Search

New Developments in the Ongoing Assault on the Right to Photograph/Record in Public

January 12th, 2012 by Mickey Osterreicher

January 10, 2012 might not be a day that any real headlines were made but in the ongoing assault on the right to photograph/record in public, events took place in two separate cases that may mark the start of a change in how this issue is viewed by the courts and police. First, in the United States District Court for The District Of Maryland, the Department of Justice filed an 18 page ““Statement of Interest of The United States” ” Sharp v. Baltimore City Police, et al.

According to the complaint, filed by the ACLU of Maryland in August 2011, “this is a civil rights action challenging as unconstitutional the Baltimore City Police Department’s warrantless arrest and detention of plaintiff Christopher Sharp, as well as the seizure and destruction of Mr. Sharp’s property, premised upon Mr. Sharp’s exercise of his rights under the federal and Maryland constitutions to document the conduct of City police officers performing their public duties in a public place.”

That complaint which was filed in the Circuit Court for Baltimore City Maryland and later removed to federal court stems from an incident in which Christopher Sharp videotaped police using excessive force to effectuate the arrest of a female friend while they were in the Pimlico Race Course Clubhouse at the 2010 Preakness Stakes. Video taken of the beating by another observer can be found on YouTube: http://www.youtube.com/watch?v=nWF3Ddr7vdc.

Sharp refused police requests to surrender his video as “evidence”, whereupon it is alleged that police “seized his cell phone, and detained him while one officer left the area with the phone. After the officers returned the phone, Mr. Sharp discovered that the officers had deleted video of the arrest and all other videos that had been stored on the device, including numerous videos of his young son and other personal events.”

“This litigation presents constitutional questions of great moment in this digital age: whether private citizens have a First Amendment right to record police officers in the public discharge of their duties, and whether officers violate citizens’ Fourth and Fourteenth Amendment rights when they seize and destroy such recordings without a warrant or due process. The United States urges this Court to answer both of those questions in the affirmative” the DOJ statement read in what is believed to be the first time it has weighed in on the issue of recording police. “The right to record police officers while performing duties in a public place, as well as the right to be protected from the warrantless seizure and destruction of those recordings, are not only required by the Constitution. They are consistent with our fundamental notions of liberty, promote the accountability of our governmental officers, and instill public confidence in the police officers who serve us daily.”

In the second case, Glik v Cunniffe, 655 F.3d 78 (1st Cir. 2011) (denying qualified immunity to officer on arrestee’s First and Fourth Amendment claims), the Boston Police Department concluded an almost four (4) year internal investigation. In a letter to Mr. Glik, cell phone cinematographer Simon Glik, superintendent Kenneth Fong of the Boston Police Department’s Bureau of Professional Standards said that officers had shown “unreasonable judgment” by taking him into custody.

By way of background – while walking through Boston Commons in October 2007, Massachusetts criminal defense attorney, Simon Glik, observed three Boston police officers attempting to arrest a suspect. After hearing another bystander say “you are hurting him, stop” and being concerned that the police were using excessive force Glik began to record the incident on his cell phone camera from about ten feet away. Once the suspect was in handcuffs one of the officers told Glik “I think you have taken enough pictures.” When Glik continued to record another officer asked Glik if he was recording audio. When Glik said yes he was handcuffed and arrested by police. The charges were unlawful audio recording in violation of  Massachusetts’ wiretap law, disturbing the peace and aiding in the escape of a prisoner. After his arrest Glik filed a complaint with internal affairs regarding the incident. The Boston Police “did not investigate his complaint or initiate disciplinary action against the arresting officers.”

In February 2010, Glik, represented by the Massachusetts chapter of the ACLU, filed a civil right complaint in the United States District Court for the District of Massachusetts against the three arresting officers as well as the City of Boston under 42 U.S.C. § 1983 for violations of his First and Fourth Amendment rights. The complaint also alleges state-law claims under the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11I, as well as malicious prosecution.

The defendants moved to dismiss under FRCP 12(b)(6) for failure to state a claim for which relief can be granted and because the officers were entitled to qualified immunity. At a motion hearing the district court denied the defendant’s motion, stating that “in the First Circuit . . . this First Amendment right to publicly record the activities of police officers on public business is established.”

