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Led by NPPA, over 60 Media Companies & Organizations Join in Support of Journalists’ Rights

March 20th, 2017 by nppaeditor and tagged , , , , , , , , , , , , , , , , ,

On March 17, 2017, the National Press Photographers Association (NPPA) filed an amicus brief in the United States Court of Appeals for the Second Circuit supporting a visual journalist’s appeal of a lower court decision in favor of the defendant police officers who arrested him.

That “friend of the court” brief was joined by a broad coalition of over 60 media companies and organizations engaged in press photography, videography, broadcast news, journalism (both online and in print) and free-speech advocacy.

Photojournalist Douglas Higginbotham was covering an Occupy Wall Street protest at Zuccotti Park in New York City on the morning of November 15, 2011. In order to get a better vantage point from which to record the large crowd of police and protestors he climbed to the top of a phone booth. Mr. Higginbotham claims that while he was in the process of complying with police officers, who had asked him to come down, he was forcibly pulled off, arrested and charged with disorderly conduct. NPPA general counsel, Mickey H. Osterreicher was successful in having that charge quickly dismissed by the Manhattan district attorney.

Douglas Higginbotham on the day of his arrest covering an Occupy Wall Street protest at Zuccotti Park in New York City on the morning of November 15, 2011. Photo credit: PaulMartinkaPhotography.com

Higginbotham subsequently brought a federal civil rights lawsuit in the United States District Court for the Southern District of New York against the arresting officers and the City of New York. Among other things, his complaint alleged that “the defendants retaliated against him for filming a violent arrest in violation of his First Amendment rights.” In refusing to grant the defendants’ motion to dismiss the case, District Court Judge P. Kevin Castel held (with regard to the question of whether the police officers were protected by the doctrine of qualified immunity), that  “the right to record police activity in public, at least in the case of a journalist who is otherwise unconnected to the events recorded, was ‘clearly established’ at the time of the events alleged in the complaint.”

The matter is now being appealed, following Judge Castel’s grant of a motion for summary judgment by the defendants. “Though we believe the District Court erred in granting summary judgment, we also believe that Judge Castel was correct in recognizing that the press has a First Amendment right to cover police activity, said Jay K. Goldberg, attorney for Mr. Higginbotham. “We urge the Second Circuit to adopt Judge Castel’s reasoning and align this Circuit with all others that have upheld this fundamental right of constitutional protection,” he added.

Attorneys Robert Balin, Abigail Everdell and Jack Browning, of Davis Wright Tremaine LLP drafted the amicus brief with help from NPPA’s Osterreicher. “The fact that more than 60 leading news outlets and free speech organizations have joined the NPPA in this friend of court brief speaks volumes about the importance of the First Amendment rights at stake in this case,” said Balin. “From Ferguson to Occupy Wall Street to tomorrow’s headlines, safeguarding the ability of the press and public to record and  freely discuss police activity in public places is essential to an enlightened, informed democracy. Given the national consensus by other courts, we believe a ruling by the federal appeal court in New York recognizing a First Amendment right to record the police in public is long overdue. We look forward to presenting our arguments.”

Those courts include the First, Fifth, Seventh, Ninth and Eleventh Circuits, which have expressly acknowledged the existence of this crucial right. The Second Circuit has yet to find that right as being “clearly established,” which has had a chilling effect on journalists and citizens, while officers who arrest or harass those recording police conduct continue to avoid liability by receiving “qualified immunity” for their actions.

The brief urges the Second Circuit to “recognize—as did the district court—that members of the press unconnected with the underlying events have a clearly established First Amendment right to record officers in public places in furtherance of their free press rights to gather and disseminate news on matters of public concern.” In the alternative, the amici argue, should the Court find “that the right to record the public conduct of police officers was not clearly established . . . at the time of Mr. Higginbotham’s arrest,” it “should nonetheless use this opportunity to declare the right to be clearly established going forward.”

In reflecting on his case, Higginbotham said, “I just want to thank the NPPA for assembling so many media industry leaders, along with an impressive coalition of free speech organizations  in support of my appeal. Now is a very important time for the courts to uphold our constitutional rights,  and send a clear message that a free press must be allowed to go about our invaluable duties, which are enshrined in the First Amendment , without fear of police retaliation, or having our livelihoods destroyed.”

