereupon it is alleged that police “seized his cell phone, and detained him while one officer left the area with the phone. After the officers returned the phone, Mr. Sharp discovered that the officers had deleted video of the arrest and all other videos that had been stored on the device, including numerous videos of his young son and other personal events.”

“This litigation presents constitutional questions of great moment in this digital age: whether private citizens have a First Amendment right to record police officers in the public discharge of their duties, and whether officers violate citizens’ Fourth and Fourteenth Amendment rights when they seize and destroy such recordings without a warrant or due process. The United States urges this Court to answer both of those questions in the affirmative” the DOJ statement read in what is believed to be the first time it has weighed in on the issue of recording police. “The right to record police officers while performing duties in a public place, as well as the right to be protected from the warrantless seizure and destruction of those recordings, are not only required by the Constitution. They are consistent with our fundamental notions of liberty, promote the accountability of our governmental officers, and instill public confidence in the police officers who serve us daily.”

In the second case, Glik v Cunniffe, 655 F.3d 78 (1st Cir. 2011) (denying qualified immunity to officer on arrestee’s First and Fourth Amendment claims), the Boston Police Department concluded an almost four (4) year internal investigation. In a letter to Mr. Glik, cell phone cinematographer Simon Glik, superintendent Kenneth Fong of the Boston Police Department’s Bureau of Professional Standards said that officers had shown “unreasonable judgment” by taking him into custody.

By way of background – while walking through Boston Commons in October 2007, Massachusetts criminal defense attorney, Simon Glik, observed three Boston police officers attempting to arrest a suspect. After hearing another bystander say “you are hurting him, stop” and being concerned that the police were using excessive force Glik began to record the incident on his cell phone camera from about ten feet away. Once the suspect was in handcuffs one of the officers told Glik “I think you have taken enough pictures.” When Glik continued to record another officer asked Glik if he was recording audio. When Glik said yes he was handcuffed and arrested by police. The charges were unlawful audio recording in violation of  Massachusetts’ wiretap law, disturbing the peace and aiding in the escape of a prisoner. After his arrest Glik filed a complaint with internal affairs regarding the incident. The Boston Police “did not investigate his complaint or initiate disciplinary action against the arresting officers.”

In February 2010, Glik, represented by the Massachusetts chapter of the ACLU, filed a civil right complaint in the United States District Court for the District of Massachusetts against the three arresting officers as well as the City of Boston under 42 U.S.C. § 1983 for violations of his First and Fourth Amendment rights. The complaint also alleges state-law claims under the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11I, as well as malicious prosecution.

The defendants moved to dismiss under FRCP 12(b)(6) for failure to state a claim for which relief can be granted and because the officers were entitled to qualified immunity. At a motion hearing the district court denied the defendant’s motion, stating that “in the First Circuit . . . this First Amendment right to publicly record the activities of police officers on public business is established.”

In its decision the First Circuit reasoned that, given the facts in Glik, since “the qualified immunity doctrine ‘balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably;’ ‘a reasonable defendant would have understood that his conduct violated the plaintiff[’s] constitutional rights.’”

The City of Boston appealed this ruling on behalf of its officers (See:  City’s Brief and  ACLU Brief; as well as two amicus briefs: Center for Constitutional Rights and Reporters Committee for Freedom of the Press).

Apparently following up on Glik’s initial 2007 complaint to police  “a department spokeswoman told the Boston Globe that the officers, John Cunniffee and Peter Savalis, now ‘face discipline ranging from an oral reprimand to suspension.’” Glik told the Globe, “As far as I knew, my complaint was summarily dismissed. . . . I was basically laughed out of the building,’’ Glik said. “From what I understand, it takes filing a federal lawsuit in order for internal affairs to review a complaint.’’

That lawsuit and the one in Sharp now move forward with new momentum. It will also be interesting to see what impact this has on the awaited decision in ACLU v Alvarez before the Seventh Circuit. Stay tuned!

Posted in Access, Baltimore Police, Boston Police, cell phone cameras, Christopher Sharp, confiscated, Department of Justice, DOJ, First Amendment, First Amendment rights, Fourth Amendment, Fourth Amendment rights, law, Legal, Maryland ACLU, Massachusetts ACLU, National Press Photographers Association, NPPA, photographers, Photographers' Rights, Police, Public Photography, Recording Police, Search and Seizure, Simon Glik | No Comments »

NPPA Objects to PATCO Website Page Equating Photography with Terrorism

January 10th, 2012 by Alicia Calzada and tagged , , , ,

UPDATE: Although the offending language was removed (see below) in response to questions from a reporter for phillymag.com, DRPA spokesperson, Tim Ireland issued a follow-up statement, saying “amateur photographers and members of the general public may be stopped and asked who they are, what they’re doing and why they’re doing it.”

