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Florida Prosecutor Drops Charges Against NPPA Member; Lawsuit Filed

March 30th, 2012 by Mickey Osterreicher

In January of this year Stephen Horrigan, an NPPA member was charged with felony eavesdropping and misdemeanor obstruction for using his cellphone to record a traffic stop by police officers in North Port, Florida. Horrigan came out of his nearby home to see what was going on and determine the newsworthiness of the situation. For doing nothing more than that, as he stood with other members of the public, he ended up spending a night in jail while facing a five year prison term if convicted on the eavesdropping charge. Adding insult to injury the police seized his phone as “evidence” and held it until recently.

On January 30. 2012 NPPA sent a letter to North Port Police Chief Kevin Vespia, strongly objecting to “the treatment and arrest of NPPA member and freelance photojournalist Stephen P. Horrigan.” The letter went on to state “in addition to the arrest, the fact that Mr. Horrigan’s camera was unlawfully seized is also extremely troubling. We believe that his video of the incident will show that officers acted in an arbitrary, capricious and unprofessional manner and appeared to have no concept of the First and Fourth Amendment rights granted under the United States Constitutions as well as similar protections provided by Florida law.” The letter concluded with the request “that the charges against Mr. Horrigan be immediately dropped; that his equipment and any recordings made by him be immediately returned; and that this incident be fully investigated. We further request that your department immediately issue orders directing officers to cease such activity and also that your department implement revised training for all officers regarding these matters.”

This case was covered extensively in the press by Billy Cox of the Sarasota Herald-Tribune and Carlos Miller of Photography is Not a Crime. As a justification for trampling on the rights of a citizen they produced a Probable Cause Affidavit and also referred to “a legal guideline that our officers have read and discussed during roll call. The issue here is not the video portion but the audio portion. This is the current guideline we use for cases like these. The guideline was issued by the legal counsel of the Palm Beach County Sheriff’s Office and permission was granted for distribution,” according to North Port Police Captain Robert Estrada, in an email.

After reviewing that “January 2010 North Port Police Bulletin #10-12” along with a Law Enforcement News Letter the NPPA sent a scathing email back to Captain Estrada and Chief Vespia citing cases and correcting the misinformation provided in the bulletin concerning the circumstances under which there may and may not be a “reasonable expectation of privacy.” Although there had been some positive dialogue between NPPA and the North Port Police there was no response to the email or even acknowledgement that it had been received.

In February an attorney from the Florida ACLU, Andrea Mogensen agreed to represent Mr. Horrigan, who as of March 11, 2012 had still not heard from the State Attorney’s Office (SAO) as to whether they planned to move forward on the original charges. On March 13, 2012 the Herald-Tribune printed a column by Eric Ernst supporting Horrigan’s’ position. Shortly thereafter Horrigan filed (on his own) a Motion for Hearing: A Plea for Relief from Prior Restraint seeking the return of his smartphone, battery and memory card, and alleging, among other things that the seizure of those items violated the First Amendment to the U.S. Constitution and Article I, Section 4 of the State of Florida Constitution as being a form of prior restraint on his ability to publish that material. He also asserted that as the operator of “a web-site news-gathering ‘blog’ and dues paying member of the National Press Photographers Association” he may not have any greater rights under the First Amendment than the public but that he enjoyed no less right because of it.

A week later a detective came to his house at 7am to tell him that he could pick-up his phone at the evidence room. In utter surprise he found that the video had not been deleted, although he believes that it had been viewed or copied. He posted it on YouTube for everyone to see. So far it has over 4,200 hits. The Herald- Tribune posted an editorial urging police, prosecutors and legislators to improve their guidelines, training and practices and also revise the eavesdropping statute.

Yesterday the SAO declined to prosecute and dropped the charges, noting in a memo that the people could not meet their burden of proof beyond a reasonable doubt and also questioned whether the officer had an expectation of privacy in this instance. As for the “resisting, obstructing, or opposing an officer without violence charge,” State’s Attorney Eric Werbeck concluded that Horrigan did not meet any of the elements constituting that crime either.

While the NPPA is gratified to see that prosecutors had the common sense to drop these charges (as has happened in almost all such cases around the country) it is too bad that the North Port police did not use the same good judgment. As is often said in police parlance “we can do this the easy way or the hard way.” The latter choice resulted in six-figure settlements in two recent cases. Once again, it appears that police ignorance and arrogance concerning constitutional rights may result in another costly combination, ultimately born by taxpayers who can ill afford it.

In a late-breaking development Ms. Mogensen announced in a press release that she has filed a notice with the City of North Port claiming monetary damages in excess of $200,000.00 based upon false arrest, retaliation for the exercise of First Amendment rights, and malicious prosecution.

