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California Parks Department Responds to Incident with Film Crew

June 13th, 2013 by and tagged , , , , , , , , , , , , , , , , , ,

A month after being notified the California Department of Parks and Recreation has responded to a letter sent by NPPA general counsel Mickey Osterreicher regarding an incident during which parks employees detained a news crew and ordered them to delete their footage. KGTV Team 10 reporter Mitch Blacher and photojournalist Arie Thanasoulis were on public property at San Onofre State Beach on April 29, 2013 shooting footage for a story on the San Onofre Nuclear power plant when they were approached by a parks employee who accused them of trespassing, blocked their vehicle and ordered them to stop recording.

That employee, later identified as Bob Warman, then called State Parks Police Officer Ennio Rocca  who arrived and also proceeded to harass and threaten to arrest the pair for doing nothing more than recording video of the plant from an area open to the public.  Officer Rocca in turn called an unidentified employee of Southern California Edison, who arrived on the scene dressed in full SWAT gear. The three of them then ordered the crew to delete whatever video they had already shot under threat of arrest.While the trio claimed the news crew was standing on private property, the “no trespassing” sign they referred to turned out to be for “no parking,” while a fisherman and a woman walking her dog are visible in video footage in an area they alleged was “secure.” Although the news crew complied with the unreasonable demand and deleted a file containing the footage they were able to broadcast a story using video contained on a second file.

In his letter Osterreicher called the actions of the parks officers “a clear violation of the First and Fourth Amendments.” “It is one thing for officers to act when there is probable cause, Osterreicher wrote, “it is quite another to abuse that discretion in order to create a climate that infringes upon free speech under the pretext of safety and security.” He requested that the “matter be fully investigated and the employees properly disciplined if so indicated.” Osterreicher also advised the department by email of another incident that occurred on May 14, 2103 involving its officers, who detained and questioned two other photographers, JC Playford and Gerry Nance, filming near the power plant gate.

Responding to the NPPA, California Department of Parks & Recreation Chief Counsel Claire LeFlore agreed that the officers had overstepped their bounds. “In hindsight, they may have acted with an overabundance of caution while detaining the news crew,” LeFlore said, “but there was never an intention to violate anyone’s constitutional rights.” LeFlore noted that the incident came shortly after the Boston Marathon bombing, and at that “staff was on high alert for the possibility of additional terrorist actions.” Osterreicher responded to that statement in a subsequent interview, saying, “it is indeed unfortunate that well-meaning people still somehow equate an act of terrorism with photography.” “In the Boston tragedy it should be duly noted that law enforcement requested anyone who had pictures or video of the event provide them voluntarily – not delete them,” he added.

The importance of defending sensitive targets is well understood, but, as Osterreicher noted, “in any free country the balance between actual vigilance and over-zealous enforcement is delicate.” LeFlore says all personnel involved in the incident have been counseled on how to properly deal with the press “so that First Amendment rights can be protected and both the press and [parks] staff can carry out their functions with minimal interference with each other.” Officers have also been counseled that there is no legal basis for the seizure or destruction of photographs or video.

Osterreicher also sent copies of his letter to officials from Southern California Edison, the owners of the plant but received no response. In its report 10News quoted a spokeswoman for the utility, as saying, “a security officer ‘responded conservatively when he indicated to a television crew his preference that they stop filming and delete their video.'” Osterreicher also responded to that statement, “Indicating a preference that someone stop filming is a far cry from illegally ordering someone to do so under threat of arrest.” “Aside from being factually incorrect, the arrogance of Southern California Edison in their failure to respond to our letter, unrepentant statements to KGTV and behavior of their employees speaks for itself,” he concluded.

The NPPA has offered to work with the California Department of Parks and Recreation to improve their guidelines and training regarding these matters in order to avoid similar situations. The parks department says it will consider NPPA suggestions in implementing an expanded staff training program.

KGTV reporter Mitch Blacher said in an email, “It is encouraging to see the California state parks police work to remedy the oppression of constitutional rights by their officers,” adding, “As American citizens and working journalists our treatment was highly troubling.” “More questions need to be asked as to why California parks police and staff followed the direction of non-sworn private security personnel instead of the federal and state constitutions they swore an oath to uphold.”  1oNews Special Projects Executive Producer Ellen McGregor added, “As a manager behind-the-scenes, who talked for quite some time on the phone with parks police that day, Mickey’s offer train the agencies on the First and Fourth Amendments proves the NPPA’s commitment to a free press, and the journalists at KGTV are grateful.”

Posted in Access, Assault on Photographers, Attack Photographers, California, detained, 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, Recording, Regulations limiting photography, trespass | 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 »

City of Ft. Lauderdale Agrees to Uphold Right to Take Pictures in Public

June 21st, 2011 by Alicia Calzada and tagged , , , , , , , , , , , , , ,

The City of Ft. Lauderdale agreed on Monday not to interfere with photographers taking pictures near the set of the film “Rock of Ages.” At an emergency hearing in state court, the NPPA joined the South Florida Gay News and the Society of Professional Journalists as plaintiffs against the City, which had erected signs banning photography in public areas near a movie set. According to area photographer and activist Carlos Miller, at least one photographer was issued a citation for taking pictures from a public garage.

The Agreed Court Order states that the city:

“shall not prohibit or inhibit the taking of photographs at or from any public area surrounding, near or adjacent to the film set of the production of the film, “Rock of Ages. For the purposes of this order, the term “public area” shall includ any area where members of the public have a right to be, but shall not include areas that have been lawfully closed to access by members of the public.”

The movie, starring Tom Cruise and Catherine Zeta-Jones is being filmed in downtown Ft. Lauderdale, and the city had posted several signs in public areas stating that photography was strictly prohibited, even though those same areas were open to the public.

