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Covering the Conventions and Protests

August 7th, 2012 by Mickey Osterreicher and tagged , , , , , , , , , , ,

                                                            © 2012 Photo by Mickey Osterreicher

*** UPDATE 09-05-12 ***

Things to know while covering the DNC in Charlotte today

DNC on Wednesday: president arrives; new protests, closures

Charlotte Road Closures for Wednesday 9/5/12

*** UPDATE 09-04-12 ***

Here’s where you can park in Charlotte today

Charlotte Road Road Closures for Tuesday 9/4/12

*** UPDATE 09-03-12 ***

Charlotte Road Road Closures for Monday 9/3/12

First Lady to arrive in Charlotte on Monday

Details for CarolinaFest on Monday

*** UPDATE 09-02-12 ***

Two arrested during first DNC march of about 700 protestors in Charlotte

Security intensifying in Charlotte as DNC gets closer

 *** UPDATE 09-01-12 ***

Occupy Charlotte re-opens camp blocks from DNC at Marshall Park. Expect buses carrying protesters from Tampa and other cities to begin arriving this weekend.

 *** UPDATE 08-26-12 ***

Tampa Joint Information Center (JIC) Announcement #1

RNC cancels events in expectation of Isaac with tropical storm warning in effect. Driving rain & winds 39-73 mph tonight. Also expected – flooding and increased risk of tornadoes

 *** UPDATE 08-25-12 ***

Republican Convention in Tampa will convene on Monday and immediately recess due to Tropical Storm Isaac says Chair Reince Priebus on Saturday night,

Occupy Tampa events calendar for RNC in Tampa

Secret Service designated road closures for the RNC in Tampa begin today at noon and remain in effect thru 6 pm on 8/31/12

Tampa Police, ACLU team up for tips for RNC protesters and media

*** UPDATE 08-24-12 ***

Please use #Journarrest on Twitter to obtain the latest information about or to report an arrest of a journalist

Updated RNC Security Map

Click here for RNC Protest Information Updates

5,000 person protest march planned for Monday, 8/27/12 in Tampa

*** UPDATE 08-23-12 ***

Announcing a Guide to Reporting at the 2012 Republican and Democratic National Conventions. The Digital Media Law Project (which supports indy and online journalists) just released an amazing guidebook for reporting on the conventions. Everything from local laws to closed streets and prohibited items and resources for dealing with police and secret service… it’s a huge resource and should be really valuable

Media Logistics Briefing at the RNC for Credentialed Journalists – Media credentials, transportation, perimeter, operations and security to be discussed

Free Press – The Right to Record

Some Conventional Wisdom: Looking at the ’72 DNC in Miami Beach 40 Years After

*** UPDATE 08-22-12 ***

Severe WX: With the projected path of Tropical Storm Isaac expected to come close to Tampa make sure you bring foul weather gear 

RNC – Security Perimeter – Prohibited items. As stated on this site “As a condition of entry, the following items are inadmissible for safety and security reasons and will not be permitted within the security perimeter established for the 2012 Republican National Convention.” The “security perimeter” is the area controlled by the RNC and Secret Service. Proper credentials (delegates, media, etc.) will be required to enter that area.

It also appears that those entering the security perimeter with “Media” credentials will be exempt from the prohibition against:

Camcorders and cases, large cameras with lens (over four inches); Voice enhancement devices, such as bullhorn; Tripods for cameras; Backpacks or carry cases for binoculars, cameras.”

*** UPDATE 08-20-12 ***

RNC: Tampa Security Zone & Street Closures Map. Also RNC Security Plan Info 

DNC: Security Zone Maps:Vehicle restrictions around TWC ArenaPedestrian restrictions around TWC ArenaVehicle restrictions around BofA StadiumPedestrian restrictions around BofA StadiumRestrictions around government center complexRestrictions around Charlotte Convention Center

*** UPDATE 08-16-12 ***

The Reporters Committee for Freedom of the Press has Published its Hotline Numbers for both Conventions. Write these numbers down and keep them readily accessible. Do not just put them in your cellphone as that might be seized if your are arrested!!!!

Visual Journalists may also contact me by phone or text at 716-983-7800. I will be present at both conventions.

