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Florida Prosecutor Drops Charges Against NPPA Member; Lawsuit Filed

March 30th, 2012 by Mickey Osterreicher

In January of this year Stephen Horrigan, an NPPA member was charged with felony eavesdropping and misdemeanor obstruction for using his cellphone to record a traffic stop by police officers in North Port, Florida. Horrigan came out of his nearby home to see what was going on and determine the newsworthiness of the situation. For doing nothing more than that, as he stood with other members of the public, he ended up spending a night in jail while facing a five year prison term if convicted on the eavesdropping charge. Adding insult to injury the police seized his phone as “evidence” and held it until recently.

On January 30. 2012 NPPA sent a letter to North Port Police Chief Kevin Vespia, strongly objecting to “the treatment and arrest of NPPA member and freelance photojournalist Stephen P. Horrigan.” The letter went on to state “in addition to the arrest, the fact that Mr. Horrigan’s camera was unlawfully seized is also extremely troubling. We believe that his video of the incident will show that officers acted in an arbitrary, capricious and unprofessional manner and appeared to have no concept of the First and Fourth Amendment rights granted under the United States Constitutions as well as similar protections provided by Florida law.” The letter concluded with the request “that the charges against Mr. Horrigan be immediately dropped; that his equipment and any recordings made by him be immediately returned; and that this incident be fully investigated. We further request that your department immediately issue orders directing officers to cease such activity and also that your department implement revised training for all officers regarding these matters.”

This case was covered extensively in the press by Billy Cox of the Sarasota Herald-Tribune and Carlos Miller of Photography is Not a Crime. As a justification for trampling on the rights of a citizen they produced a Probable Cause Affidavit and also referred to “a legal guideline that our officers have read and discussed during roll call. The issue here is not the video portion but the audio portion. This is the current guideline we use for cases like these. The guideline was issued by the legal counsel of the Palm Beach County Sheriff’s Office and permission was granted for distribution,” according to North Port Police Captain Robert Estrada, in an email.

After reviewing that “January 2010 North Port Police Bulletin #10-12” along with a Law Enforcement News Letter the NPPA sent a scathing email back to Captain Estrada and Chief Vespia citing cases and correcting the misinformation provided in the bulletin concerning the circumstances under which there may and may not be a “reasonable expectation of privacy.” Although there had been some positive dialogue between NPPA and the North Port Police there was no response to the email or even acknowledgement that it had been received.

In February an attorney from the Florida ACLU, Andrea Mogensen agreed to represent Mr. Horrigan, who as of March 11, 2012 had still not heard from the State Attorney’s Office (SAO) as to whether they planned to move forward on the original charges. On March 13, 2012 the Herald-Tribune printed a column by Eric Ernst supporting Horrigan’s’ position. Shortly thereafter Horrigan filed (on his own) a Motion for Hearing: A Plea for Relief from Prior Restraint seeking the return of his smartphone, battery and memory card, and alleging, among other things that the seizure of those items violated the First Amendment to the U.S. Constitution and Article I, Section 4 of the State of Florida Constitution as being a form of prior restraint on his ability to publish that material. He also asserted that as the operator of “a web-site news-gathering ‘blog’ and dues paying member of the National Press Photographers Association” he may not have any greater rights under the First Amendment than the public but that he enjoyed no less right because of it.

A week later a detective came to his house at 7am to tell him that he could pick-up his phone at the evidence room. In utter surprise he found that the video had not been deleted, although he believes that it had been viewed or copied. He posted it on YouTube for everyone to see. So far it has over 4,200 hits. The Herald- Tribune posted an editorial urging police, prosecutors and legislators to improve their guidelines, training and practices and also revise the eavesdropping statute.

Yesterday the SAO declined to prosecute and dropped the charges, noting in a memo that the people could not meet their burden of proof beyond a reasonable doubt and also questioned whether the officer had an expectation of privacy in this instance. As for the “resisting, obstructing, or opposing an officer without violence charge,” State’s Attorney Eric Werbeck concluded that Horrigan did not meet any of the elements constituting that crime either.

