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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 »

NPPA, Other Media Groups Submit Comments to FAA in Support of Exemptions for Use of sUAS

July 16th, 2014 by Mickey Osterreicher and tagged , , , , , , , , , , , , , , ,

Today the NPPA filed comments with the FAA in support of petitions from a number of aerial photo and video production companies seeking exemptions to commercially operate small unmanned aerial systems (sUAS – 55lbs or less) for motion picture and television industry use. The NPPA also joined in the analysis submitted as part of the News Media Coalition’s Comments in Support of Video-Production Companies’ Petitions to the FAA for Section 333 Exemption. That Media Coalition includes: Advance Publications, Inc.; A.H. Belo Corp.; The Associated Press; Gannett Co., Inc.; Getty Images (US), Inc.; Gray Television, Inc.; NBCUniversal, Inc.; The New York Times Company; Scripps Media, Inc.; Sinclair Broadcast Group, Inc.; and WP Company LLC (d/b/a The Washington Post), represented by Charles D. Tobin and Christie N. Waltz of the Washington, DC law firm Holland & Knight, LLP. The additional comments by NPPA were submitted to reflect the specific concerns of our members and were drafted by NPPA General Counsel Mickey H. Osterreicher and Advocacy Chair Alicia Wagner Calzada, who is also an  attorney with Haynes and Boone, LLP.

As noted, the NPPA has an acute interest in helping the FAA properly expedite the integration of sUAS into the National Airspace System (“NAS”).  We also support exemptions by the FAA that would permit journalists, and in particular visual journalists, to use sUAS for newsgathering purposes. The NPPA reviewed the voluntary and self-imposed “limitations and conditions” proposed in the production companies’ petitions. And while they may be acceptable to those groups, we urged the FAA to decline to adopt or extend them as prerequisites for future exemptions or as future standards in its rulemaking. The NPPA acknowledged that some of those limitations and conditions might be acceptable, but expressed our concerns about others that we deemed to be impractical and which would impose an undue burden on sUAS use for newsgathering.

The NPPA continues to assert that sUAS use for newsgathering is not a “commercial use” and we expect to see tangible benefits if the current exemption requests are granted. Specifically, we would hope that NPPA will also be allowed to “facilitate” exemption petitions on behalf our membership in a similar manner to what has been achieved by the Motion Picture Association of America.

The NPPA also referenced in its comments and filed a copy of our paper written in support of sUAS for use in newsgathering, which also included results from a study we conducted on that subject.

 

Posted in drone, Drones, FAA, First Amendment, First Amendment rights, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, rulemaking, small unmanned aerial systems, sUAS | No Comments »

NPPA Member Wins Major Victory Against Suffolk County Police Department

June 17th, 2014 by Wills Citty and tagged , , , , , , , , , , , , , , , , , , , , , ,

NPPA member Philip Datz today won a major settlement from the Suffolk County Police Department in a civil rights suit stemming from Datz’s arrest while filming law enforcement activity on a public street.   Under the terms of the settlement, Suffolk County agreed to pay Datz $200,000, implement a new training program (including a training video), and create a Police-Media Relations Committee.

The NPPA, attorneys from the law firm of Davis Wright Tremaine (DWT) and the NYCLU worked with Datz, a freelance videographer, to file a federal lawsuit after Suffolk County prosecutors dropped charges resulting from his 2011 arrest.  In July of 2011 Datz was filming police activity from a public sidewalk when Suffolk County Police Sergeant Michael Milton confronted him (VIDEO), demanding he leave the area immediately.  Datz was wearing his press credentials at the time and was standing near several other onlookers, who were not asked to leave.  Although no police lines had been established, Datz complied and then drove a block away. He was filming from there when Sergeant Milton came speeding up in his police cruiser, placed Datz under arrest for obstruction of governmental administration, and seized his camera and videotape.

Led by attorney Robert Balin, DWT filed suit on Datz’s behalf in 2012, claiming the unlawful arrest violated his First and Fourth Amendment rights as well as the Privacy Protection Act of 1980.  Rather than take the case to trial, SCPD agreed to the settlement payment, and a series of relief measures aimed at educating its officers on the rights of the public and press to observe and record police activity.  As part of these measures,  SCPD officers will now be annually required to watch a training video explaining these rights.  In addition, a newly created Police-Media Relations Committee consisting of representatives of SCPD and local media will be charged with promoting better relations between press and the police and will address complaints regarding police-media relations. Its membership will include a commanding officer in the SCPD, the executive officer of the SCPD’s Public Information Bureau, and members of local print and broadcast media outlets, as well as a freelance videographer or photographer. The SCPD also revised its rules to instruct officers that “members of the media cannot be restricted from entering and/or producing recorded media from areas that are open to the public, regardless of subject matter.”