Republican National Convention, Tampa, FL

  • Hotline: 813-984-3076 or 813-984-3078
  • Legal Counsel: Thomas & LoCicero PL
  • Operation: The local hotline will remain open around the clock from Friday, Aug. 24 through the end of the convention

Democratic National Convention, Charlotte, NC

  • Hotline: 704-343-2063; backup numbers 704-904-5834 or 919-428-5883
  • Legal Counsel: McGuireWoods LLP
  • Operation: The local hotline will be in service 24 hours a day from Friday, Aug. 31 through the end of the convention

Overview

In preparation for the expected protests during the upcoming political conventions being held in Tampa, FL (Republican – August 27-30) and Charlotte, NC (Democratic – September 3-6) I have conducted training with the police agencies in both cities regarding 1st and 4th Amendment rights of citizens and journalists. It is our hope to avoid a repeat of the interference with and the arrest of journalists that occurred four years ago in Denver and St. Paul.

NPPA was also instrumental in working with the Chicago Police Department prior to and during the NATO Summit held in May. I provided training to about 200 supervisory officers in April that was well received and was out on the streets along with police, protesters and the media for three days of marches and rallies throughout the city.

If the NATO protests were any indication, then journalists covering events outside the conventions can expect that everyone–mainstream media, bloggers, citizen journalists, protesters, and bystanders–will have a camera of one kind or another. With the widespread proliferation of cellphone cameras, capable of recording high-quality images along with audio and video, it seemed like everybody was documenting everything and everyone.

Legal Issues

For journalists recording audio of any type there was a heightened concern in Illinois that police would be enforcing the state’s Eavesdropping Act, which criminalizes (with a possible sentence of 15 years in jail) audio recording of police officers performing official duties in a public place without their consent but fortunately in the case of ACLU v. Alvarez, the U.S. Court of Appeals for the Seventh Circuit found the law to be unconstitutional only days before the start of the summit and granted a preliminary injunction against its enforcement. The Illinois State’s Attorney has indicated that she intends to appeal that decision to the U.S. Supreme Court this fall.

In a similar case – Glik v. Cunniffe, the U.S. Court of Appeals for the First Circuit held that individuals possess “a constitutionally protected right to videotape police carrying out their duties.” For those covering the Tampa convention, the Eleventh Circuit (which is controlling in Florida) also recognized a “First Amendment right . . . to photograph or videotape police conduct” in the 2000 case of Smith v. Cumming. And for those covering events in Charlotte, the law in the Fourth Circuit (which is controlling in North Carolina) is less settled, according to a 2009 one-page, unpublished per curium conclusory opinion in Szymecki v. Houck, that the “right to record police activities on public property was not clearly established in this circuit at the time of the alleged conduct.”

NPPA asserts that the right to observe and record police officers performing their duties in a public place is a recognized form of free speech through which the press and the public may gather and disseminate information on matters of public concern. First Amendment protections regarding such activity, while not absolute, may only be limited by reasonable time, place, and manner restrictions, the courts ruled in Glik and Smith.

But the “reasonableness” of a reasonable time, place, and manner restriction is often in the eyes of the beholder. Police issuing an order to disperse may expect everyone including those with cameras to leave the area while journalists may believe that moving back or out of the way constitutes compliance.

Local Ordinances

Both Tampa and Charlotte have established security zones (see Tampa Secret Service info) around their respective convention centers. Those ordinances also ban a long list of items deemed to be potential weapons, so journalists who might come prepared with gas masks may find they are violating the new restrictions by carrying one. Also prohibited from places designated as “public viewing areas” are: “sticks, poles, ladders, monopods, bipods, and tripods.” These cities have also established “free speech zones,” where permitted marches may take place and speakers may address the public. It is also important to note that many of the streets in Charlotte that appear to be public are actually privately owned by many of the banks in that city, which may further complicate the right to record.

Federal Trespass

Another concern will be the enforcement of H.R. 347 also known as “The Federal Restricted Buildings and Grounds Improvement Act of 2011,” which was signed into law in March, making it a federal offense to cause a disturbance at certain events. More specifically, anyone who trespasses on specified property or at times and locations “so restricted in conjunction with an event designated as a special event of national significance” may be prosecuted and subject to a fine or imprisonment or both. Both conventions have been designated a “National Special Security Event” by the Department of Homeland Security.

