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NYPD Officer Indicted After Investigation of NPPA Member’s Unlawful Arrest

August 28th, 2013 by and tagged , , , , ,

An NYPD officer accused of roughing up and illegally arresting a New York Times photographer has been indicted on multiple charges stemming from an incident last August. Robert Stolarik, an NPPA member, was violently accosted and taken into custody while photographing Officer Michael Ackermann who was trying to arrest a teenage girl in the Bronx.

Officer Ackermann claimed Stolarik hindered police work by repeatedly aiming the flash of his camera at the officer’s face. That story crumbled under investigation by the NYPD Internal Affairs Bureau (IAB). The Bronx district attorney also learned that Stolarik did not have a flash on his camera at the time of the incident, and concluded the officer’s story was a lie. Ackermann now faces three felonies and five misdemeanors, and could see up to seven years in prison if convicted of the most serious charge.

Working with New York Times’ Vice President and Assistant General Counsel George Freeman after the arrest, NPPA General Counsel Mickey Osterreicher sent a letter to NYPD Deputy Commissioner Paul Browne objecting to Stolarik’s unwarranted arrest and rough treatment. Freeman and Osterreicher also requested that the photographer’s equipment and press credentials, both seized at the time of the incident, be immediately returned. In addition the NPPA publicly criticized the NYPD for their actions.

Stolarik’s ordeal was especially troubling because he was arrested in direct violation of NYPD’s own Patrol Guide directives as noted in a follow-up letter from Osterreicher to Browne. Osterreicher also sent a letter to the editor, which was published in the NY Times. In it Osterreicher urged “the New York Police Department to work with us to improve training and supervision for its members.”

Robert Stolarik displays his NYPD press credentials in Tampa. FL, received 2 days before the RNC (photo by Mickey Osterreicher)

The NYPD returned Stolarik’s equipment in the days following the NPPA’s first letter. Osterreicher’s continued negotiations with the department resulted in the release of the photographer’s press credentials two weeks later. Ongoing efforts by George Freeman resulted in prosecutor’s ultimately dropped all charges against Stolarik.

The internal investigation that resulted in Officer Ackermann’s indictment is an encouraging sign in what was otherwise a troubling year for the NYPD’s relationship with photographers. Soon after Stolarik’s arrest, police conducted a campaign of intimidation and interference against photographers covering the anniversary of the Occupy Wall Street protest. Stolarik himself had been forcibly prevented from covering the actual rally the previous year. Several journalists were detained or arrested at the Occupy anniversary. The NPPA also responded to these incidents.

Incidents such as this are becoming all too common throughout the country. Many officers apparently do not know or disregard photographers’ First Amendment rights. Despite assertions two years ago that the NYPD was providing improved training to its officers the situation in New York City has not improved. “We have been unsuccessful in arranging a meeting with the new NYPD Deputy Commissioner for Legal Matters (DCLM) or the Deputy Commissioner for Public Information (DCPI) to discuss these issues,” said Osterreicher. “Commissioner Kelly and his staff met with members of the media after the arrests of 26 journalists in Zuccotti Park in November of 2011, after which he issued a Finest message directing members of the NYPD to cooperate with the press. At the time I said that it was a good start but since then it appears to be just another piece of paper as far too many officers and supervisory staff ignore its directives,” Osterreicher added.

On behalf of the NPPA, Osterreicher has continued to advise and train police agencies around the country in an effort to improve police-press relations. The First Amendment is not absolute but subject to reasonable time, place and manner restrictions. While police may have the discretion to limit access when public safety or other legitimate law enforcement activities so dictate, they may not order someone to stop taking photographs or recording video in a public place, especially if other members of the public are allowed to remain and observe those activities.

As Osterreicher says in his police training: “We can do this the easy way or the hard way!” It is indeed unfortunate that rather than respecting the Constitution and the Bill of Rights that they are sworn to uphold some officers believe that they are a law unto themselves. For Officer Ackermann it may have been a very costly mistake to view a photographer with a camera with suspicion and contempt. Everyone has a job to do: for a police officer it is to provide public safety and enforce the law; for a visual journalist it is to gather and disseminate news. It would best serve both purposes if this case helps to encourage cooperation between the two professions rather that continued conflict. As often is the case it’s the enlightening truths that prove most elusive.

Posted in Access, DCPI Paul Browne, False Arrest, First Amendment, First Amendment rights, Legal, National Press Photographers Association, New York TImes, News Photography, Newsgathering, NPPA, NYPD, Occupy Wall Street, Occupy Wall Street Arrests, photographers, Photographers' Rights, photojournalism, Press Credentials, Public Photography, Recording Police, Robert Stolarik | No Comments »

California Anti-Paparazzi Law Would Threaten First Amendment Rights

August 16th, 2013 by and tagged , , , , , , , , , , ,

Earlier this summer the California legislature proposed a new “anti-paparazzi” bill, which NPPA opposes. More recently, Actresses Halle Berry and Jennifer Garner testified before the California State Assembly, voicing their support for the bill that carries with it serious First Amendment implications. The measure would make it illegal to photograph a child because of their parent’s job (i.e, acting) without the parent’s permission, and expands the scope of existing California harassment law while increasing the penalty for a violation.   Photographers convicted under the measure could face up to year in prison.  SB 606 would also allow an aggrieved party to pursue enhanced civil suit against a photographer.