While the NPPA is gratified to see that prosecutors had the common sense to drop these charges (as has happened in almost all such cases around the country) it is too bad that the North Port police did not use the same good judgment. As is often said in police parlance “we can do this the easy way or the hard way.” The latter choice resulted in six-figure settlements in two recent cases. Once again, it appears that police ignorance and arrogance concerning constitutional rights may result in another costly combination, ultimately born by taxpayers who can ill afford it.

In a late-breaking development Ms. Mogensen announced in a press release that she has filed a notice with the City of North Port claiming monetary damages in excess of $200,000.00 based upon false arrest, retaliation for the exercise of First Amendment rights, and malicious prosecution.

Posted in Access, confiscated, detained, False Arrest, First Amendment, First Amendment rights, Florida, FLorida ACLU, Fourth Amendment, Fourth Amendment rights, Lawsuit, Legal, Malicious Prosecution, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Public Forum, Public Photography, Reasonable Expectation of Privacy, Recording, Recording Police, retaliation for the exercise of First Amendment rights, Search and Seizure, video cameras | No Comments »

Boston paying $170k for videography arrest

March 27th, 2012 by Alicia Calzada and tagged , , , , , , , , , , , , ,

The Boston Globe is reporting that the City of Boston has paid $170,000 to settle a civil rights lawsuit filed against them after they arrested a man for photographing police activity on the Boston Commons.

The underlying case was the subject of an earlier appellate ruling which held that “peaceful recording of an arrest in a public space that does not interfere with the police officers’ performance of their duties is not reasonably subject to limitation.” Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011).

The case began over four years ago, when Simon Glik was walking past the Boston Commons and noticed three police officers arresting a man. An attorney who believed that the officers might be using excessive force, Glik began recording with his cell phone. Police arrested Glik and charged him with, among other things, violations of the wiretap statute. All charges against him were either dropped or dismissed and Glik filed a federal suit alleging that officers violated his civil rights. The officers argued official qualified immunity but the court denied it, and an appellate court upheld the ruling, holding that “a citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.” Glik v. Cunniffe, 655 F.3d 78, 85 (1st Cir. 2011).

The Boston Police Department initially defended the officers and in 2008 issued a memo stating that the two officers involved did nothing wrong, but back in January the department stated that the two officers would face discipline and used “ureasonable judgment,” according to the Globe.

See other articles on the case by Massacusetts Lawyers Weekly, ARS Technica, and Carlos Miller’s blog.

Read an earlier NPPA post on the First Circuit decision of Glik v. Cunniffe.

Posted in Boston Police, Cameras, cell phone cameras, First Amendment, Massachusetts ACLU, Newsgathering, Photographers' Rights, photojournalism, Police, Recording, Recording Police, video cameras, Wiretap Law | No Comments »

Journalism Groups Protest Prosecution of Photojournalist

March 27th, 2012 by Mickey Osterreicher

Today the Northern California Chapter of the Society of Professional Journalists sent a letter to the Santa Cruz DA stating they are “deeply concerned by your office’s decision to prosecute Bradley Stuart Allen, a longtime San Francisco Bay Area Independent Media Center (Indybay) contributor, as well as by assertions from your office that: (1) a reporter may be prosecuted for conspiracy simply by providing coverage of a newsworthy event and (2) Indybay is not a bona fide news organization.”  Mr. Allen was charged with felony conspiracy along with vandalism and tresspassing for his coverage of an “Occupy” demonstration late last year.  

On March 12, 2012 the NPPA along with the Reporters Committee for Freedom of the Press sent a letter brief to the court seeking  that the charges against him be dismissed in the interest of justice. In the alternative the letter asked for the court to exercise leniency in addressing those offenses. The groups also asserted that because newsgathering is constitutionally protected, the court should carefully weigh the public interest in obtaining information against arguably lesser government interests.

After a hearing last week the judge dismissed the felony vandalism charge, finding that  prosecutors did not meet their burden of presenting sufficient evidence but refused to dismiss  the felony conspiracy and two misdemeanor trespassing charges against him.

The letter sent today by SPJ concluded by saying, “it is wholly inappropriate, and indeed unconstitutional, for a public prosecutor to single out representatives of a disfavored news organization for prosecution. That a photojournalist from The Santa Cruz Sentinel was able to enter the occupied building and report from it without also being subjected to charges brings this abuse into even sharper relief” and strongly urged the DA “to reconsider whether to proceed with this aggressive and dangerous targeting of the independent press.”

