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Wednesday, August 31, 2011

Video recording police: First Circuit says it's a First Amendment right

Victory for the right to take videos of the police:  On August 26, 2011, the U.S. Court of Appeals for the First Circuit, in Boston, held that people have a clear First Amendment right to make video recordings of police making arrests in public places. The court's opinion (in .pdf format) is here. The website Gizmodo has an account of the dispute here.

The caption of the case is Glik v. Cunniffe.  Glik is himself a lawyer. According to his complaint, he saw three Boston police officers arresting a young man in the middle of Boston Common -- as public a public place as you can find. Glik thought that the police punched the man and were using excessive force. So, standing about 10 feet away, he began making a video and audio recording of the event with his cellphone. The police reacted by putting him in cuffs, too, and then pressing various charges including an alleged violation of a Massachusetts wiretapping statute.  All the charges were dismissed, and Glik then sued Cunniffe and the other arresting officers under federal civil rights law. The Court held that Glik was exercising his clearly established First Amendment rights in making the recording and that the arrest violated the Fourth Amendment.  On the basis of a number of Supreme Court decisions, the First Circuit found that the right to gather information by otherwise lawful means is  a clearly established the First Amendment right. The First Circuit itself and other federal courts had recognized this right in earlier cases involving the recording of public officials performing (or maybe misperforming) their duties in public. The First Circuit said:

"Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting "the free discussion of governmental affairs." Mills v. Alabama, 384 U.S. 214, 218 (1966). Moreover, as the Court has noted, "[f]reedom of expression has particular significance with respect to government because '[i]t is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.'" First Nat'l Bank, 435 U.S. at 777 n.11 (alteration in original) (quoting Thomas Emerson, Toward a General Theory of the First Amendment 9 (1966)). This is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties. Cf. Gentile v. State Bar of Nev., 501 U.S. 1030, 1035-36 (1991) (observing that "[t]he public has an interest in [the] responsible exercise" of the discretion granted police and prosecutors). Ensuring the public's right to gather information about their officials not only aids in the uncovering of abuses, see id. at 1034-35 (recognizing a core First Amendment interest in "the dissemination of information relating to alleged governmental misconduct"), but also may have a salutary effect on the functioning of government more generally, see Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8 (1986) (noting that "many governmental processes operate best under public scrutiny")."


There are several other important points and wrinkles in the opinion. Some probably will interest only lawyers, but these, I think, should be important to everyone:  First, the court said that it did not matter that Glik was a private citizen and not a professional journalist. He still had this First Amendment right. In this connection, the court recognized that modern electronic devices can allow anyone to decide, even on the spur of the moment, to become a citizen-reporter on a blog or some other way.  (The court didn't specifically mention YouTube, but no doubt it was the sort of thing that they had in mind.) Second, the court made no distinction between audio and video recording (Glik had done both) but seemed to give equal First Amendment protection to each. The court also did note that the officers, on the facts alleged, could not have reasonably believed that Glik was violating the state wiretapping law, because it prohibited only "secret" recordings, and Glik was recording in plain view of the officers. That's why they arrested him.

In the routinely cautious way that courts almost always act, the First Circuit said that on other facts -- maybe when recording the police actually interfered with their work in some way beyond the mere fact of the recording itself -- the outcome might be different.

Police vs. photographers (still more)

A report in the Long Beach Post shows that the police there have photographers directly in their sights. If I read this correctly - and I think I do - then Long Beach police are instructed that it is now within their power to detain any photographer that they catch taking pictures in a public place, when the individual officer thinks that the pictures lack an "apparent esthetic value."

The mind boggles. Along with all their other weighty responsibilities, the Long Beach police now must serve as art critics? What training will they receive to perform this new function?  A semester-long course on the history of photography and its place in art history in general? And so that photographers have fair notice -- in order to avoid getting pinched for what the police think is bad art -- will the police then publish lists of what is acceptable and what is not?  Will representational photography in the romantic tradition be allowed? But anything edgier or more abstract prohibited?  So that anyone trying that kind of photography -- never mind the long list of celebrated photographers who have specialized in it over the years -- should expect an arrest? I expect legal challenges, sooner rather than later.

