Today (8/23/12) the New York Police Department (NYPD) returned the press credentials of a New York Times photographer who had his equipment and credentials seized following his arrest on August 4th.

Robert Stolarik, who was arrested on charges of obstructing governmental administration and resisting arrest while photographing police activity on assignment, said, “My cameras were returned to me two weeks ago. Getting my gear back was the first step and now I have my credentials. The next part of this process will be getting the charges dropped.”

The return of his credentials was a result of the efforts by National Press Photographers Association (NPPA) general counsel, Mickey H. Osterreicher and New York Times attorney George Freeman, who expressed his satisfaction with “such a great result.” Osterreicher who negotiated with NYPD legal staff said, “We are very appreciative that the NYPD reconsidered their position with regard to the return of Robert’s credentials but still believe it is unfortunate that they were taken in the first place and we will work very diligently to see that the charges are dismissed.” “We hope the department uses this incident as a teachable moment in improving police-press relations in NY,” Osterreicher added.

The return of the seized equipment on August 10, 2012 came days after the National Press Photographers Association (NPPA) sent a letter to Deputy Commissioner Paul J. Browne of the NYPD that objected to the rough treatment and arrest of Stolarik and requested that his equipment be returned to him.

Osterreicher also sent a letter to the editor which was published by the NY Times on that same Friday morning, in which among other things, the NPPA attorney urged “the New York Police Department to work with us to improve training and supervision for its members starting from the top down .”

The American News and Information Services (ANIS) filed a Complaint Wednesday in federal district court seeking redress for the repeated violation of the First Amendment rights of an ANIS employee by San Diego City and County government officials.

The complaint alleges that San Diego law enforcement exhibited a pattern of First Amendment rights violations by giving law enforcement officers excessive discretion to prevent access to and recording of public safety activity.  It also alleges that the pattern is further evidenced by the San Diego Police Department’s (SDPD) exclusive authority to issue media credentials and the retaliatory actions taken against those who attempt to exercise their right to record.

“The SD Defendants, despite a revolution in access to news brought on by rapid technological advances, still seek through the use of government-issued press credentials control of the message through control of the messenger,” the complaint states.

James C. Playford, a National Press Photographers Association (NPPA) member who began work for ANIS after the SDPD refused to renew his press credentials, has been arrested four times since 2010 while attempting to cover public safety activities.  Three of those arrests resulted in the seizure of Playford’s equipment and raw video.  A photo and physical description of Playford was also allegedly disseminated to San Diego law enforcement identifying him as an individual prohibited from access to public safety activity.

San Diego law enforcement agencies have come under fire recently due to repeated arrests of photojournalists.  The NPPA sent a letter  to the SDPD and along with one from the American Civil Liberties Union of San Diego and Imperial County (ACLU) which they referenced on their website, requesting an end to police interference with photojournalists’ rights to record events occurring in public.  Wednesday’s letter was NPPA’s third letter to San Diego law enforcement this year concerning the rights of photojournalists.

“While the press may not have any greater access rights than the public to these incidents, they have no less rights either,” said Mickey H. Osterreicher, general counsel for NPPA, in his letter to the SDPD.  “Unfortunately a number of your officers have abused their discretion in limiting those press rights and then have detained and arrested our members when questioned about such discriminatory acts.”

In the most recent media controversy, NPPA member and freelance photojournalist Edward Baier was arrested on July 20th by the SDPD and charged with interfering with a police officer, though Baier claimed he was attempting to film from private property with the owner’s permission.  Baier said he was tackled by two officers during the altercation, causing him injuries requiring medical attention.

Baier’s arrest was his second this year by the SDPD.  In January, police told Baier to move away from the scene of a drowning, though the public was allowed to remain inside of the police tape.  When Baier protested, he was arrested and charged with resisting arrest.  The arresting officers later added two counts of assaulting an officer.

The NPPA sent a letter to the SDPD in January objecting to Baier’s arrest, and later sent a letter to the Office of the City Attorney requesting that Baier’s charges be dropped.

“The reliance by your officer to question, detain, interfere with, arrest and seize the property of someone engaged in a lawful activity under color of law is reprehensible,” Osterreicher said in his January letter to the SDPD.  “At best, behavior that chills free speech and unreasonably seizes property is extremely unprofessional, at worst it is criminal.”

UPDATE – April 10, 2012 ************

Due to the emergency situation in Suffolk County caused by wild fires we have decided to reschedule the filing of the lawsuit and press conference against the County. Our thoughts and prayers go out to all the brave men and women who are working tirelessly fighting this fire.

Unless the emergency situation continues, the press conference is now scheduled for Wednesday, April 11, 2012. We will confirm and update as to time and location as soon as we have more information on the fire.

Thank you for your patience and understanding.

 April 9, 2012 — Tomorrow at 9:45 a.m. in Central Islip, the New York Civil Liberties Union, the law firm of Davis Wright Tremaine, LLP, and the National Press Photographers Association will hold a media availability to announce a legal action regarding Suffolk County’s policy and practice of obstructing the First Amendment right of the press and the public to record and gather the news about police activity in public places.

The legal action concerns a July 2011 incident in which professional video journalist Philip Datz was unlawfully arrested and detained by Suffolk County police while filming police activity on a public street in Bohemia, NY.

Mr. Datz, Attorney Robert Balin, a partner with Davis Wright Tremaine, and NYCLU Suffolk County Chapter Director Amol Sinha will be available for interviews tomorrow starting at 9:45 a.m. at the NYCLU Suffolk County Chapter’s office, which is located at Touro Law Public Advocacy center, 225 Eastview Drive in Central Islip. Mickey Osterreicher, NPPA General Counsel will be available by telephone 716.983.7800.

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.

The National Press Photographers Association (NPPA) has submitted comments to the Illinois General Assembly in support of House Bill 3944. Spoinsored by Rep. Elaine Nekritz, the proposed legislation (among other things) “amends the Illinois Criminal Code and exempts from an eavesdropping violation the recording of a peace officer who is performing a public duty in a public place and speaking at a volume audible to the unassisted human ear.” 

The current Illinois Wiretap Law makes it a felony (with a penalty of up to 15 years in jail) to audio record a police officer in public without consent regardless of whether a reasonable expectation of privacy exisited.

The NPPA is extremely concerned that the criminal penalties under the Illinois Eavesdropping Act, 720 ILCS 5/14 (“the Act”), as applied to the audio recording of police officers, has created a chilling effect upon free speech and a free press, particularly for photojournalists, who by the very nature of their profession must operate on the front lines of news, in the middle of sometimes highly charged situations.

NPPA joined in the amicus curiae brief in ACLU v. Alvarez, submitted by news organizations in support of the ACLU position seeking a declaratory judgment and a preliminary injunction against the application of the Act because it violates the First Amendment. Regardless of the Seventh Circuit decision in that case, which in any event may likely be appealed, NPPA is deeply concerned that daily coverage of news events, Occupy Chicago protests and the upcoming G-8 Summit may put those seeking to record these important matters of public concern at risk because of the continued enforcement of the Act. It especially disconcerting for us to think that foreign journalists covering the Summit meeting may be subject to arrest and prosecution for doing something they understandably believe to be a Constitutionally protected right throughout the United States.

In a time of technology and terrorism, citizens and photojournalists throughout the world have risked, and in some cases given their lives, to provide visual proof of governmental activities. Sadly, what is viewed as heroic abroad is often considered as suspect or criminal at home. It is therefore incumbent upon the 97^th General Assembly of the State of Illinois to immediately enact H.B. 3944.

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.

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!