Under this “trespass bill” anyone “knowingly” entering a restricted area under Secret Service control who “engages in disorderly or disruptive conduct” or “who, with the intent to impede or disrupt the orderly conduct of government business or official functions, obstructs or impedes ingress or egress to or from any restricted building or grounds; or knowingly engages in any act of physical violence against any person or property in any restricted building or grounds; or attempts or conspires to do so, shall be punished” accordingly. The bill also creates a floating bubble of protection around the president and other dignitaries, so although those covering the protests may be outside of the designated zones, they may still fall under the ambit of the law.

Other Resources

NPPA has also been working with a number of other organizations including the Reporters Committee for Freedom of the Press (RCFP), the American Civil Liberties Union (ACLU), the National Lawyers Guild (NLG), the Society of Professional Journalists (SPJ) and the Committee to Protect Journalists (CPJ). The RCFP has recently made available a mobile app for reporters that, according to its website, “gives reporters in the field immediate access to legal resources, particularly in situations where newsgathering or access may be stymied.” They also have a handbook entitled “Police, Protesters and the Press” available for free download. Additionally the Reporters Committee has partnered with prominent law firms in Tampa and Charlotte to assist “journalists who may be impeded or arrested” in those cities while covering the news. As I did in Chicago I have been working with the lawyers at Thomas & LoCicero in Tampa and McGuireWoods LLP in Charlotte. These firms will be providing free 24-hour legal assistance through a hotline available for journalists covering events in those cities. The RCFP main hotline number is 800-336-4243. Write important numbers down on your arm or another easily viewed part of your body so you have them if you need them.

It might also be informative to look at a recent study of human rights violations by police against those covering OWS as well as a story about a settlement in a federal lawsuit by a journalist who was arrested during the 2009 G-20 Summit in Pittsburgh.

Important Items

Important items to always have with you: government-issued photo I.D. (i.e. valid driver’s license), press credential(s) or press identification card(s) (if you have any), credit card(s) and some cash (in case you need to post bond). For its members NPPA also has available for purchase a “Member ID” which some have found a useful form of identification.

Potential for Arrest

When covering demonstrations, protests, marches and rallies you should be aware that there is a risk of arrest. Just because you may be a journalist, have a camera or believe that you have a lawful reason for being present to observe, document and report on these events does not provide immunity from being arrested along with those participating in these events. For example do not expect that you will be able to cross or walk through police lines. If you need to do so it is always advisable to seek permission before acting.

Complying with Police Orders

If a police officer orders you to move it is advisable to comply with the request. How far you move is something that you will have to decide for yourself. If you believe that the order is not a reasonable one, ask to speak to a supervisor or the public information officer if that is possible. It is important to be very aware that most police officer do not like to be questioned or challenged once they have told you to do (or not do) something and a mere hesitation, question or request may result in your detention or arrest. Only you can make that judgment call as to what to do. Every situation is different as is every police officer’s reaction to your behavior. For the most part officers have been trained to respond in an appropriate manner, but given that we all have different personalities and the fact that they may be standing out in the summer heat for many hours, sometimes in helmets and riot gear you should not necessarily count on them to be as reasonable as you might like.

Being Questioned or Detained

If you are questioned or detained remember to remain calm and act professionally. Do not get into an argument about your rights. If you are able to have a reasonable discussion that is one thing but if it becomes apparent that the officer is not interested in your point of view it is usually best to move on. Discretion is the better part of valor. If you are told that you are not free to leave or under arrest it is strongly advised that you immediately do what you are told. Officers deem anything less than full compliance as resisting arrest and will then escalate the force they believe is necessary to effectuate that arrest. That means you may be forcibly thrown to the ground, set upon by more than one officer and have your equipment broken in the process. This may occur not matter how compliant you are, but it best to cooperate to the fullest extent possible. It is also important that you identify yourself as a journalist as often as possible so there is no question who you are or what your purpose was in being there. At the first appropriate moment request that a commanding officer or the PIO be notified that a journalist is being detained or has been arrested.