“The attorneys for Davis Wright Tremaine are to be commended for their work on this brief,” said Osterreicher, who has been involved in this case for the last six years. “I believe that Jay [Goldberg] has crafted an excellent appeal, while Rob, Abigail and Jack at DWT have drafted an amicus brief that should help guide the court on this issue. Of course the overwhelming support from so many groups has been very gratifying and we hope the court will take judicial notice of that fact. I would also be remiss if I did not thank Lynn Oberlander and the Press Freedom Litigation Fund of First Look Media Works for their support of Doug’s appeal. Thanks also go to Gregg Leslie at the Reporters Committee for Freedom of the Press for helping to rally support for the brief. Last but by now means least, I must thank Doug Higginbotham, who had to endure his unlawful arrest for just doing his job and for standing up for his, and in turn all of our rights, by pursuing this case.”

The groups joining with the NPPA in the brief are: ABC, Advance Publications, Inc., ALM Media, LLC, the American Society of Journalists and Authors, American Society of News Editors, Associated Press, Association of Alternative Newsmedia, Association of American Publishers, Inc., Association of Magazine Media, The Author’s Guild, Inc., The Buffalo News, Buzzfeed, Inc., Cable News Network, CBS Broadcasting, The Daily Beast Company, LLC, Daily News, LP, Discovery Communications, LLC, Dow Jones & Company, Inc., Electronic Frontier Foundation, The E.W. Scripps Company, First Amendment Coalition, First Amendment Lawyers Association, First Look Media Works, Inc., Fox News Network LLC, Free Press, Freedom of the Press Foundation, The Freedom to Read Foundation, Gannett Co., Inc., Hearst Corporation, Inter American Press Association, Media Coalition Foundation, Media Law Resource Center, Inc., The Media Consortium, Inc., Meredith Corporation dba WFSB-TV, National Association of Broadcasters, National Newspaper Association, National Press Club, National Public Radio, Inc., NBCUniversal Media, LLC, New England First Amendment Coalition, New England Newspaper & Press Association, Inc., New York News Publishers Association, New York Press Club, New York Press, Photographers Association, New York State Broadcasters Association, Inc., The New York Times Company, The News Media Alliance, NYP Holdings, Inc., Online News Association, PEN American Center, Penske Media Corporation, Radio Television Digital News Association, The Reporters Committee for Freedom of the Press, Reporters Without Borders, Reuters America LLC, Sinclair Broadcast Group, Inc., Society of Professional Journalists, Student Press Law Center, Tully Center for Free Speech, Vermont Press Association, Vox Media and WNYW-TV FOX 5.

 

 

 

 

 

Posted in Disorderly Conduct, First Amendment, First Amendment rights, National Press Photographers Association, News Photography, Newsgathering, NPPA, Occupy Wall Street, photographers, Photographers' Rights, photojournalism, Photoshop, Police, Recording Police, Regulations limiting photography, retaliation for the exercise of First Amendment rights, Robert Balin, Visual Journalists | No Comments »

Judge Orders Sanctions Against Atlanta Police Department for Obstructing Filming Police Conduct

May 14th, 2015 by Mickey Osterreicher and tagged , , , , , ,

ATLANTA– On May 13, 2015, United States District Judge Steve C. Jones found the City of Atlanta in contempt of court and imposed sanctions for the city’s failure to comply with obligations set forward in a prior Court Order on behalf of a woman whose constitutional rights were violated when she was arrested as she peaceably photographed police activity in 2009.

The Southern Center for Human Rights, along with Atlanta based attorneys Daniel J. Grossman and Albert Wan, presented arguments on April 28, 2015, for civil contempt sanctions against the City of Atlanta in Anderson v. City of Atlanta, et al. The plaintiff, Felicia Anderson, brought this case against the City of Atlanta and one of its police officers for falsely arresting her as she photographed police arresting her neighbor. The parties ultimately reached a settlement on Ms. Anderson’s claims in 2012. In addition to damages, the parties agreed to a Consent Order requiring the City of Atlanta to permanently revise and implement a number of APD policies and trainings that would set strict limits on officer’s interference with citizens documenting police activity.