If the bill is ultimately signed in to law, anyone with a camera who tries to get a snapshot of a celebrity’s child could be liable if their conduct “alarms, annoys, torments, or terrorizes the child” and causes “substantial emotional distress.”  It’s not the clearest of legal standards, and the bill doesn’t offer much more in the way of explanation, something NPPA General Counsel Mickey Osterreicher took issue with in opposing the bill.  “We are extremely concerned that the bill as it pertains to photography and recording is overly broad and vague and infringes upon otherwise protected forms of speech and expression,” Osterreicher said, also noting that the terms used in the bill are “vague and susceptible to subjective interpretation.”

The mercurial relationship between the Hollywood “paparazzi” and the stars they photograph is well documented.  Confrontations are not uncommon.   Protecting children is certainly a laudable goal, but there are already laws in place for situations when someone, photographer or otherwise, steps over the line.  With this in mind, Osterreicher contends that the measure in question unjustifiably blurs the line between actual harassment and valuable First Amendment activities, saying “[the bill] fails to recognize those acts done for valid newsgathering or expressive purposes and in fact creates additional liability for visual journalists and members of the public with a camera.”

“[T]he First Amendment has permitted restrictions on few historic categories of speech, including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct,” Osterreicher continued. “Visual images and recordings of another person, albeit a child, who is out in public where there is no reasonable expectation of privacy should not be added to that list.”

Again, there’s a difference between punishing photographers who harass someone and defining photography as harassment in and of itself.

This isn’t the first time the California legislators have targeted photographers. A 2010 anti-paparazzi law was called into question earlier this year, when a judge threw out charges against a photographer who authorities say was driving recklessly while attempting to get picture of Justin Bieber.  The judge said the law was unconstitutionally broad and violated the First Amendment.   The NPPA along with the Reporters Committee for Freedom of the Press and six other media organizations filed and Amicus Letter Brief on behalf of the photographer. That ruling is currently under review.

SB 606 passed the California State Assembly and is set to go to appropriations committee.  As the bill moves closer to becoming law, legislators should take care not to allow a distaste for the manner in which some photographers conduct themselves to undermine their ability to uphold their duty to defend free speech rights guaranteed to all citizens.

Posted in anti-paparazzi, California, First Amendment, First Amendment rights, Legal, National Press Photographers Association, News Photography, NPPA, Paparazzi, photographers, Photographers' Rights, photojournalism, Public Photography, Reasonable Expectation of Privacy, Reporters Committee for Freedom of the Press | No Comments »

Photographer Prevails In First Amendment vs Privacy Case

August 5th, 2013 by Mickey Osterreicher and tagged , , ,

A New York City judge has ruled in favor of photographer Arne Svenson, who was being sued by the parents of minor children whose photographs appeared in an exhibit entitled “The Neighbors.”  In May of this year, Martha and Matthew Foster filed a complaint alleging among other things that Mr. Svenson had violated New York State’s Civil Rights Law by using images of their children without permission for commercial and promotional purposes. They had also sought  a preliminary injunction to prevent the dissemination, display and sale of those images.

Mr. Svenson, an artist and photographer, had taken the photos with a telephoto lens from his apartment of residents living across the street and included them in an exhibition at a Chelsea Gallery. That showing led to a number of news articles which in turn brought the issue to the attention of the Plaintiffs.

In dismissing the case, Judge Eileen  A. Rakower, denied the Plaintiffs Order to Show Cause for their failure to establish a likelihood of success on the merits. because she found the photos protected by the First Amendment as an art form and shielded from New York’s Civil Rights Law Sections 50 and 51. “Through the photos, Defendant is communicating his thoughts and ideas to the public,” she wrote adding “they serve more than just an advertising or trade purpose because they promote the enjoyment of art in the form of a displayed exhibition.” “The value of artistic expression outweighs any sale that stems from the published photos,” she wrote.

The judge also found that because “art is protected by the First Amendment, any advertising that is undertaken in connection with promoting that art is permitted.”  She further found that “‘The Neighbors’ exhibition is a legitimate news item because cultural attractions are matters of public and consumer interest” and that  news organizations and broadcasters  “are entitled to use Defendant’s photographs of Plaintiffs, which have a direct relationship to the news items – the photos are the focus of the newsworthy content.”

Noting that it might make parents “cringe to think their private lives and images of their small children can find their way into the public forum of an art exhibition, there is no redress under the current laws of the State of New York.”  She then concluded by stating,  “an individual’s right to privacy under the New York Civil Rights Law sections 50 and 51 yield to an artist’s protections under the First Amendment under the circumstances presented here.”

In a comment regarding the decision, Nancy E. Wolff, who helped  represent Mr. Svenson said, “I have always maintained that photos are entitled to First Amendment protection as expressive works, irrespective of whether they are sold or if they are otherwise commercially exploited”

The Plaintiff was represented by Richard G. Menaker, Esq. of Menaker & Herrmann LLP. The Defendant was represented by Nancy E. Wolff, Esq. and Matthew A. Kaplan, Esq. of Cowan, Debaets, Abrahams & Sheppard, LLP

 

Posted in First Amendment, First Amendment rights, Lawsuit, Photographers' Rights, Privacy, Reasonable Expectation of Privacy, Right of Publicity | No Comments »