Posted in Access, confiscated, detained, False Arrest, First Amendment, First Amendment rights, Florida, FLorida ACLU, Fourth Amendment, Fourth Amendment rights, Lawsuit, Legal, Malicious Prosecution, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Public Forum, Public Photography, Reasonable Expectation of Privacy, Recording, Recording Police, retaliation for the exercise of First Amendment rights, Search and Seizure, video cameras | 2 Comments »

NPPA SEEKS DISMISSAL OF CHARGES AGAINST TEMPLE UNIVERSITY PJ STUDENT

March 22nd, 2012 by Mickey Osterreicher and tagged , , , , ,

*******UPDATE – See reply from Philadelphia Police Chief Charles H. Ramsey.

******* UPDATE – See attached Philadelphia Police Commissioner’s Memo dated 9-23-11 regarding Photography and Recording of Police Officers While Performing Official Functions in Public Places.  Clearly the officers involved in this incident violated that policy.

The NPPA sent a letter to Philadelphia Police Commissioner, Charles H. Ramsey seeking the dismissal of all charges against Temple University photojournalism student Ian Van Kuyk. Mr. Van Kuyk was arrested on the night of March 14, 2012 outside his residence while taking pictures of uniformed Philadelphia police performing a routine traffic stop.  In addition to the dismissal of all charges, the NPPA also requested that the incident “be fully investigated with commensurate disciplinary measures for the officers involved.”

Mr. Van Kuyk, who was with his girlfriend (also arrested) said he never came closer than ten feet (10’) to the scene when he was ordered back, voluntarily backed up and was at least thirty feet (30’) away when a uniformed police officer approached Mr. Van Kuyk in an aggressive manner demanding that he stop taking pictures. Mr. Van Kuyk politely told the officer that he was a Temple University photojournalism student and also that he was within his rights to be taking photos on a public street.

Without provocation the officer then began pushing and shoving Mr. Van Kuyk. In response to Mr. Van Kuyk’s statement that his rights were being violated in a public domain the officer is alleged to have responded “Public domain, yeah we’ve heard that before!” whereupon he threw Mr. Van Kuyk to the ground and began pushing his face into the sidewalk. In order to avoid having the camera (which he announced was school property) damaged during this assault by your officer Ms. Feighan attempted to retrieve it from Mr. Van Kuyk’s hand but was also taken to the ground by another officer. They were then both handcuffed and placed in patrol cars.

He is charged with five (5) offenses (four (4) misdemeanors and one (1) felony): Obstructing Justice, Resisting Arrest, Hindering Apprehension and two (2) counts of Disorderly Conduct. Ms. Feighan, who originally was at the same station was later taken to a different station where she was detained for more than eighteen (18) hours. Neither of them were told the names of the officers involved, nor did they receive a copy of an accusatory instrument. Ms. Feighan’s preliminary trial was held on March 20th (less than a week after the incident) and Mr. Van Kuyk’s is scheduled for April 16, 2012.

 

 

 

 

 

 

 

 

it is also alleged that at least two (2) officers came up to Mr. Van Kuyk’s window and made threatening comments to him. He was then taken to the 1st  District police station where he was held for nearly twenty-four (24) hours. He was not allowed to make a telephone call for nearly eight (8) hours at which time he was told (for the first time) that he was being charged with disorderly conduct.

 

Upon Mr. Van Kuyk’s ROR he came to learn that he was being charged with five (5) offenses (four (4) misdemeanors and one (1) felony): Obstructing Justice, Resisting Arrest, Hindering Apprehension, Disorderly Conduct and Disorderly Conduct – Fight II. Ms. Feighan, who originally was at the same station was later taken to a different station where she was detained for more than eighteen (18) hours. Neither of them were told the names of the officers involved, nor did they receive a copy of an accusatory instrument. Ms. Feighan’s preliminary trial was held on March 20th (less than a week after the incident) and Mr. Van Kuyk’s is scheduled for April 16, 2012.

 

Posted in Access, First Amendment, First Amendment rights, Fourth Amendment, Fourth Amendment rights, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Public Photography, Student, students | 3 Comments »

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 Attorney Obtains Another Dismissal in Cases Against Photojournalists Covering Occupy Protests

February 21st, 2012 by Alicia Calzada and tagged , , , , , , ,

Charges were dismissed last week against a New York City photojournalist arrested while covering the Occupy Wall Street protests.

NPPA’s general counsel, Mickey H. Osterreicher, was successful in obtaining court dismissal of charges stemming from the arrest last November of NPPA member Douglas Higginbotham while he was covering the Occupy Wall Street protests.