Allen’s next court appearance is scheduled for March 29.

Posted in Bradley Allen, condemned, First Amendment, First Amendment rights, law, Legal, National Press Photographers Association, News Photography, Newsgathering, NPPA, Occupy Wall Street, Occupy Wall Street Arrests, photographers, Photographers' Rights, photojournalism, Reporters Committee for Freedom of the Press, Santa Cruz, Vandalism | No Comments »

NPPA meets with Copyright Office

March 23rd, 2012 by Alicia Calzada and tagged , , , , , , , , , , ,

Representatives of the National Press Photographers Association met a couple of weeks ago with attorneys from the United States Copyright Office to discuss copyright small claims solutions and other copyright issues important to photojournalists.

NPPA General Counsel Mickey Osterreicher, NPPA Executive Director Mindy Hutchison, and NPPA Attorney and Advocacy Chair Alicia Calzada took a break from the weekend’s Northern Short Course in Fairfax, Virginia to met with the General Counsel of the Copyright Office and two policy attorneys from the office in Washington, D.C.

Calzada and Osterreicher at the Copyright Office in DC. Photo by Mindy Hutchison.

 

NPPA submitted official comments to the Copyright Office back in January, outlining the challenges that photojournalists have relating to copyright claims, particularly smaller claims, and sharing the organization’s view of what we would like to see in a solution for small copyright claims. Friday’s meeting allowed NPPA to expand on the topics raised in the comments and answer questions from the Copyright Office.  Any small copyright claims solution would likely require passage from Congress.

Click here to read a copy of NPPA’s official comments to the Copyright Office.

 

 

Posted in copyright, Copyright Small Claims, District of Columbia, Legal, National Press Photographers Association, News Photography, photographers, Photographers' Rights, photojournalism, Uncategorized | No Comments »

NPPA SEEKS DISMISSAL OF CHARGES AGAINST TEMPLE UNIVERSITY PJ STUDENT

March 22nd, 2012 by Mickey Osterreicher and tagged , , , , ,

*******UPDATE – See reply from Philadelphia Police Chief Charles H. Ramsey.

******* UPDATE – See attached Philadelphia Police Commissioner’s Memo dated 9-23-11 regarding Photography and Recording of Police Officers While Performing Official Functions in Public Places.  Clearly the officers involved in this incident violated that policy.

The NPPA sent a letter to Philadelphia Police Commissioner, Charles H. Ramsey seeking the dismissal of all charges against Temple University photojournalism student Ian Van Kuyk. Mr. Van Kuyk was arrested on the night of March 14, 2012 outside his residence while taking pictures of uniformed Philadelphia police performing a routine traffic stop.  In addition to the dismissal of all charges, the NPPA also requested that the incident “be fully investigated with commensurate disciplinary measures for the officers involved.”

Mr. Van Kuyk, who was with his girlfriend (also arrested) said he never came closer than ten feet (10’) to the scene when he was ordered back, voluntarily backed up and was at least thirty feet (30’) away when a uniformed police officer approached Mr. Van Kuyk in an aggressive manner demanding that he stop taking pictures. Mr. Van Kuyk politely told the officer that he was a Temple University photojournalism student and also that he was within his rights to be taking photos on a public street.

Without provocation the officer then began pushing and shoving Mr. Van Kuyk. In response to Mr. Van Kuyk’s statement that his rights were being violated in a public domain the officer is alleged to have responded “Public domain, yeah we’ve heard that before!” whereupon he threw Mr. Van Kuyk to the ground and began pushing his face into the sidewalk. In order to avoid having the camera (which he announced was school property) damaged during this assault by your officer Ms. Feighan attempted to retrieve it from Mr. Van Kuyk’s hand but was also taken to the ground by another officer. They were then both handcuffed and placed in patrol cars.

He is charged with five (5) offenses (four (4) misdemeanors and one (1) felony): Obstructing Justice, Resisting Arrest, Hindering Apprehension and two (2) counts of Disorderly Conduct. Ms. Feighan, who originally was at the same station was later taken to a different station where she was detained for more than eighteen (18) hours. Neither of them were told the names of the officers involved, nor did they receive a copy of an accusatory instrument. Ms. Feighan’s preliminary trial was held on March 20th (less than a week after the incident) and Mr. Van Kuyk’s is scheduled for April 16, 2012.