******On 1/18/12 Mickey H. Osterreicher sent a follow-up letter to DRPA President & CEO John J. Matheussen, asserting that photography by itself is not a suspicious activity.

****** As of 1/12/12 the language that NPPA complained about in the very first bullet point, which states, “Individuals observed filming or photographing passing trains, locomotives, freight cars, passenger cars, rail yard operations, tracks, bridges, tunnels, commuter rail trains, subway trains, transit trains, stations and platforms” has been removed from the PATCO website.

NPPA this week voiced its objection to the Port Authority Transit Corporation (PATCO) posting on its website that photography is a suspicious activity. In a strongly worded letter  to Delaware River Port Authority of Pennsylvania and New Jersey (DRPA) Chairman, the Hon. Tom Corbett, NPPA general counsel, Mickey H. Osterreicher, said “on behalf of NPPA and its members, I strongly object to PATCO’s depiction of photography as ‘suspicious’ or somehow being equated to terrorist activities.”  According to its website, DRPA “is a regional transportation agency serving the people of Southeastern Pennsylvania and Southern New Jersey.” It owns and operates the Benjamin Franklin, Walt Whitman, Commodore Barry, and Betsy Ross bridges. PATCO is a DRPA run subsidiary.

At issue is the language contained on the “Safety & Security” page of the PATCO website (http://www.ridepatco.org/safety/suspicious.html). Specifically, the wording at the top of that page entitled “What Should I Consider Suspicious?” on which the very first bullet point states, “Individuals observed filming or photographing passing trains, locomotives, freight cars, passenger cars, rail yard operations, tracks, bridges, tunnels, commuter rail trains, subway trains, transit trains, stations and platforms.”
NPPA has previously pointed out to numerous groups and law enforcement agencies that photography in all its forms (still, film, digital and video) are First Amendment-protected activities and should not be considered suspicious absent articulable facts and circumstances that support the suspicion that the behavior observed is not innocent, but rather reasonably indicative of criminal activity associated with terrorism or other crimes.

According to Osterreicher “the practice by government officials to question, detain and interfere with lawful behavior by photographers under the guise of preventing terrorist activities has become a daily occurrence and has resulted in a significant increase in the harassment and arrest of photographers nationwide.”  The letter went on to say that “the abridgement of a constitutionally protected form of expression because of that erroneous belief is only reinforced by your specific reference to photography as being part of some sinister act or pernicious activity.”  As in other instances NPPA is gravely concerned that by placing the words “individuals observed filming or photographing” at the top of PATCO’s list of activities the public should “consider suspicious” it has unnecessarily and unconstitutionally planted the seed that photography is a distinctly suspect pursuit. NPPA  takes the position that the PATCO web page, targeted at the general public, creates “a climate that chills free speech under the pretext of safety and security.”

To provide a little background into the often unknown and often times overlapping labyrinth of government agencies established to combat terrorism, the Information Sharing Environment (ISE) was established by the Intelligence Reform and Terrorism Prevention Act of 2004. According to its website “the Program Manager was granted government wide authority to plan for, oversee the implementation of, and manage the ISE. Click here to learn more about the Background and Authorities of the ISE.”  Language found in the ISE – Suspicious Activity Reporting (SAR) Criteria Guidance table lists and defines “photography” as “taking still or moving pictures of sensitive locations within a facility that have no apparent aesthetic value (e.g., personnel, security camera or guard locations, equipment, systems, emergency evacuation instructions), etc.” NPPA argues that PATCO has broadened even this misplaced definition into one that fails “as a reasonable time, place and manner restriction because it limits far more speech than is necessary to serve a substantial government interest.”

The letter referenced past NPPA advocacy efforts such as working with Amtrak to develop reasonable guidelines concerning photography for both the public and its employees (see: http://tinyurl.com/y8uzseh) and concluded with NPPA’s offer to work with PATCO “to help develop appropriate guidelines and implement proper training in order to avoid these situations” and that  PATCO remove “photography” from its list of suspicious activities.

Copies of the letter were sent to Sean Elliot, NPPA President; U.S. Department of Homeland Security (DHS) Secretary, Janet Napolitano; and Ed Barocas,  Legal Director of the NJ ACLU.

Posted in Access, Cameras, First Amendment, First Amendment rights, National Press Photographers Association, News Photography, NPPA, PATCO, photographers, Photographers' Rights, photojournalism, Public Photography, Regulations limiting photography, Suspicious Activity, Terrorism | No Comments »