“This settlement is a victory for the First Amendment and for the public good,” Datz said. “When police arrest journalists just for doing their job, it creates a chilling effect that jeopardizes everyone’s ability to stay informed about important news in their community. Journalists have a duty to cover what the police are doing, and the police should follow the law and respect the First Amendment to ensure they can do that.” Datz has also made a generous donation to the NPPA defense fund.

“We are delighted that Suffolk County has now joined other police departments, the U.S. Department of Justice and numerous courts across the country in recognizing that the public and press have a First Amendment right to photograph and record police officers performing their duties in a public place – a right that is essential to newsgathering and the free discussion of government affairs,” said Robert Balin. “This settlement is a huge victory not just for Phil Datz, but for all journalists and Suffolk County residents. The changes in policy and training agreed to by the County are major steps toward transforming the SCPD culture that led to this unfortunate incident. “The settlement is an encouraging sign in a climate where interference with and unlawful arrest of photographers has become commonplace.

“The National Press Photographers Association commends Suffolk County for working with Phil Datz and his counsel in order to turn a far too commonplace First Amendment violation into a constructive resolution of the case,” said Mickey H. Osterreicher, general counsel for the NPPA. “The real challenge now will be to ensure the ongoing training of SCPD officers in order for Suffolk County to be a positive role model for other law enforcement agencies. The NPPA is also extremely appreciative of the tenacious advocacy by Rob Balin, Alison Schary and Sam Bayard of the law firm of Davis Wright Tremaine who worked tirelessly on Phil’s behalf. And finally our thanks go to Phil Datz for not only having to endure the abridgment of his civil rights but for his willingness to stand up for his rights and the rights of others.”

The Suffolk County case is just the latest example of a lawsuit forcing local law enforcement to protect, rather than violate, the First Amendment. In March the Baltimore Police Department settled a case brought by the ACLU for a similar amount and also announced a new policy that prohibits officers from stopping people from taping or photographing police actions after officers destroyed a man’s personal, family videos because he taped a police incident, a case in which the U.S. Department of Justice filed a Statement of Interest affirming the right of both the public and the press to record police activities in public.

Also see: http://www.freedomtofilm.com/settlement.html  for additional info and links to documents including letter of discipline and Internal Affairs report.

 

Posted in Access, First Amendment, First Amendment rights, Legal, National Press Photographers Association, News Photography, NPPA, photographers, Photographers' Rights, photojournalism | 1 Comment »

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

June 16th, 2014 by Tyler Wilson 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 »

NPPA Helps Create Newly Released Credentialing Report

June 5th, 2014 by Tyler Wilson and tagged , , , , , , , , , , , ,

The Digital Media Law Project at Harvard University’s Berkman Center for Internet & Society and the Journalist’s Resource project at Harvard’s Shorenstein Center on Media, Politics and Public Policy, in collaboration with a Media Credentialing Working Group composed of the National Press Photographers Association, the Digital Media Law Project, Journalist’s Resource, Free Press, the Investigative News Network, and the Nieman Journalism Lab have released a new report: Who Gets a Press Pass? Media Credentialing Practices in the United States.

Media credentials have long played a critical role in newsgathering in the United States, allowing journalists to gain special access to places and events denied to the general public. There are, however, many inconsistencies among regulatory standards for the issuance of credentials, and many circumstances where the decision of whether and how to issue credentials is left up to individual agencies with no regulatory guidance at all. Moreover, upheaval in the journalism industry has introduced new actors in the journalism ecosystem, complicating decisions by government agencies and private gatekeepers about who should be entitled to special access.

Who Gets a Press Pass? presents a first-of-its-kind analysis of this complex environment, exploring media credentialing practices in the United States through a nationwide survey of more than 1,300 newsgatherers.

“Media credentials represent one of the most important interactions between journalists and those who control access to events and information,” said Jeff Hermes, director of the Digital Media Law Project and an author of the report. “This study finds common threads that run through decisions by various types of organizations, as a starting point to make sense out of the vast array of credentialing practices in the United States.”

Survey respondents included a wide range of journalists across the country, from employed journalists at long-standing media organizations to independent bloggers and activists fulfilling the information needs of their communities.

“The findings here speak to the vital issue of ensuring that journalists of all kinds can bear witness to important events in our society,” said Shorenstein Center Director Alex S. Jones. “The ability of the press to operate freely, robustly and without interference is essential to an informed public. We must be vigilant in making sure that all organizations issuing press credentials exert the maximum effort to accommodate media members and enable the free flow of information.”