 

 

 

 

 

 

 

 

it is also alleged that at least two (2) officers came up to Mr. Van Kuyk’s window and made threatening comments to him. He was then taken to the 1st  District police station where he was held for nearly twenty-four (24) hours. He was not allowed to make a telephone call for nearly eight (8) hours at which time he was told (for the first time) that he was being charged with disorderly conduct.

 

Upon Mr. Van Kuyk’s ROR he came to learn that he was being charged with five (5) offenses (four (4) misdemeanors and one (1) felony): Obstructing Justice, Resisting Arrest, Hindering Apprehension, Disorderly Conduct and Disorderly Conduct – Fight II. Ms. Feighan, who originally was at the same station was later taken to a different station where she was detained for more than eighteen (18) hours. Neither of them were told the names of the officers involved, nor did they receive a copy of an accusatory instrument. Ms. Feighan’s preliminary trial was held on March 20th (less than a week after the incident) and Mr. Van Kuyk’s is scheduled for April 16, 2012.

 

Posted in Access, First Amendment, First Amendment rights, Fourth Amendment, Fourth Amendment rights, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Public Photography, Student, students | No Comments »

NPPA Objects to Interference With & Detention of Journalists by Chicago PD

March 19th, 2012 by Mickey Osterreicher

The NPPA sent a letter to Chicago Superintendent of Police, Garry F. McCarthy, objecting to the interference with and detention of two (2) Chicago journalists and requested that the incident be fully investigated. WGN reporter Dan Ponce and WMAQ photographer Donte Williams, were standing on a public sidewalk outside a hospital while covering the fatal shooting of a six-year-old girl.

According to reports and video recorded at the scene a Chicago police officer (identified by nametag as Ward, 010 District, Ogden) is heard using profanity as he orders journalists who were standing on a public sidewalk to move across the street. He is also heard to say “your first amendment rights can be terminated if you create a scene.” When asked how they were creating a scene he responded, “your presence is creating a scene,” when in fact there was no “scene” until this officer created one by issuing an unlawful order.

In a statement released yesterday, the Chicago Police Department said that “members were attempting to protect and respect both the grieving family members of the child, and the memory of the child herself during a very stressful time for all parties involved.” The Mission Statement and Core Values of the Chicago Police Department states (among other things) that it “is committed to protect the lives, property, and rights of all people, to maintain order, and to enforce the law impartially.”

In its letter “NPPA asserts that your officers failed to uphold any of those values. Furthermore, it is neither a police officer’s duty or right to decide what is appropriate news coverage of any story. So long as news personnel are in a public forum and not violating any ordinances they have a right to gather news unfettered by the personal feelings or opinions of law enforcement. Anything less may be considered a form of prior restraint or censorship.”

NPPA also expressed its concern that the apparent lack of discipline and training of CPD officers will result in further incidents during the upcoming NATO Summit meeting in May.

A copy of the letter was also sent to the Hon. Rahm Emmanuel, Mayor, City of Chicago, Frank Whittaker, General Manager, WMAQ-TV and Greg Caputo, News Director, WGN-TV

Posted in Access, Chicago, Chicago Police, detained, First Amendment, First Amendment rights, Fourth Amendment, Fourth Amendment rights, Illinois, law, Legal, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Public Photography, Recording, Recording Police, Search and Seizure, video cameras, WGN, WMAQ | No Comments »

$1.4 Million to man who was beaten by police while recording them

March 16th, 2012 by Alicia Calzada and tagged , , , , , , , ,

The city of Boston will be paying out $1.4 million to a man who was tackled by police while videotaping.

According to the Boston Globe, Michael O’Brien accused a police officer of knocking him to the ground while he was videotaping another police officer with a cell phone.

Read the full story here.

Boston is also the city where attorney Simon Glik case was arrested for videotaping police arresting and beating a man in the Boston Commons. The First Circuit, a federal appeals court, recently ruled that Glik’s First Amendment rights were violated by the arrest.

Posted in Access, Boston Police, First Amendment, Massachusetts ACLU, Newsgathering, Photographers' Rights, photojournalism, Police, Recording, Recording Police, video cameras, Wiretap Law | No Comments »

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