Your Files

While covering these events police may ask to see your images, recordings or files. Be aware that you do not have to consent to such a request. They may try to intimidate, coerce or threaten you into doing so but “consent” must be voluntary. You should know that absent consent or “exigent circumstances” an officer may not seize your camera. Exigent circumstances only exist where an officer has probable cause to believe a crime has been committed AND that you have captured evidence of that crime on your camera AND that there is also a strong likelihood that such evidence may be lost if the camera is not seized. This last element should be difficult if not impossible to satisfy given that the main purpose of a journalist is to gather and disseminate information and images.  Even when police do seize a camera they cannot view its contents without a proper warrant. There have been other instances where police have ordered journalists to delete files or have exercised self-help by deleting those files themselves. According to the Department of Justice “under the First Amendment, there are no circumstances under which the contents of a camera or recording device should be deleted or destroyed” (emphasis added).

For many of the reasons listed above it is very important that journalists work in pairs or groups so that someone may be able to notify those of us working to protect your rights that you have been arrested or are in police custody. Another suggestion is that, to the extent possible, start recording events before a situation becomes a problem and continue to record for as long as possible. Such recordings may be the best evidence to refute whatever you may be charged with.

Also be aware that many police agencies will be working at these events. The Secret Service, FBI and Department of Homeland Security (DHS) will all have a presence as will the state police along with local city and county agencies. Each has an area of jurisdiction and each may be tasked with enforcing certain laws and ordinances. Just because you receive permission from one officer does not mean that another officer only a few feet away may deny that request. Don’t expect things to make perfect sense. Try to be flexible, creative and patient while covering these situations.

Arrest & Release

If you are arrested it is crucial to remember that anything you say may be used against you and possibly lead to additional charges. Saying you are a journalist is one thing. Talking about what happened is another. The charges against journalists arrested in these situations are usually misdemeanors, violations or infractions. Such charges may include but are not limited to: disorderly conduct, failure to disperse, trespassing, unlawful assembly, disturbing the peace, failure to follow a police order and obstruction. If you are arrested expect to be handcuffed behind your back (with traditional metal handcuffs or plastic zip-tie cuffs). You will also have to be processed, which includes having your fingerprints and photograph taken and your personal information such name, address, age,  date of birth and social security number run through a national computer check for any previous criminal record or outstanding wants (other law enforcement agency looking for you) or warrants.

Once that process is complete (which may take hours depending on the number of those arrested and the number of officers assigned to booking) and depending on the charges bail will be set. Bail acts as a monetary guarantee that you will return for further court proceedings. Sometimes you may be released in your own recognizance (no money required) but that is unlikely if you are from out-of-town. In most you may be able to post a bond (another form of bail) or have someone do that for you.

The type of bond most often used for the types of charges listed above is known as a Signature or I-Bond. Such a bond requires that you post a minimal amount of money (i.e. $75.00 – $200.00) by cash or credit card.  It is very important that you receive and securely keep your bond receipt because it usually contains all the information for your next court appearance including the date and location. You will also need that receipt in order get your money back once your case has been adjudicated. If you fail to appear in court the money posted will be forfeited to the court, an arrest warrant will be issued and once found you may be arrested again.

Practical Advice

In terms of practical advice, aside from looking for great images make sure you maintain “situational awareness” or in simpler terms – know what is going on around you and how it might affect your safety. Not only is it important to be aware of what the police are doing but after this past May Day demonstration where journalists were attacked by those who did not want to be photographed or just did not like the main stream media you should also keep an eye on those who might wish to cause you harm. See the Anarchist News posting.

It is very important to pay attention to your gut instinct and always look toward having a safe way out of the crowd. Once again, I would strongly recommend working in pairs or in a group so that you can watch each other’s backs (it is easy to get tunnel vision when your eye is up to the viewfinder). This also will help should you be injured or arrested and are unable to notify anyone of your situation. Fortunately for Getty’s Joshua Lott, he was with Scott Olson who immediately reported Josh’s arrest and we (the attorney for the RCFP and me) were able to immediately contact the Chicago Police, get the initial felony charges of mob-action reduced to the misdemeanor reckless conduct and obtain his release a short time later.

Training for law enforcement officers has included advice regarding the rights of journalists and the directive that they are not to be interfered with so long as they do not violate the law, create a safety hazard or interfere with police operations. While identifying yourself as a journalist may reduce the likelihood of arrest or help speed your release the best practice is to avoid being caught-up in a mass arrest by remaining near the edge of any large demonstration and also leaving yourself an avenue of escape if needed.