The survey asked about respondents’ experiences in seeking press credentials from federal, state, local, and private organizations from 2008 through 2013, revealing the following nationwide trends:

  • One out of every five journalists surveyed who applied for a credential was denied at least once by a credentialing organization in the past five years. Although there may be reasonable grounds for denial in some cases, the data suggest systemic issues at many levels.
  • Freelancers are more than twice as likely as employed journalists to be denied a credential at least once.
  • Those identifying themselves as photographers are almost twice as likely as others to be denied a credential at least once.
  • Those identifying themselves as activists are more than twice as likely as others to be denied a credential at least once.

“It is indeed unfortunate that photographers have been one of the groups singled out for denial by agencies issuing press credentials, but it also must be pointed out that one does not need a press credential to photograph and record in a public place. That said, widespread mistrust by police officers of the media (or anyone with a camera) continues to be reflected in the misguided belief that photography and recording in public places may be prohibited,” said NPPA general counsel Mickey H. Osterreicher, who helped formulate the survey.

It is the hope of the Working Group that this study will help newsgatherers to identify particular tensions in media credentialing practices and to work with credentialing agencies to resolve these tensions.

The report is available through the Digital Media Law Project’s website at http://www.dmlp.org/credentials and through the Journalist’s Resource website at http://journalistsresource.org/studies/society/news-media/who-gets-press-pass-credentialing.

Posted in Access, Cameras, First Amendment, First Amendment rights, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Press Credentials, Public Photography, Regulations limiting photography | No Comments »

NPPA files Amicus Brief Supporting Right to Photograph and Record Police in Public

June 2nd, 2014 by Tyler Wilson and tagged , , , , , , , , , , ,

The NPPA filed an Amicus Brief today in a federal civil rights lawsuit involving an Austin, Texas man, who says that police violated his constitutional right to photograph and/or film police in a public setting.

In his complaint Antonio Francis Buehler alleged that he was arrested on a number of occasions while recording Austin Police officers performing their official duties in public places. As a result of these incidents Buehler formed the Peaceful Streets Project, a group which routinely videotapes police officers in the city.

Buehler filed suit against the Austin Police Department and several police officers for violations of his civil rights. The defendants in the lawsuit then moved to dismiss the suit, and claimed “qualified immunity,” which protects government officials from being the subjects of lawsuits unless they have violated a clearly established constitutional right.

“The NPPA chose to file an amicus brief so early in this case because of the extraordinary and incredulous claim by the Austin Police Department that ‘the Fifth Circuit does not recognize photographing/videotaping police officers as a constitutional right,’” said NPPA Advocacy Chair Alicia Calzada.

The brief counters the police department’s argument that the “First Amendment right to videotape law enforcement is not a cognizable claim,” as being incorrect as a matter of law and also because it frames the issue far too narrowly.  Rather, the constitutional right to film police officers while on duty has been well established for decades through numerous constitutional decisions that protect the “coextensive” rights of journalists and members of the public to gather information and to hold government officials accountable for their actions, as the First Circuit Court of Appeals held in the 2011 case of Glik v. Cunniffe. In Glik, a citizen was arrested after using his cell phone to photograph Boston police officers he believed were using excessive force in effectuating an arrest. After his charges were dismissed, Glik filed a civil action against the Boston Police Department and won because the First Circuit observed that a citizen’s right to film police officers on duty is a “basic, vital, and well-established liberty protected by the First Amendment.”

Several other cases have affirmed that the right to film police officers while on duty is clear and unambiguous, thus further weakening the Austin Police Department’s dubious claim. Most recently, the First Circuit reaffirmed this principle, denying qualified immunity in a case that involved videotaping police during a traffic stop in the case of Gericke v Begin. The court in Gericke explained that some constitutional principles are self-evident and do not need to have a case directly on point.

The United States Department of Justice (“DOJ”) has also affirmed this right in  multiple Statements of Interest, explaining that over eighty years of precedent, going back to the 1931 case of Near v. Minnesota, stand for the proposition that “government action intended to prevent the dissemination of information critical of government officials, including police officers, constitutes an invalid prior restraint on the exercise of First Amendment rights.”

The law is also clear that these constitutional protections apply as much to individuals as they do the institutional press, something the NPPA has consistently noted. “NPPA has always fought to uphold the right to photograph and record in public for everyone,” said NPPA Generasl Counsel Mickey H. Osterreicher. “While the press may not have any greater right of access than the public, they have no less right either and the last thing we want is for the government to be the arbiter of who is entitled to ‘Free Speech’ or ‘Free Press’ First Amendment protection,” he added.

