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Journalism Groups Protest Prosecution of Photojournalist

March 27th, 2012 by Mickey Osterreicher

Today the Northern California Chapter of the Society of Professional Journalists sent a letter to the Santa Cruz DA stating they are “deeply concerned by your office’s decision to prosecute Bradley Stuart Allen, a longtime San Francisco Bay Area Independent Media Center (Indybay) contributor, as well as by assertions from your office that: (1) a reporter may be prosecuted for conspiracy simply by providing coverage of a newsworthy event and (2) Indybay is not a bona fide news organization.”  Mr. Allen was charged with felony conspiracy along with vandalism and tresspassing for his coverage of an “Occupy” demonstration late last year.  

On March 12, 2012 the NPPA along with the Reporters Committee for Freedom of the Press sent a letter brief to the court seeking  that the charges against him be dismissed in the interest of justice. In the alternative the letter asked for the court to exercise leniency in addressing those offenses. The groups also asserted that because newsgathering is constitutionally protected, the court should carefully weigh the public interest in obtaining information against arguably lesser government interests.

After a hearing last week the judge dismissed the felony vandalism charge, finding that  prosecutors did not meet their burden of presenting sufficient evidence but refused to dismiss  the felony conspiracy and two misdemeanor trespassing charges against him.

The letter sent today by SPJ concluded by saying, “it is wholly inappropriate, and indeed unconstitutional, for a public prosecutor to single out representatives of a disfavored news organization for prosecution. That a photojournalist from The Santa Cruz Sentinel was able to enter the occupied building and report from it without also being subjected to charges brings this abuse into even sharper relief” and strongly urged the DA “to reconsider whether to proceed with this aggressive and dangerous targeting of the independent press.”

Allen’s next court appearance is scheduled for March 29.

Posted in Bradley Allen, condemned, First Amendment, First Amendment rights, law, Legal, National Press Photographers Association, News Photography, Newsgathering, NPPA, Occupy Wall Street, Occupy Wall Street Arrests, photographers, Photographers' Rights, photojournalism, Reporters Committee for Freedom of the Press, Santa Cruz, Vandalism | No 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 »

Judge Dismisses All Charges Against R.I.T. Student Photojournalist Covering Occupy Rochester Protest

January 12th, 2012 by Mickey Osterreicher

Inside an almost packed courtroom, Supervising City Court Judge, the Hon. Teresa D. Johnson issued her Decision in the People v Acuff, et al.  All charges against 28 defendants were dismissed without prejudice.  Those defendants, except for one, had been part of an Occupy Rochester protest. The lone journalist was my client, 20 year-old R.I.T. photojournalism student Jonathan Foster. Mr. Foster is also a student member of the National Press Photographers Association (NPPA) which is why I had been asked to represent him.

Mr. Foster was charged with trespass (New York State CPL § 140.05) and for violating the Rochester Municipal Code (§79 -2- c. Remaining after park closing hours) on the night of October 29, 2011. From videotape evidence and a witness statement, it appears that Mr. Foster was on a public sidewalk at the time of his arrest although the accusatory instrument, based upon information and belief, stated he was in Washington Square Park shortly after its 11.p.m. closing time. His assigned story and photos were published 5 days later by the weekly R.I.T. Reporter in print and online at http://reportermag.com/article/11-04-2011/occupy-rochester-leads-to-arrests.

Before we ever got to court I had written letters to the Rochester Police Department, the District Attorney and the Mayor. All requested the same thing – dismiss the charges against Jonathan as had been done in so many other cities around the country where journalists were caught up and arrested along with protesters. All the letters were ignored.

In the letters I argued (to no avail) “that although not unlimited, the media enjoys a broad right under the First Amendment to photograph in public places such as streets and sidewalks. These rights are rooted in the First Amendment’s strong protection of speech within ‘public forums,’ the most commonly recognized examples of which include streets, sidewalks, and public parks.”

I was surprised that the police and prosecutors were unmoved. Months before this incident, I had met with Rochester Police Chief, James M. Sheppard, in order to help his department draft improved police-press guidelines after Emily Good (also one of the defendants in this case) had been arrested in June and charged with obstruction of governmental administration as she videotaped a traffic stop from the front lawn of her house. Her charges were dropped but not until the video had gone viral and the case became nationally publicized.