Preparation

It goes without saying that it will be hot in Tampa at the end of August and not much cooler in Charlotte during the first week in September. Stay hydrated. Have plenty of water with you (also be on the lookout for places where they will be providing free bottles of water). Stay in the shade when possible.

Wear light-colored, loose-fitting clothing. Dress neatly – if you don’t want to be confused with the protesters try to find a way to not look like them. Wear sunglasses and a hat. Apply sunscreen liberally and often. Watch out for fire ants if you do sit down anywhere outside. Be aware of the weather and check weather reports. Aside from it being hurricane season, thunderstorms are a common occurrence so watch out for lightening.

You may also consider purchasing a plastic insert for the inside of a baseball hat which will keep the sun off your head and provide some protection “against lacerations, bumps and scrapes to the head area.”

There is some debate about wearing vests or hats with PRESS written in large type. On one hand it leaves no doubt about your purpose but on the other may make you a target. The one thing you should do is clearly display your press credentials or ID’s if you have them.

Other items you may wish to have with you are eye protection and something to cover your nose and mouth with such as a surgical or painters mask. Of course sometimes wearing a mask will bring you extra police scrutiny but if the police have already deployed OC spray or other crowd control agents the benefit of the mask might well outweigh the downside. If you wear contact lenses consider going back to wearing glasses for the time you are out covering the protests. See How to prepare for OC Spray.

Your Equipment

Visual journalists carry equipment ranging from a cellphone camera or a simple point-and-shoot to high-end digital cameras, Betacams, laptops and other gear worth thousands of dollars. No matter what you use, the equipment is essential to doing your job and its safety and security should be of utmost importance to prevent it from becoming damaged, lost, stolen or seized.

For those who use Apple products, make sure that you activate the tracking and auto-lock features on their iPhones and iPads. Also be sure to write down the description and serial numbers of all your equipment and devices and store that list in a safe but easily accessible place in order to file a complete police report and to expedite recovery if they are stolen.

As for camera equipment, some also suggest being well connected to your gear using “Sun Sniper” straps that have steel cables running through them.

Also make backups of all your important files and keep it on a remote computer or USB drive which you have stored in a safe and secure place. Consider using the Cloud or similar remote storage for these files as well for livestreaming of your images in case your camera is lost, stolen or seized by police. For more info on staying safe read Poynter.

Conclusion

Police in Chicago exercised considerable restraint in allowing protesters to move into non-designated areas and did not interfere with non-permitted marches. The Chicago police also did not distinguish between credentialed and non-credentialed journalists when allowing access to most public places and, except for arresting a Getty photographer, did not interfere with those taking pictures, recording video, or livestreaming events. Given that command staff from both the Tampa and Charlotte-Mecklenburg police departments were present in Chicago to observe, it can only be hoped that they will take the same reasonable approach in dealing with these issues.

If you get into trouble or have questions about certain situations please feel free to contact me by email at [email protected] or by text or cellphone at 716.983.7800. For more information and links to reference material click here:

DISCLAIMER – This blog is not intended to be legal advice nor does it create an attorney-client relationship. It is not possible to anticipate every situation. Laws and regulations vary from one area to another and federal, state or local laws may apply. Anyone seeking legal advice should contact an attorney in their area of the country familiar with criminal and First Amendment Law.

Posted in Access, ACLU v Alvarez, Assault on Photographers, broadcasting, Cameras, cell phone cameras, Chicago, Chicago Police, Democratic National Convention, Department of Justice, Exigent Circumstances, First Amendment, First Amendment rights, FL, Florida, Fourth Amendment, Fourth Amendment rights, Glik v Cunniffe, Illinois, Illinois Eavesdropping Law, National Press Photographers Association, NC, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Recording, Recording Police, Reporters Committee for Freedom of the Press, U.S. Secret Service, video cameras | No Comments »

ACLU v Alvarez – Will the Supreme Court Hear the Case?

July 11th, 2012 by Mickey Osterreicher and tagged , , , , , , , ,

As you may recall, last week I updated the case of ACLU v Alvarez regarding the constitutionality of the Illinois Eavesdropping Act (the Act) which makes it a crime to audio record police officers without their permission while they are performing their official duties in a public place.