In November 2014, several reporters covering the Ferguson demonstrations in downtown Atlanta had their cameras taken away from them by APD officers as these individuals attempted to film police activity. One of them was a photojournalist for 11Alive News, whose arrest by police officers during his coverage of the protests has been the subject of numerous news stories. Another was a reporter for Creative Loafing; Atlanta police officers intentionally stopped him from taking photos during the protest, grabbed his camera, and then arrested him, even as he and his editor repeatedly told the officers that he was a reporter. These are but a few examples of the actual damage that came to light as a result of the City’s failure to abide by this Court’s order, including interference with citizens and reporters filming police.

Judge Jones stated, “The Court finds Defendant in contempt for violating the March 2012 Order… and it now imposes sanctions to bring Defendant into full compliance and to address future monitoring of Defendant’s compliance with the Order.”

“The Court has now found the City in contempt based, in part, on the City’s own admissions that it failed to comply with the Court’s Order,” said attorney Albert Wan. “ The next few weeks and months will be telling. Will the City treat the Court’s order with the seriousness it deserves, or will it revert back to its old ways? All eyes are on the City to see what it will do, and they should be. As recent events have shown, the public’s right to document police conduct is an important one, and the City needs to recognize that. It can start by fully complying with the Court’s Order.”

Judge Jones ordered the following:
• Permanently implement the revisions to the Atlanta Police Department Standard Operating Procedures set forth in the Court’s March 2012 Order
• Conduct mandatory, in-person training of all Atlanta police officers every two years regarding the Standard Operating Procedure revisions set forth the Court’s March 2012 Order
• Within forty-five days, the Chief of the Atlanta Police Department shall issue a Command Memorandum to each APD officer attaching a copy of the 2012 Consent Order, requiring that it be read and signed. The City of Atlanta shall provide the Court and the Plaintiff with a sworn statement attesting that this has been accomplished within ten days after the 45-day period of compliance has expired. The City of Atlanta shall be fined $10,000 per day after the 45-day period of compliance has expired if the City of Atlanta fails to comply.
• Within forty-five days, the City of Atlanta shall provide in-person, roll call training consistent with the industry standard to every police officer of the Atlanta Police Department on every revision to the Atlanta Police Department Standard Operating Procedures required under the March 2012 Order. The Atlanta Police Department is required to video solely this portion of the Atlanta Police Department’s in-person, roll call training. The City of Atlanta must provide Plaintiff’s counsel with a copy of each video within ten days of the in-person, roll call training. The City of Atlanta shall be fined $10,000 per day after the period of compliance has expired if the City of Atlanta fails to comply.
• The City of Atlanta, within five days, must report to the Court and Plaintiff any revisions made to the Standard Operating Procedures (SOP) at issue in the 2012 Consent Order.
• The City of Atlanta will reimburse Plaintiff’s counsel for a portion of fees and costs associated with ensuring compliance with the Court’s Order.

“Almost every week we see the crucial importance of citizen video as a tool for police accountability. It is a shame that City Hall fought against this for almost six months, and that it took a federal judge to hold the city in contempt and order it to provide the training that even Atlanta’s police officers themselves were asking for,” said attorney Daniel J. Grossman.

“It should not have taken over three years for the Atlanta Police Department to respect citizens’ rights to video police conduct as required by Judge Jones order. The Court has shown, and the national conscience has shown, that cameras are an important tool in ensuring police are held accountable,” said Southern Center for Human Rights attorney, Gerald Weber.

To read the Contempt Order go to: Atlanta Contempt Order – Anderson 05-13-15

Posted in Access, Atlanta Police Department, First Amendment, First Amendment rights, News Photography, Newsgathering, photographers, Photographers' Rights, photojournalism, Police, Recording Police | No Comments »

Some Practical Advice about Covering High Conflict News Stories

April 28th, 2015 by Mickey Osterreicher and tagged , , , , , , , , , , , , ,

See the attached document containing some practical advice about covering high conflict news stories.