In its decision the First Circuit reasoned that, given the facts in Glik, since “the qualified immunity doctrine ‘balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably;’ ‘a reasonable defendant would have understood that his conduct violated the plaintiff[’s] constitutional rights.’”

The City of Boston appealed this ruling on behalf of its officers (See:  City’s Brief and  ACLU Brief; as well as two amicus briefs: Center for Constitutional Rights and Reporters Committee for Freedom of the Press).

Apparently following up on Glik’s initial 2007 complaint to police  “a department spokeswoman told the Boston Globe that the officers, John Cunniffee and Peter Savalis, now ‘face discipline ranging from an oral reprimand to suspension.’” Glik told the Globe, “As far as I knew, my complaint was summarily dismissed. . . . I was basically laughed out of the building,’’ Glik said. “From what I understand, it takes filing a federal lawsuit in order for internal affairs to review a complaint.’’

That lawsuit and the one in Sharp now move forward with new momentum. It will also be interesting to see what impact this has on the awaited decision in ACLU v Alvarez before the Seventh Circuit. Stay tuned!

Posted in Access, Baltimore Police, Boston Police, cell phone cameras, Christopher Sharp, confiscated, Department of Justice, DOJ, First Amendment, First Amendment rights, Fourth Amendment, Fourth Amendment rights, law, Legal, Maryland ACLU, Massachusetts ACLU, National Press Photographers Association, NPPA, photographers, Photographers' Rights, Police, Public Photography, Recording Police, Search and Seizure, Simon Glik | No Comments »

NPPA Commends CCR in Settlement of a Federal Lawsuit Filed on Behalf of Arrested Journalists

October 4th, 2011 by Mickey Osterreicher

Given the rash of recent incidents involving the arrest of citizens and journalists around the country, NPPA commends the Center for Constitutional Rights (CCR) for the agreement they have obtained on behalf of journalists in Goodman, et al. v. St. Paul, et al. We agree with  CCR Legal Director Baher Azmy, who said the settlement “sends an important message to police departments all over the country . . . that failure to respect the constitutional rights of citizens and journalists may expose municipalities to serious liability.”

The terms of the settlement include compensation of $100,000 for the three named journalists as well as an “agreement by the St. Paul police department to implement a training program aimed at educating officers regarding the First Amendment rights of the press and public with respect to police operations—including police handling of media coverage of mass demonstrations—and to pursue implementation of the training program in Minneapolis and statewide.” Written proposals for these programs, which must be approved by the Plaintiffs and their lawyers are expected to be submitted by the end of the year.

The lawsuit was filed on May 5, 2010 in the United States District Court in the District of Minnesota by the Center for Constitutional Rights and pro bono attorneys Steven Reiss from Weil, Gotshal and Manges LLP in New York and Albert Goins of Minneapolis on behalf of three “Democracy Now!” journalists, Amy Goodman, Sharif Abdel Kouddous and Nicole Salazar, against federal and local law enforcement agencies. The defendants in the lawsuit were: the City of St. Paul, the City of Minneapolis, the County of Ramsey, St. Paul police chief John Harrington,  Minneapolis police chief, Timothy Dolan, Ramsey County Sheriff, Bob Fletcher, an unidentified U.S. Secret Service agent and multiple unidentified law enforcement officers. The matter arose  during the 2008 Republican National Convention, where it was alleged that law enforcement agencies targeted journalists in violation of their Constitutional rights and subjected the journalists to unlawful arrest, unlawful search and seizure and unreasonable use of excessive force. All charges were later dismissed.

The complaint also alleged that “by arresting, assaulting, and detaining Plaintiffs and other members of the press, law enforcement significantly hindered Plaintiffs’ ability to . . . report on vital matters of public concern     . . .  and the conduct of law enforcement personnel . . . .”  According to reports “scores of journalists and other members of the media were arrested, detained, assaulted and searched. Their belongings were also seized and searched, including their cameras, video and other media equipment. The journalists prominently displayed their press credentials throughout the incidents and repeatedly identified themselves as members of the media to the acting law enforcement.”