Well now a case that appeared to be over – isn’t. After a motion hearing, held on July 3, 2012, newly reassigned District Judge Sharon Johnson Coleman granted the ACLU motion for the preliminary injunction and entry of amended complaint in compliance with the Seventh Circuit’s May 8, 2012 opinion. This has the effect of enjoining the State’s Attorney (or anyone else in Illinois) from prosecuting the ACLU or its employees under the Act “for openly audio recording police officers, and civilians talking to such officers, without the consent of the officers and civilians when (a) the officers are performing their public duties, (b) the officers are in public places, (c) the officers are speaking at a volume audible to the unassisted ear of the person making the recording, and (d) the manner of recording is otherwise lawful.” While the language of the preliminary injunction specifically protects only the ACLU, one would hope that the state would also refrain from prosecuting anyone else under the Act, but given Ms. Alvarez’ dogged pursuit of this matter there is no guarantee.

The judge also heard arguments regarding State Attorney Alvarez’ motion to stay the proceedings while she seeks appeal from the United States Supreme Court. motion to stay “that that there is a reasonable probability that four [Supreme Court] justices will consider the issue sufficiently meritorious to grant certiorari, Judge Coleman granted the stay pending the filing the Writ of Certiorari.

In explaining her decision the Court took notice of the Seventh Circuit’s opinion finding the Act “an outlier in the country because it has no expectation of privacy provision and instead prohibits all non-consensual recordings.” But she also took note that “the Court has not considered the precise issues here – whether the police have any legitimate privacy interest in their public statements and activities while on duty, which is precisely why the Court may choose to hear the case.” Judge Coleman further rationalized that “while it may be likely that the Supreme Court will affirm the Seventh Circuit’s decision, it would likely do so with greater finality and expediency than if this matter proceeds in this Court and through a second appeal to the Seventh Circuit.” She also struck a proper balance by protecting both parties rights, finding that during the stay “Alvarez will not suffer any harm by not prosecuting anyone under this statute” while “the ACLU has the benefit of a preliminary injunction protecting their activities and precluding prosecution under the Act.”

She has scheduled a status hearing for 10/29/2012 at 9:00 a.m. And so the saga continues.

Posted in ACLU v Alvarez, Chicago, Chicago Police, First Amendment, First Amendment rights, Illinois, Illinois ACLU, Illinois Eavesdropping Law, National Press Photographers Association, News Photography, Newsgathering, NPPA, Photographers' Rights, Reasonable Expectation of Privacy, US COurt of Appeals for the 7th Circuit | No Comments »

ACLU v Alvarez: The Case Continues

July 5th, 2012 by Mickey Osterreicher and tagged , , , , , , , ,

For those of you following the case of ACLU v Alvarez regarding the constitutionality of the Illinois Eavesdropping act the case is far from over despite the opinion by the United States Court of Appeals for the 7th Circuit on May 8, 2012.

Three days later, Appellee Anita Alvarez filed a motion to extend time to file a petition for rehearing and the ACLU filed a response in opposition. Interestingly enough, both parties used the approaching NATO Summit as the justification for their motion: the State’s Attorney, because her staff was busy preparing for it; and the ACLU, because it wished the preliminary injunction immediately put into effect to prevent the enforcement of the Act during the Summit. On May 15, 2012 the court granted the motion to extend the time to file and on May 29, 2012 in accordance with that order the Appellee filed a petition for an en banc rehearing.

As part of its petition, the State’s Attorney claimed that “[t]he panel majority decision . . . creates [an] unlimited First Amendment right of the public to engage in audio-recording and surveillance of public officials encountering private civilians regardless of whether the persons speaking consent to such recording.” Arguing that the Act “requires the recorder to obtain consent from the putative speakers as a prerequisite to recording,” the State’s Attorney maintains that the Act ultimately “regulates conduct (i.e., failing to obtain consent) not speech.”

Following denial of that motion by the 7th Circuit on June 14, 2012 and the transfer of the case to District Judge Sharon Johnson Coleman, the ACLU filed for entry of its amended complaint and for the implementation of the preliminary injunction on June 25, 2012. The next day it moved for summary judgment. Not surprisingly, on June 28, 2012 the State’s Attorney once again moved “to stay all proceedings in the District Court so that State’s Attorney Alvarez may prepare and file a petition for writ of certiorari in the instant case to the United States Supreme Court. Alternatively, State’s Attorney Alvarez moves to stay briefing of Plaintiff’s motion for summary judgment and allow discovery.”