Jonathan and I had been in court together twice before. On November 17, 2011, I appeared on his behalf and filed a motion to dismiss. On that occasion he came with his parents who had driven five hours from Pennsylvania to support their son. The ADA offered and ACD (Adjournment Contemplating Dismissal). That would have meant that after 6 months and a few hours of community service the charges would have been automatically dismissed. We rejected that offer because Jonathan had already performed a community service by taking an publishing the photos but more importantly, since the OWS movement is unlikely to go away anytime soon, I worried that Jonathan would find himself back covering another demonstration, with its risk of another arrest. If that happened these original charges could be reinstated along with the new ones. It’s what’s known as getting jammed-up.

Instead I filed a 21 page motion to dismiss, arguing first that the information forming the basis for the arrest was defective in that “every element of the offense charged and the defendant’s commission thereof must be established by ‘non-hearsay allegations of the factual part of the information and/or of any supporting depositions.” Almost two months later the court agreed, finding that Chief Sheppard (did I mention that he was there that night, made a number of arrests, had his picture taken by Jonathan and signed the accusatory instrument against all the defendants?)  “does not sufficiently allege non-hearsay factual allegations establishing every element of trespass.”

The dismissal motion also argued that the charges against Mr. Foster should be dismissed “in the furtherance of justice.” Pursuant to CPL §170.40, “an accusatory instrument . . . may be dismissed in the interest of justice . . . when, even though there may be no basis for dismissal as a matter of law . . . [where] such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice.” In Jonathan’s case there were many such factors, the first of which was that that at the time of the alleged incident he was not there to protest but as a journalist covering a story of public interest. The United States Constitution has long protected the right to a free and robust press. The ability to gather and disseminate news is abridged when the government, under color of law, interferes with and arrests journalists reporting on issues of public concern.

Another factor to be considered in a motion to dismiss in the interest of justice is the “character and condition of the defendant.” Here Jonathan had much to commend him. He is in his junior year with a 3.43 GPA, attending R.I.T. on a presidential scholarship and a member of the honors program. He is an Eagle Scout. He has never been in trouble with the law, has never been arrested or charged with any crime before the instant matter. His first pictures were published in the Reporter Magazine in October 2009 and he has worked for the Reporter Magazine regularly since October 2010. In October 2011 he became a staff reporter/photographer.

Additionally, Mr. Foster was wearing (go to link to see a photo of his arrest) a sky blue shirt from his school magazine over his raincoat with large block letters spelling “REPORTER” on the front and he identified himself as such at the time of his arrest. He was also taking pictures with a professional Nikon camera, lens and flash unit, whereby any reasonable person should have observed and known that he was a journalist covering a news story.

In the meantime the Rochester Democrat & Chronicle printed an editorial on November 23, 2011 The headline read “Uphold First Amendment rights” and went on to state that Jonathan’s “prosecution could have a chilling effect on First Amendment rights to freedom of the press. District Attorney Mike Green should reconsider.” He didn’t.

In another appearance on December 14, 2011, I made those arguments orally along with more than a dozen other attorneys representing various defendants. The judge listened and then reserved her decision. Until Today.

But today the Judge never reached those issues and denied dismissal on those grounds because then she would have had to dismiss “with prejudice,” which, means that Monroe County would be precluded from re-filing the charges. Remember the second sentence of this story? “All charges against 28 defendants were dismissed without prejudice.” Pursuant to today’s decision, that means should police or prosecutors decide to re-file any of these charges the “complaints and supporting depositions [ ] must establish non-hearsay allegations with respect to each individual defendant.” (emphasis added)

As a photojournalism student Jonathan says that this incident proved a valuable if not difficult lesson for someone just starting out. Let’s hope it is a “teachable moment” for the police, prosecutors and the courts as well.

 

Posted in First Amendment, First Amendment rights, Interest of Justice, law, Legal, Motion to Dismiss, National Press Photographers Association, News Photography, Newsgathering, NPPA, Occupy Rochester, Occupy Wall Street, photographers, Photographers' Rights, photojournalism, Police, Public Forum, Public Photography, R.I.T., Rochester Police, Student, students, trespass, Without Prejudice | No Comments »

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