NPPA commends CCR for its strong stance in protecting the rights of journalists. We expect that the terms of the settlement in this case will send a strong message to law enforcement agencies around the country. The recent and continuing conduct by law enforcement agencies in harassing, detaining, interfering with and in some cases arresting citizens and journalists engaged in constitutionally protected  activities  under color of law must cease. In each of these cases NPPA has requested that the offending police agency implement proper policies, procedures and guidelines as well as training for officers regarding the First Amendment rights of the press and public.

Posted in Access, broadcasting, Cameras, confiscated, Democarcy Now!, First Amendment, First Amendment rights, Fourth Amendment, Fourth Amendment rights, law, Legal, Minneapolis Police, National Press Photographers Association, News Photography, NPPA, photographers, Photographers' Rights, photojournalism, Police, Public Photography, Recording Police, Search and Seizure, St. Paul Police, U.S. Secret Service, video cameras, violating | No Comments »

NPPA Voices Strong Objections to Congressional Incident in Cincinnati

August 25th, 2011 by Mickey Osterreicher

NPPA has written strong letters of objection to both U.S. Rep. Steve Chabot (R-Ohio)  and the Cincinnati Police Chief after video cameras belonging to citizens were seized by a police officer acting upon orders from the congressman’s aides.

The incident occurred on August 22, 2011 while Chabot was speaking to the public at a town hall meeting. According to press reports, Chabot spokesman Jamie Schwartz admitted that “he had a Cincinnati police officer confiscate the cameras ‘to protect the privacy of constituents.’”

Think Progress also reported that signs were posted on doors at the NorthAvondale Recreation Center that read: “For Security Purposes, Cameras Are NOT Permitted.”  Video posted on Carlos Miller’s website shows clips of the incident. At least two photographers recording with broadcast quality cameras can be seen in the video although they were not interefered with.

What is most disconcerting is that Congressman Chabot sits on the U.S. House of Representatives Commitee on the Judiciary which deals with these very issues and has supported legislation permitting “the photographing, electronic recording, broadcasting, or televising to the public of [federal] court proceedings. In seeking “a complete and immediate apology” by the congressman for this  “blatant constitutional transgression” the NPPA letter also wrote that “posting signs banning cameras ‘for security purposes’ does not supersede the constitutional rights of citizens.”

Reaction to the incident has been extremely negative and widespread with hundreds of comments posted on YouTube, Congressman Chabot’s Facebook wall and sent to his congresssional website page. This appears to be exactly the embarrassing outcome that aides had intented to avoid. Schwartz also is reported to have said that the cameras confiscated “from David Little and Liz Ping, who were given the cameras back at the end of the meeting.”

The NPPA letter to Cincinnati Police Chief James E. Craig stated that “whether the officer acted at the request of the congressman or his staff or of his own volition exhibits a total lack of understanding and/or disregard for the constitutional protections afforded those he is sworn to serve and protect. Law enforcement agencies are established to uphold and enforce laws in a professional manner, part of which is to exercise good judgment. I believe that your officer abused that discretion by his actions.” The letter also went on to state that “if your department’s vision is to be ‘recognized as the standard of excellence in policing’ by ‘the delivery of fair and impartial police services while maintaining an atmosphere of respect for human dignity;’ then we would respectfully request that you maintain your ‘integrity,’ ‘professionalism,’ and ‘accountability’ by upholding your ‘obligations to the department and community’ and reinstate ‘public trust’ by a full and impartial investigation of this incident.” The letter concluded by a “request that your department immediately issue orders directing officers to cease such activity and also that your department implement revised training for all officers regarding these matters.”

Another town hall meeting is scheduled for August 29, 2011. Schwartz assured reporters that “no cameras would be seized at” that meeting.

Read more: http://www.upi.com/Top_News/US/2011/08/24/Video-cameras-confiscated-at-town-hall/UPI-46281314241497/#ixzz1W3ygwoJo

 and http://www.pixiq.com/article/ohio-congressman-bans-cameras-from-town-hall-meeting

Posted in Access, Cameras, cincinnati police, condemned, confiscated, congressman, ethics, First Amendment, First Amendment rights, Fourth Amendment, Fourth Amendment rights, law, Legal, mass media, National Press Photographers Association, News Photography, NPPA, photographers, Photographers' Rights, Police, Politics, Public Photography, Search and Seizure, steve chabot, Town Hall Meeting, video cameras, violating | 1 Comment »

Next Entries »