Charges were dropped “in the interest of justice,” in response to Osterreicher’s motion to dismiss, made on his behalf. Higginbotham was arrested after he stood on top of a phone booth to get a better vantage point of the protest. As he was attempting to get down (after being ordered to do so by police) officers pulled him off his perch and arrested him for disorderly conduct.

NPPA president Sean Elliot said, “I am pleased to see the correct outcome in this case but unfortunately the fact that Mr. Higginbotham was arrested in the first place represents just another example of a disturbing trend in police-press relations.” “I would hope that the NPPA, SPJ and other organizations representing journalists can continue to make headway in educating police officials on how to better work with the media and avoid such incidents as this in the future,” he added.

Ironically, last year while covering a celebration of the death of Osama bin Laden, Higginbotham was helped up onto another nearby phone booth by police and firefighters. “Being a freelancer working in New York for a TV station in New Zealand, I was very concerned and upset after my arrest,” Higginbotham said in an interview. “Knowing that I had NPPA representing me was very reassuring. I am just glad that this episode is over and that the charges were dismissed,” he added.

The Society for Professional Journalists (SPJ) provided financial assistance for his defense. “I’m not surprised by the outcome,” said SPJ President John Ensslin. “I felt Doug had a strong case and I know he had a good lawyer.” “We at SPJ are relieved and happy that this case is over and that Doug can go back to doing what he does without the threat of prosecution hanging over his head.”

Watch video of TV New Zealand story and his arrest

Charges were also dropped in January, against Jennifer Weiss, a freelance video and print journalist who had been working for Agence France-Presse covering the clearing of Zuccotti Park on November 15 of last year. She was attempting to get to the scene, when a police officer singled her out for arrest. She identified herself as a journalist, but was not allowed to call her editor until after she was released and was one of several journalists arrested that day. She had been charged with blocking pedestrian traffic and disorderly conduct and was issued an appearance ticket, which Osterreicher succeeded in having dismissed.  Ms. Weiss said, “Mickey was extremely helpful, accessible and answered all my questions — and ultimately got my charges dismissed ahead of my court date. I’m very grateful to him for the time and effort he put in on my case.”

Also in January, Osterreicher represented Jonathan Foster, an NPPA student member who was charged with trespassing after being arrested covering Occupy Rochester. Prosecutors initially refused to drop the charges, but they were dismissed at a hearing on January 12.

NPPA’s attorney also provided support to counsel for Kristyna Wentz-Graff and the Milwaukee Sentinel, and he exchanged letters with the police department and prosecutors in that case. In the original police report, Wentz-Graff was charged with standing on a roadway and obstructing the issuance of a citation. The video of the incident shows that she was about to step onto the sidewalk from the street when the police yanked her back into the street and arrested her. Police claimed that they didn’t know she was a journalist but the video showed her credential hanging around her neck and clearly visible. Prosecutors decided not to issue a citation, which is the equivalent of dismissing the original charges in Wisconsin, on December 19.

Posted in Disorderly Conduct, First Amendment, First Amendment rights, Fourth Amendment, Fourth Amendment rights, Interest of Justice, National Press Photographers Association, News Photography, Newsgathering, NPPA, NYPD, Occupy Wall Street, Occupy Wall Street Arrests, photographers, Photographers' Rights, photojournalism, Police, Recording Police, video cameras | No Comments »

NPPA Protests New Tactic in Dealing with Photographers Covering the Occupy Protests

February 21st, 2012 by Mickey Osterreicher and tagged , ,

Today, the NPPA sent another letter of protest to U.S. Parks Police Chief Teresa Chambers asking her to investigate allegations that a photographer was arrested and detained for 48 hours without being formally charged. According to press reports officers arrested Jerry Nelson, a freelance photojournalist as he covered the removal of OccupyDC protestors from McPherson Square in Washington, D.C. on February 4, 2012.

It is also alleged that although officers originally decided to charge Mr. Nelson with assault, he was never formally charged, read his rights, arraigned or allowed to make a telephone call, although he was kept “shackled and handcuffed” with “no food, no water” until his released by U.S. Marshall’s 48 hours later.

In a previous letter to the Chief, the NPPA objected to the arrest of journalists photographing and recording a Taxicab Commission hearing this past summer. After that incident, the Chief responded that their Solicitor’s Office had determined that the officers in question had acted legally.

The arrest and detention of Mr. Nelson appears to be another escalation in the ongoing tension between police and photographers covering events involving the Occupy movement.

Posted in Access, Cameras, D.C., District of Columbia, First Amendment, First Amendment rights, Fourth Amendment rights, McPherson Park, McPherson Square, National Press Photographers Association, News Photography, Newsgathering, NPPA, OccupyDC, photographers, Photographers' Rights, photojournalism, Police, U.S. Parks Police | No 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 »

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 »

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