Some area photographers staged a protest on Friday drawing publicity to the illegal ban, and news organizations reported that the signs were removed, but police were still enforcing the ban.

According to the Gay South Florida News, one of the other plaintiffs in the suit, the city denied that it was interfering with the right to take pictures. However, the plaintiffs offered to provide witnesses to the contrary.

Though the injunction is in place, the plaintiffs intend to proceed with the lawsuit seeking a declaration that the city acted illegally.

A detailed report of hearing along with pictures, is available at the website www.journoterrorist.com.

NPPA will continue to provide updates as the lawsuit progresses.

The Agreed Order can be downloaded by clicking here.

Posted in Access, First Amendment, Florida, law, photographers, photojournalism, trespass | 1 Comment »

Florida Farm Bill Update

March 21st, 2011 by Alicia Calzada and tagged , , , , , , , , , , , ,

Mixed news on the Florida Farm bill (SB 1246) today. The Florida Senate Committee on Agriculture approved the bill, but before they did they passed two amendments to the language of the bill.

The first amendment changes the language of the bill so that it only applies to trespassers who enter the property, and exempts law enforcement and agents of the Department of Agriculture. The bill now only applies to someone who  “enters onto a farm or other property … produces audio or video records without the written consent of the owner or an authorized representative of the owner,”

The second amendment changes the crime from a felony to a misdemeanor.

While we still don’t like any law that targets photography, these amendments have addressed our primary concerns- that photography elevated a trespass crime to a felony, and that photography from a public place could be illegal. We will sleep better in Florida now.

As a side note, the tools available on legislative websites can be very interesting if you take a minute to poke around. Here is an analysis of the bill that specifically mentions the now-changed constitutional problems.

Posted in Access, First Amendment, Florida, Legal, photographers, photojournalism, trespass | No Comments »

Iowa Goes Too Far with Farm Bill

March 18th, 2011 by Alicia Calzada and tagged , , , , , , , , , , , , , ,

Recently we told you about a bill banning photography of farms in Florida. We have learned that there is a similar bill, prohibiting photography (among other things) of farms and crops without the permission of the owner. The Iowa bill has been compared to the Florida bill, but a quick read of the bill shows that it is far worse. To Iowa’s credit, it appears that photography from the street wouldn’t be affected, however, mere possession and distribution of undercover photography of a farm would be a crime. This elevates editors and news organizations to the status of criminals if they publish, or even possess undercover footage of farms, crops or animal facilities.

Specifically the bill states that “distribution or possession” of photographs that were illegally obtained (through violations of earlier portions of the bill). Under the proposed law, “A person is guilty of animal facility interference if the person. . . [p]ossess or distribute a record which produces an image or sound occurring at the animal facility which” is  a “reproduction of a visual or audio experience occurring at the animal facility, including but not limited to a photographic or audio medium” without the consent of the owner.

To give some perspective to the blatant unconstitutionality of this bill consider this – the only time that the Supreme Court has upheld a law that bans distribution and possession of any kind of photography it was a law against possessing and distributing child pornography. As powerful of a lobby farmers are, elevating exposes of farms to the level of child pornography is absurd and I can’t see how this would hold up. Just last year the Supreme Court ruled that a law banning possession and distribution of video of cruelty to animals was unconstitutional. See U.S. v. Stevens, 130 S.Ct. 1577 (2010). The intent of that law was to prevent animal cruelty but even it went too far (the NPPA signed an amicus brief advocating for the overturning of that bill).

The government can’t even prevent the possession and distribution of documents that put U.S. security interests at risk so it is hard to imagine how the public relations interests of farms would be considered more compelling than U.S. security interests.

Several years ago (2001), in a case called Bartnicki v. Vopper, the Supreme Court ruled that when a news organization lawfully obtained a recording, they could not be held liable for the publication of the details of the recording, even though the recording itself was illegally obtained. The Iowa law would make a news organization liable for publishing a recording, even if the news organization had nothing to do with obtaining the recording.

The NPPA has contacted lawmakers in Iowa regarding the bill.

Journalists and Photographers in Iowa should be very concerned about this bill. While it would no doubt be struck down in court, it is much easier for all of us if it never makes it to the governor’s desk.

From HF589:

Sec. 9.1(a)(2) makes it a crime to “Possess or distribute a record which produces an image or sound occurring at the animal facility” which was taken without permission of the owner.

Sec. 14.1.b makes it a crime to “Possess or distribute a record which produces an image or sound occurring at the crop operation which was” taken without permission of the owner.

Posted in Access, First Amendment, law, Legal, multimedia, photographers, photojournalism, trespass | 6 Comments »

Photographing Farms in Florida (say that 3 times fast)

March 2nd, 2011 by Alicia Calzada and tagged , , , , , , ,

A member brought it to our attention that a proposed bill in Florida would make it illegal to photograph a farm or other agricultural property without written consent of the owner. The language of the bill is worded broadly enough that a photographer making images of a farm from a public place would be committing a felony. We contacted the offices of the author of the bill and NPPA Attorney Mickey Osterreicher has received assurances from staff members that the bill is being amended to specifically relate to trespassers on private property.

We will monitor this closely, but photographers should be aware that even if the changes are made, this bill may still require written consent from the owner of any agricultural facility, whose property you are on, to allow any photography or videography and you may need to bring consent forms with you on assignments. This could put the subjects of stories in a bargaining position that interferes with objective reporting. Even with changes to clarify the public property exception, an element of the crime is photography which makes me very uncomfortable. We will continue to monitor.

Posted in First Amendment, Florida, Legal, photojournalism, trespass | 6 Comments »