Police Chief Jim McDonnell was apparently trying to be helpful with this clarification, that photographers may be detained when they are observed "not engaging in 'regular tourist behavior.'" So it seems that Long Beach resident Sander Wolff, the individual subject of the article, got out of line -- his conduct diverged from "regular tourist behavior" -- when he took pictures of a refinery. The article shows one of Mr. Wolff's photos that got him in trouble. It's the kind of photograph of an industrial scene that amateur and professional photographers have been taking for over a century. It would be easy to find similar photographs at any major art gallery. Maybe a "regular tourist" would give the scene a pass, but so far as I know, this kind of photography never before has been treated as criminally suspicious. Not in the United States of America at any rate, the home of the free.

Friday, July 29, 2011

A Washington Post editorial of July 28, 2011, on the Justin Wolfe case:

A deserved rebuke in Prince William murder case

By Editorial, Published: July 28

PAUL B. EBERT has earned a reputation as a tough but fair prosecutor over his four- decade career as Prince William County commonwealth’s attorney. But something apparently went terribly wrong with Mr. Ebert’s handling of the case of Justin Michael Wolfe.
Mr. Wolfe is an admitted marijuana dealer in Northern Virginia who was sentenced to death in 2002 for ordering the murder of a drug associate. In a detailed, 57-page opinion handed down on July 12, Judge Raymond A. Jackson of the U.S. District Court for the Eastern District of Virginia excoriated Mr. Ebert and his office for multiple infractions that he says prevented Mr. Wolfe from refuting the murder charges.
Judge Jackson noted that Mr. Ebert and his office withheld from the defense information about others who may have had motive to target the victim. Mr. Ebert and his colleagues also brought together prosecution witnesses and allowed them to smooth over inconsistencies in their testimony. The prosecutors failed on multiple occasions to live up to their obligations to disclose to the defense that government witnesses had contradicted each other or had changed their stories.
These failures were discovered only after Mr. Wolfe’s lawyers from King & Spalding, the University of Virginia’s Innocence Project Clinic and the Virginia Capital Representation Resources Center persuaded a court to force Mr. Ebert and his office to turn over all of their files.
The actions by Mr. Ebert and his office were so egregious that Judge Jackson threw out the murder conviction and death sentence against Mr. Wolfe. And he concluded that Mr. Ebert and a top deputy, Richard A. Conway, violated Virginia legal ethics rules that require prosecutors to “make timely disclosure” of evidence “that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment.”
During a hearing before Judge Jackson, Mr. Ebert was asked why his office did not have open-file discovery, which requires prosecutors to turn over to the defense all of the evidence gathered during an investigation. “I have found in the past when you have information that is given to certain counsel and certain defendants, they are able to fabricate a defense around what is provided,” Mr. Ebert responded.
Fabricate? The judge in this instance rightly took Mr. Ebert to task. “Essentially, in an effort to ensure that no defense would be ‘fabricated,’ [Mr. Ebert and Mr. Conway’s] actions served to deprive [Mr. Wolfe] of any substantive defense in a case where his life would rest on the jury’s verdict,” Judge Jackson wrote. “The Court finds these actions not only unconstitutional in regards to due process, but abhorrent to the judicial process.” The Virginia State Bar, which polices lawyers in the state, should determine whether Mr. Ebert and Mr. Conway committed violations that require disciplinary action.
Virginia plans to appeal Judge Jackson’s ruling. But rather than merely fight an adverse decision, Attorney General Ken Cuccinelli II should assess whether there is a problem with how Mr. Ebert and his office apply the legally mandated requirement to turn over exculpatory material.

Wednesday, July 20, 2011

Suppressed evidence (cont.)

Again on the Casey Anthony trial: I find this amazing and shocking, and I believe that it should be shocking, whatever one thinks of the outcome of the trial. Innocent or guilty, Anthony was entitled to a fair trial. She was entitled to have the prosecution follow the rules that are necessary for a fair trial.

Yet according to a software engineer who worked with the prosecution, it did not. Prosecutors tried to convince the jury that Anthony murdered her child with chloroform and in support of this theory presented evidence that she visited a website about chloroform 84 times. Yet the software engineer who so testified now says that he learned during the trial that his earlier conclusion was in error and that Anthony had visited that site only once (and also that it was an innocent-seeming site with historical information regarding chloroform in the 1800s). He says that he promptly notified the prosecutors and Florida law enforcement agents. Yet the jury was never informed of this potentially important information.