The amicus brief was drafted pro bono by attorneys Robert Corn-Revere, Ronald London, and Alison B. Schary, with the law firm of Davis Wright Tremaine, who have generously supported this and other NPPA efforts to promote and uphold the right to take pictures in public. Corn-Revere, London and Schary were recipients of the 2013 NPPA Kenneth P. McLaughlin Award of Merit for their efforts in support of the First Amendment.

 

 

 

 

Posted in Austin Police, Boston Police, cell phone cameras, Department of Justice, DOJ, First Amendment, First Amendment rights, Glik v Cunniffe, law, Lawsuit, Legal, Newsgathering, photographers, Photographers' Rights, photojournalism, Police, Recording, Recording Police, Simon Glik, Texas | 7 Comments »

NPPA Joins 32 Other Organizations in Calling on FAA to Expedite Rulemaking for Unmanned Aircraft Systems

April 8th, 2014 by Mickey Osterreicher and tagged , , , , , , , , , , , ,

Today, the National Press Photographers Association (NPPA) joins the Association for Unmanned Vehicle Systems International (AUVSI), Academy of Model Aeronautics (AMA) and 30 other organizations in sending a letter to the Federal Aviation Administration (FAA) encouraging the agency to expedite the rulemaking process for unmanned aircraft systems (UAS) operations in the U.S. airspace. The letter also calls on the FAA to allow the limited use of small UAS for commercial purposes before the final rulemaking is completed.

While Congress authorized the integration of UAS in 2012 and the FAA has recently implemented key steps in the integration process, the rulemaking for small UAS has been delayed for almost four years. Last month’s FAA v. Pirker decision underscores the immediate need for a safety structure and regulatory framework for small UAS, according to the co-signees.

“The time for resolution has come, and we cannot afford any further delays. The technology is advancing faster than the regulations to govern it,” the letter states. “While the FAA has indicated its intention to appeal the Pirker decision to the full National Transportation Safety Board, we strongly encourage the FAA to simultaneously expedite its small UAS rulemaking and issue notice and public comment as soon as possible.”

In addition to NPPA, the co-signees include a broad array of organizations and industries, from agriculture to real estate to photography, that recognize the benefits of UAS in particular for newsgathering purposes.

In addition to expediting the UAS rulemaking, the organizations urged the FAA to use its congressional authority to allow some limited UAS operations right away.

“We recommend the FAA use all available means, including Section 333 of the FAA Modernization and Reform Act of 2012, to allow for some limited UAS operations, subject to the Secretary of Transportation’s safety determination, before the small UAS rule is finalized,” the letter states.

“The current regulatory void has left American entrepreneurs and others either sitting on the sidelines or operating in the absence of appropriate safety guidelines. The recreational community has proven that community-based safety programming is effective in managing this level of activity, and we highly encourage the FAA to allow similar programming to be used to allow the small UAS industry to establish appropriate standards for safe operation. Doing so will allow a portion of the promising commercial sector to begin operating safely and responsibly in the national airspace.”

According to AUVSI’s economic impact study, the integration of UAS will create more than 100,000 new jobs and $82 billion in economic impact in the first decade following integration. NPPA’s Executive Director Charles (Chip) Deale commended the groups’ effort to advocate for a regulatory framework.

“It is unfortunate that the FAA has taken so long to address this issue in a commonsense and expedited manner and we urge Administrator Huerta to include our organization and other stakeholders in its rulemaking process,” Deale said.

The letter co-signees include: Aerospace States Association, Air Traffic Controllers Association, Airborne Law Enforcement Association, Aircraft Owners and Pilots Association’ Airports Council International – North America, American Association of Airport Executives, American Institute of Aeronautics and Astronautics, American Society of Agronomy, American Soybean Association, Crop Science Society of America, Experimental Aircraft Association, General Aviation Manufactures Association, Helicopter Association International, International Society of Precision Agriculture, International Stability Operations Association, National Air Traffic Controllers Association, National Air Transportation Association, National Association of Realtors, National Association of State Aviation Officials, National Association of Wheat Growers, National Barley Growers Association, National Business Aviation Association, National Sheriffs’ Association, National Ski Areas Association, National Sunflower Association, North American Equipment Dealers Association, Radio Television Digital News Association, Realtors Land Institute, Soil Science Society of America and U.S. Canola Association

The full letter may be found at www.auvsi.org/AUVSI-AMA-Sign-On-Letter-To-FAA

Posted in Access, drone, First Amendment, First Amendment rights, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, UAS, Visual Journalists | 6 Comments »

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