Issues covered:

  • Legal
  • Local Ordinances
  • Federal Trespass
  • Resources
  • Important items to have with you
  • Potential for arrest
  • Complying with police orders
  • Being questioned and detained
  • Protecting your files
  • Arrest & release
  • Practical advice
  • Preparation
  • Your equipment

These have been put together as a result of covering the NATO Summit in Chicago in 2012 the political conventions in Tampa and Charlotte later that year and the demonstrations in Ferguson in 2014.

For more information please contact:

Mickey H. Osterreicher

Cell 716.983.7800

Email [email protected]

Twitter @nppalawyer

 

 

Posted in Access, Baltimore Police, Baltimore Riots, cell phone cameras, Ferguson, First Amendment, First Amendment rights, Fourth Amendment, Fourth Amendment rights, Legal, Maryland ACLU, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Public Photography, Recording Police, Reporters Committee for Freedom of the Press, retaliation for the exercise of First Amendment rights | No Comments »

Important Info for Those Covering Ferguson

November 23rd, 2014 by Mickey Osterreicher and tagged , , , , , , , , , , , , , ,

For all NPPA members and visual journalists in Ferguson, Missouri – Please print out the federal court orders below and keep them with you at all times.

Also please contact NPPA general counsel Mickey Osterreicher if you are interfered with or arrested. You may call or text his cell: 716.983.7800 or email [email protected].

You may also call 800.336.4243, which is the Reporters Committee for Freedom of the Press Legal Defense Hotline.

County Order

Highway Patrol Order

Ferguson Order

Posted in Access, Ferguson, First Amendment, First Amendment rights, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Recording Police, Reporters Committee for Freedom of the Press, Visual Journalists | No Comments »

Media should be able to fly, despite temporary flight restriction in Ferguson

August 19th, 2014 by Alicia Calzada

Although the FAA has issued a temporary flight restriction over Ferguson, Missouri, those restrictions should not include news helicopters.

The flight restrictions have been widely reported, and several news organizations have reported that the restrictions apply to news media. However, the regulation giving the FAA authority to issue the temporary flight restriction contains an exemption for news media.

NPPA member William Luther, a photojournalist at the San Antonio Express-News who holds a private pilot’s license, brought the exception to NPPA’s attention earlier today.

The FAA issued the temporary flight restrictions under the authority of 14 CFR § 91.137(a)(2) (Temporary flight restrictions in the vicinity of disaster/hazard areas.). That section relates to the issuance of a TFR necessary to “provide a safe environment for the operation of disaster relief aircraft.” When a temporary flight restriction notice is issued under that subsection, aircraft are banned from the designated area, unless certain exceptions apply. One of the exceptions permitting flight within the restricted airspace is that the aircraft is carrying accredited news representatives.

Specifically, the regulation permits aircraft “carrying properly accredited news representatives,” if, “prior to entering the area, a flight plan is filed … and the operation is conducted above the altitude used by the disaster relief aircraft, unless otherwise authorized by the official in charge of on scene emergency response activities.”

As a result of the persistent legal problems many journalists have faced covering protests in Ferguson, NPPA’s General Counsel Mickey Osterreicher arrived in Missouri today and is providing legal support to visual journalists in the city.

Posted in FAA, Ferguson, First Amendment, First Amendment rights, Legal, Photographers' Rights, Recording Police, Visual Journalists | No Comments »

Texas Court Upholds the Right to Photograph and Record Police Activity

July 26th, 2014 by Alicia Calzada and tagged , , , , , , , , , , ,

In an important ruling in Texas, a federal judge held that the right to record police activity is a clearly established right protected by the First Amendment.

In a civil rights lawsuit, Antonio Buehler alleged that his constitutional rights were violated when he was arrested by the Austin Police Department multiple times for taking pictures of police activities. Buehler was first arrested when he came upon a police scene at a gas station, where he began recording the arrest because he felt that excessive force was being used. After that arrest, he formed a group called the “Peaceful Streets Project” and began regularly documenting police activity. He was arrested again and again for documenting police activity, according to the lawsuit.