UPDATE: It's getting more confusing. That software engineer, John Bradley, now asserts that he never accused Florida authorities of any impropriety.   Yet he seems not to be retracting his factual assertion, which he had made on his own website, that he notified those authorities that Casey searched for "chloroform" just once, not 84 times as the jury was told. He has, however, taken the assertions off the website.

Suppressed evidence

You know a man can't help but feel bad
When he's doing time for someone else...

-- Lightnin' Hopkins, "Penitentiary Blues"

It has been the law of the land since the 1963 Supreme Court case of Brady v. Maryland that the prosecution in a criminal case must turn over to the defense evidence in the government's possession that is favorable to the defendant. (A 2004 report of the Federal Judicial Center provides an overview of the meaning of Brady as it has been interpreted over time as well as a survey of rules in federal and state courts across the U.S. regarding prosecutors' duties under Brady.)

Yet now, nearly half a century later, favorable evidence still is sometimes suppressed, even in the most serious cases when the defendant may be sentenced to death if he/she is convicted. It still happens, even years after a defendant's conviction at trial, that powerfully exculpatory evidence turns up -- which the government knew about all the time but never disclosed. Some of these discoveries occur by accident, by blind luck. Sometimes they happen only if determined lawyers and investigators can overcome stubborn, unyielding resistance by the prosecution. I think that you have to wonder:  How many defendants have been convicted despite powerfully exculpatory evidence that was never disclosed to them and that never sees the light of day?

No one who has looked seriously and honestly at the issue can doubt the fact that innocent people have been found guilty -- and some of them have been sentenced to die -- because of the government's suppression of evidence that could have shown that they were innocent.

I want to consider in a series of blog posts two recent, important cases regarding different aspects of Brady.  One is a case that the Supreme Court decided in its most recent term, in March 2011, Connick v. Thompson. John Thompson was convicted of murder and sentenced to die for a killing in New Orleans. He spent 18 years in prison, over a decade of that time in solitary conditions on death row, and came very close to execution. Then, by what seems like a fortuity -- an accident -- a piece of good luck -- an investigator working for Thompson and the lawyers then representing him discovered what had been hiding in the prosecutors' files for all those years, a mass of evidence, including blood evidence, that Thompson was innocent and that the principal witness that the prosecution had used to convict him was himself the murderer. Even after the uncovering of this evidence, New Orleans prosecutors brought him to trial again, but this time it took the jury little more than a half an hour to find Thompson not guilty.

Thompson then sued under federal civil rights law for damages for what amounted to the destruction of his life because of the violation of his constitutional rights. The case from the beginning to its end at the Supreme Court shows the tricky and complex ways that our civil rights laws work and, sometimes, fail to work.

The second case, Wolfe v. Clarke, involves Justin M. Wolfe, who like Thompson was convicted of murder and sentenced to die, in Virginia.  On July 12, 2011, a U.S. District Judge in Norfolk granted Wolfe's petition for a writ of habeas corpus.  The judge ruled that Wolfe's conviction and sentence were unconstitutional because the prosecutor had withheld favorable evidence, in violation of Brady, and also because the prosecution had knowingly presented false testimony against him in violation of the closely related doctrine that the Supreme Court established in a 1972 case, Giglio v. United States.

As in Thompson's first trial, when he was convicted of murder, the principal witness against Wolfe was himself the actual killer. The witness, Owen Barber, admitted this fact, but he then went on to testify that he committed the murder on Wolfe's instructions.

It turned out that there was substantial evidence, never revealed to the defense, that Barber was lying; that the police planted the suggestion to Barber that he had been working for Wolfe; that they threatened Barber with a death sentence unless he blamed Wolfe; that the prosecution had gone to great lengths to coordinate and shape the testimony of its witnesses in order to convict Wolfe; and that Barber in fact had admitted to killing the victim alone.