The ACLU entered its opposition to that motion on July 2, 2012, asserting that “Alvarez does not meet any of the requirements for a stay pending the filing and disposition of a writ of certiorari;” and citing Hollingsworth v. Perry, 130 S. Ct. 705 (2010) for the proposition that “To obtain a stay pending the filing and disposition of a petition for a writ of certiorari, an applicant must show (1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority of the Court will vote to reverse the judgment below; and (3) a likelihood that irreparable harm will result from the denial of a stay.”

Among other things, the ACLU argued that the State’s Attorney cannot “meet her burden of proving . . . a reasonable probability that four Justices will vote to grant certiorari;” “that she cannot meet her separate burden of proving ‘a likelihood that irreparable harm will result from the denial of a stay;’” and that she did not articulate with specificity (or in any way whatsoever) facts necessary to overcome  a motion for summary judgment.

Stay tuned for further developments in this ongoing case.

Posted in ACLU v Alvarez, Certiorari, Chicago, Chicago Police, Federal Court, First Amendment, First Amendment rights, Illinois, Illinois ACLU, Illinois Eavesdropping Law, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Reasonable Expectation of Privacy, Recording, Recording Police, US COurt of Appeals for the 7th Circuit, US Supreme Court | No Comments »

NPPA General Counsel Speaks on Photojournalism Issues at National Press Club

June 28th, 2012 by Advocacy Intern and tagged , , , , ,

Mickey H. Osterreicher, general counsel for the National Press Photographers Association (NPPA), spoke at the National Press Club (NPC) in Washington, D.C. on June 27, 2012 where he warned NPC members of ongoing issues concerning copyright infringement and the assault on the right to photograph in public places.

“It’s vital for citizens and journalists to know their rights when taking pictures or recording in public places. It’s even more crucial that police departments have appropriate policies and continuously train their officers regarding those rights,” Osterreicher said following the speech.

Osterreicher, who spoke to the NPC last January on a similar topic paid particular attention to the increasing prevalence of police interfering with the rights of the public and the media to photograph in public places.  He noted that there have been a growing number of arrests of citizens and photographers who take pictures, particularly those who have documented activist gatherings such as the Occupy protests.

Osterreicher attributed the increase in these incidents to the widespread proliferation of cameras and smartphones, which make it possible for anyone to photograph and record matters of public concern and then provide that material to the rest of the world via the Internet.  He said that police nationwide have shown a reluctance to allow such documentation, and have often responded with hostility and threats of arrest.

“I think it’s the culture of the police,” Osterreicher said.  “Their idea of serve and protect often means protecting people  and other officers from having their pictures taken.”

The NPPA has come to the defense of many of these photographers, both professional and amateur, because of its belief that government officials should never be left to determine what is or is not a newsworthy picture or story. The organization urges offending police departments to drop charges and to adopt policies that do not interfere with the public’s right to photograph.

Osterreicher talked about training sessions he has held with several police departments on how to interact with the press,  his work with the Chicago Police and the Reporters Committee for Freedom of the Press during the NATO Summit and his preparations for the upcoming national political conventions.

He said he offers this service whenever he writes to police departments that have had incidents with photographers. “People ask me ‘Why do you write so many letters?'” Osterreicher said. “Well, the answer is that it’s cheaper than bringing a lawsuit.  It’s cheaper for everyone, but as the police so often say ‘we can do this the easy way or the hard way,’ I think that a letter is the easy way but in some recently filed lawsuits NPPA has provided support against those departments and officers who blatantly violated our members’ constitutional rights.”

Osterreicher also spoke about instances in which police have taken cameras and phones and deleted photos or compelled the person who took the photos to do so.  He reminded members of the NPC that under no circumstances do officers have the right to delete or destroy photographs or video.

Osterreicher said that he is hopeful that incidents like these decline once police are educated and trained regarding the rights of the press and public to photograph and record.

“The police aren’t going anywhere.  The media isn’t going anywhere.  We need to find a way to do our jobs without interference.”