In an effort to get the lawsuit dismissed, the Austin Police Department claimed “qualified immunity” which protects state officials from suit. However, qualified immunity is not available if officials violate a clearly established constitutional right. In their argument, APD claimed that the right to photograph or videotape police officers “is not recognized as a constitutional right”.

In an order released Thursday, the federal judge in the case held that not only is there a constitutional right to document police officers, but that the right is clearly established. Magistrate Judge Mark Lane held that “the First Amendment protects the right to videotape police officers in the performance of their official duties, subject to reasonable time, place and manner restrictions.”

Continuing, the judge wrote:

If a person has the right to assemble in a public place, receive information on a matter of public concern, and make a record of that information for the purpose of disseminating that information, the ability to make photographic or video recording of that information is simply not a new or a revolutionary expansion of a historical right. Instead the photographic or video recording of public information is only a more modern and efficient method of exercising a clearly established right.

Buehler’s attorney, Daphne Silverman told NPPA, “Antonio and I are pleased with Judge Lane’s ruling upholding the First Amendment right to document police conduct. This is a win for the citizens and should be of no concern to honest police officers.”

The NPPA filed an amicus brief in the case last month in support of Buehler’s position, whose case will now go forward.

See also, http://www.mystatesman.com/news/news/crime-law/federal-judge-upholds-activist-antonio-buehlers-ri/ngnbp/

Posted in Austin Police, blogging, False Arrest, Federal Court, First Amendment, First Amendment rights, Lawsuit, Legal, National Press Photographers Association, NPPA, Photographers' Rights, photojournalism, Police, Recording Police | No Comments »

First Circuit broadens citizens’ right to record police officers in public

June 16th, 2014 by and tagged , , , , ,

The constitutionally protected right to record police officers on duty in public places such as parks, which was affirmed in Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), has been affirmed by the First Circuit to not only include parks and other traditional public places, but now even routine traffic stops.

In Glik, the plaintiff filmed several Boston police officers arresting a young man on the Boston Commons. The court in Glik held that the First Amendment protects the right of individuals to videotape police officers performing their duties in public, recognizing that it firmly establishes and protects “a range of conduct” surrounding the gathering and dissemination of information. Id. at 82.

The recently decided case of Gericke v Weare broadens this right to include routine traffic stops, concluding that a traffic stop does not extinguish an individual’s right to film. The main question that was presented in Gericke was whether a a routine traffic stop was a police duty carried out in public. The court said yes and compared Glik with Gericke, stating that “those First Amendment principles apply equally to the filming of a traffic stop and the filming of an arrest in a public park. In both instances, the subject of filming is police carrying out their duties in public.” Id.

But the court recognized that there may be some limitations on this right because the circumstances of a traffic stop can potentially become dangerous to an officer, if for example in this case, firearms are present in the stopped vehicle.  Such limitations may come into play when a police officer’s ability to perform his duties are actually impaired.

Reasonable restrictions, such as those of time, place, and manner, on the exercise of the right to film may be imposed when the circumstances justify them. See Glik, 655 F.3d at 84. A police officer can order filming to cease only when he/she can reasonably articulate that the filming itself is interfering, or is about to interfere, with his/her duties. Glik established that a reasonable officer cannot, consistently with the Constitution, prosecute citizens for violating wiretapping laws when they peacefully record a police officer performing his or her official duties in a public area.” Id. (emphasis added).

In Gericke, since there was a genuine factual dispute about whether the plaintiff had been disruptive, the court denied the officers’ motions for summary
judgment on the retaliatory prosecution claim stemming from the wiretapping charge. The First Amendment right to film police activity carried out in public,
including a traffic stop, necessarily remains unrestricted unless it is deemed to be disruptive.

**** Update: Shortly after the decision, the Town of Weare settled the lawsuit for $57,500

Posted in Boston Police, cell phone cameras, First Amendment, First Amendment rights, Glik v Cunniffe, Police, Recording, Recording Police, Simon Glik, Uncategorized, video cameras, violating | No Comments »

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