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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 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 »

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 »

NPPA Letter and Outreach to Miami Beach PD Instrumental in Creation of Written Policy in Wake of Memorial Day Incident

August 6th, 2011 by Mickey Osterreicher

Earlier this week the Miami Beach Police Department issued an order affirming strong protections for the rights of the media and the general public regarding photography. The new order codifies a ban on warrantless search and seizure of journalists’ cameras, unless the journalist was involved in the crime or under arrest.

General Order 11-03 sets forth new guidelines and procedures governing the “investigation, seizure and searching of portable video and photo recording devices . . . .” This written policy came about in the aftermath of the fatal shooting of Raymond Herisse by Miami Beach police on Memorial Day 2011. That incident was recorded by a citizen, Narces Benoit, on his cell phone and later broadcast by CNN (and viewed on YouTube) despite alleged attempts by police officers to destroy the phone and confiscate the recording. Police also seized the camera of  a WPLG photojournalist ( at 2 minutes into video).  

After being made aware of the situation NPPA issued a letter to Miami Beach Police Chief, Carlos Noriega, objecting to the actions of his officers in violation of the Fourth Amendment protection against unreasonable search and seizure. The letter also offered “to help develop reasonable and workable policies and practices in order to avoid similar situations.”

Shortly thereafter Sergeant Jed Burger with the Technical Services Division, Professional Standards Unit of the Miami Beach Police Department contacted NPPA.  Sgt. Burger requested information, policies, procedures and recommendations from NPPA in order to help with the “development of reasonable and workable policies and practices concerning the preservation and collection of video and photographs between photo journalists, civilians and law enforcement personnel.”  The dergeant was sent copies of the Amtrak Police General Order which was drafted with NPPA input as well as copies of the NYPD Patrol Guide and General Orders dealing with these issues. 

Less than 2 months later, in a five page document, the Miami Beach Police recognized “that the taking of photographs and/or videos by private citizens and media personnel is permitted within areas open to general public access and occupancy.” The new policy also states at the outset that “a civilian may video record or photograph a police employee’s activities as long as they: remain at a reasonable distance; do not interfere with the employee’s [police officer’s] duties and responsibilities; and do not create a safety concern for the employee [police officer], person detained, or other persons.” While those three exceptions might create “wiggle-room” for some officers to still interfere with someone taking photos/videos – the supervisory requirements in any such incident will hopefully guarantee better adherence to the guidelines. 

Under the guidelines, the seizure of cameras or media storage (such as video tapes or compact flash cards) without the consent of the photographer, is only allowed when an officer has probable cause to believe that 1) there is evidence of a criminal act on the device and 2) there is so-called “exigent circumstances” such as a likelihood of “the imminent destruction of evidence”. The two requirements that must be satisfied for this exigency to exist are: “probable cause to believe destructible evidence exists” and “reason to believe the evidence might be destroyed if they delay taking action until a subpoena/search warrant is issued.” There also must be supervisory notification and oversight in all such (consensual and non-consensual) situations. Even stricter guidelines come into place when a member of the media is involved.

The policy also distinguishes between sworn and non-sworn employees (“who are prohibited from seizing a person’s portable video and photo recording devices”) and also between consensual and non-consensual search and seizure of such equipment and devices. Following closely on the language of Amtrak and NYPD prohibitions, Miami Beach personnel “shall not order or participate in the destruction of portable video and photo recording devices” or “in the erasure, deletion or destruction of digital, analog or film evidence.” The policy states that “employees shall not impede a person’s right to photograph or video record an event unless that person’s actions: endanger the safety of the public, employees, or property; interfere with an active crime scene; or create a reasonable safety concern.” Once again, these exceptions might be seen as too vague but as with any such rule – police will always be allowed some discretion. 

It is important to note that the policy language pertaining to media and non-media photographers and videographers differs slightly in that for non-media “no search of the device shall be conducted until a subpoena/search warrant is issued unless there is reason to believe that the immediate search of such materials is necessary to prevent the death of, or serious bodily injury to, a human being.” Whereas “sworn employees shall not seize portable video and photo recording devices from media personnel unless they are under arrest or otherwise directly involved in the criminal act.” Additionally, “a warrantless search of portable video and/or photo recording devices seized incident to the direct involvement or arrest of media personnel is prohibited unless there is reason to believe that the immediate search of such materials is necessary to prevent the death of, or serious bodily injury to, a human being” (emphasis added). 

Finally, the policy directs employees to the statutory limitations and liability pursuant to the Privacy Protection Act of 1980, 42 U.S.C. Section 2000aa, whereby “it is unlawful for a sworn officer or employee, in connection with an investigation or prosecution of a criminal offense, to search for or seize the work product of a media photographer/videographer, unless: there is reason to believe that the immediate seizure of such materials is necessary to prevent the death of, or serious bodily injury to, a human being; or there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate.” The policy also puts in place the right to sue department employees who violates the policy, noting that “sworn officers and employees may be held personally liable in an action for civil damages for violation of federal statute, 42 U.S.C. Section 2000aa-6.” and “a search or seizure of the work product is prohibited when the offense is merely the withholding of such material.”

Under the federal statute, “notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication . . .” 42 U.S.C. § 2000aa(a).

Accordingly, the law authorizes civil actions by aggrieved persons for violations of the Act and provides for the recovery of “actual damages but not less than liquidated damages of $1,000, and such reasonable attorneys’ fees and other litigation costs reasonably incurred as the court, in its discretion, may award.” 

While NPPA is pleased to see that MBPD has issued new guidelines dealing with photography and has said so in a follow-up letter to the chief; the real challenge will be in the ongoing education and training of its officers. As today’s letter also states it is  “critical that when violations of this policy occur – they are quickly and thoroughly investigated by the department –and employee(s) found to have violated departmental policy be properly disciplined and criminally charged if necessary.”

Posted in Access, Exigent Circumstances, First Amendment, Florida, Fourth Amendment, law, Legal, News Photography, photographers, Photographers' Rights, photojournalism, Police, Public Photography, Search and Seizure | No Comments »