 

Posted in Access, Assault on Photographers, Attack Photographers, Cameras, cell phone cameras, Chicago Police, First Amendment, First Amendment rights, law, Lawsuit, Legal, National Press Photographers Association, News Photography, Newsgathering, NPPA, Occupy Wall Street, Occupy Wall Street Arrests, photographers, Photographers' Rights, photojournalism, Police, Public Photography, Recording, Recording Police, Reporters Committee for Freedom of the Press, video cameras | No Comments »

Rep. Nekritz Re-introduces Bill to Amend IL Eavesdropping Law

May 8th, 2012 by Mickey Osterreicher

Illinois Rep. Elaine Nekritz, has sponsored a new bill that would amend the draconian measures found in the state’s current Eavesdropping law. SB 1808 amends the Illinois Criminal Code concerning eavesdropping exemptions and provides that a person may record the conversation of a law enforcement officer who is performing a public duty in a public place and any other person who is having a conversation with that law enforcement officer if the conversation is at a volume audible to the unassisted ear of the person who is making the recording.

The bill also defines “public place” and provides that if a recorded conversation authorized under this exemption is used by a complainant as part of the evidence of misconduct against a police officer and is found to have been intentionally altered by or at the direction of the complainant to inaccurately reflect the incident at issue, it must be presented to the appropriate State’s Attorney for a determination of prosecution.

Current Illinois law permits videotaping officers in public but criminalizes the interception of oral communication (audio recording) without the consent of all parties. A conviction on such a felony charge could result in a 15 year jail sentence. Some recent prosecutions under the current law have resulted in acquittals and in others the trial court judge found the statute to be unconstitutional. Supporters of the bill believe it strikes the right balance between the reasonable expectation of privacy and the First Amendment by allowing citizens to audio record law enforcement officers performing public duties in public places.

In a similar case, Glik v. Cunniffe,  the United States Court of Appeal for the First Circuit found the public and the press have a “co-extensive” right to record officers in public places.  In another case, Sharp v Baltimore City Police, the United States Department of Justice filed a Statement of Interest in support of such recordings. The ACLU has challenged the constitutionality of the Illinois Eavesdropping statute in ACLU v Alvarez and a decision is expected by the Seventh Circuit any day. The Chicago Police Department recently announced that it would not seek to enforce the law during the NATO Summit scheduled for later this month.

NPPA submitted Comments in support of a previous bill that recently failed in the House by 15 votes. Not surprisingly police organizations opposed that measure citing fears that people might edit or alter the recordings to use as evidence of officer misconduct. The new bill addresses those concerns. According to Rep. Nekritz, the new bill “would address some high-profile prosecutions that occurred under the existing  eavesdropping law of citizens who have done nothing more but take out their cell phones and record a police officer performing public duty.”

The State Journal-Register, The Southern, Chicago Sun-Times, and Chicago Tribune have all written editorials in support of this measure and it is also supported by the Illinois State Bar Association, Illinois Press Association and the American Civil Liberties Union. The bill has already passed out of the Houses Judiciary Committee on Civil Law and will be brought to the floor sometime in the next few weeks.

Posted in Access, ACLU v Alvarez, cell phone cameras, Chicago, Chicago Police, DOJ, First Amendment, First Amendment rights, Glik v Cunniffe, Illinois, Illinois Eavesdropping Law, Illinois General Assemby, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Public Photography, Reasonable Expectation of Privacy, Recording, Recording Police, Rep. Elaine Nekritz | 1 Comment »

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 | 4 Comments »

NPPA FIles Comments in Support of H.B. 3944 Amending the Criminal Provisions of the Illinois Wiretap Law

February 6th, 2012 by Mickey Osterreicher

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 97th General Assembly of the State of Illinois to immediately enact H.B. 3944.

Posted in Access, broadcasting, Cameras, cell phone cameras, Chicago, Chicago Police, confiscated, DOJ, First Amendment, First Amendment rights, Fourth Amendment, Fourth Amendment rights, G-8 Summit, H.B. 3944, Illinois, Illinois General Assemby, National Press Photographers Association, News Photography, Newsgathering, NPPA, Photographers' Rights, photojournalism, Police, Public Photography, Reasonable Expectation of Privacy, Recording Police, Regulations limiting photography, Search and Seizure, Suspicious Activity, Terrorism, video cameras, Wiretap Law | No Comments »