The case is noteworthy, as recounted in the judge's opinion, for the lengths to which the prosecution seems to have gone to sell a false story to the jury about the murder. It is also noteworthy for how the facts eventually got out.  Wolfe was fortunate in receiving very effective and determined lawyering from a team of attorneys from the firm of King & Spalding and the Virginia Capital Representation Resource Center. They obtained for Wolfe what is a rarity these days in federal habeas corpus cases challenging convictions in state court:  a fresh evidentiary hearing in federal court. At that hearing, Wolfe's attorneys were able to call and question witnesses in order to show how Wolfe's conviction had been obtained. It was that evidence that persuaded the federal judge that Wolfe had received a fundamentally unfair trial in state court.

Wolfe's case is not yet over. The prosecutors can and likely will appeal to the U.S. Court of Appeals for the Fourth Circuit.

Incidentally, for reasons that I do not know, the District Court's opinion was not available when I last checked on the court's website, as it should have been.  Wolfe's attorneys very kindly provided it to me.

Tuesday, July 19, 2011

The Casey Anthony case and forensic evidence problems

    I’m not going to write any analysis of my own of the Casey Anthony case or its controversial outcome. Plenty has been written already.

    But perhaps good can come of it if it brings attention to the issue of forensic evidence used in criminal prosecutions in sad and terrible cases involving the death of a child or infant.  Forensic evidence, and sometimes just medical evidence, frequently has been the only evidence the prosecution has had to convict someone of homicide in such a case.  Medical evidence frequently has been all there was to show whether a child’s death was caused by accident or disease, or by someone’s criminal conduct.

    The investigative journalism website ProPublica recently worked on a joint project with PBS “Frontline” and National Public Radio to investigate the quality and validity of medical evidence in cases like that to produce The Child Cases, their joint report.  ProPublica said that “[o]ur reporting showed that these cases have been repeatedly mishandled by medical examiners and coroners, sometimes resulting in innocent people being wrongly accused. In the Anthony case, it's unknown if flawed forensic evidence led to a false accusation or made it impossible to convict a guilty person of a horrible crime.”

    The Child Cases report “identified nearly two dozen cases in the U.S. and Canada in which people have been accused of killing children based on flawed or biased work by forensic pathologists and then later cleared.”  They are summarized on that web page.

    Some recurring problems were doctors who performed autopsies and testified in court but lacked specialized training in determining the cause of a child’s death or who failed to keep current on the relevant medical research; biased doctors who saw themselves as part of the prosecution team and looked just for evidence of guilt rather than for the truth; doctors who simply ignored evidence that contradicted their conclusions; and medical theories that were subsequently shown to be false or unscientific.  An example: “Shaken baby syndrome,” brain damage that potentially leads to death caused by violent shaking.  There may be no external signs of trauma.  There are cases where doctors have diagnosed the syndrome by finding just three symptoms:  subdural hemorrhaging (or bleeding under a layer of tissue surrounding the brain); retinal hemorrhaging (visible bleeding in the retinas of the eyes); and swelling around the brain.  And on this evidence alone, people have been convicted of homicide including murder in the death of a child.  Yet it is increasingly clear that other causes – including blood disorders and vitamin deficiencies – can mimic or duplicate exactly these symptoms.

    The PBS “Frontline” web page, with videos of the broadcast, is here: National Public Radio’s reports can be heard here - - here - - and here -

    People have been freed after being convicted on faulty medical evidence.  But, without doubt, there are more people still who have been unjustly convicted.  With aggressive and effective legal representation and fresh evidence from qualified experts, those unjust convictions may be challenged.

Friday, June 24, 2011

Some more on recording police actions

In at least three states, courts have addressed legal issues regarding people's rights to record the actions of police in public spaces. None, however, explicitly addressed the issue of making a visual record of the police, whether by still photography or video recording.  All involved wiretap-related statutes making it a crime to record conversations, at least in some circumstances, unless both or all parties consented; the consent of one person (usually the person making the recording) was not enough.

1.  Maryland - On September 27, 2010, Maryland Circuit Court Judge Emory A. Pitt, Jr., dismissed charges against Anthony Graber, the motorcyclist who was arrested and had his home raided by the Maryland State Police after he posted a video on YouTube showing a plain-clothes State Trooper draw his weapon on Graber after pulling Graber over for a traffic stop. In a conscientiously researched and analyzed opinion, Judge Pitt held that the Maryland statute did not apply to this situation because the trooper could have had no reasonable expectation that his words with Graber were private.  In the analysis of the statute, the opinion considered the kinds of values that the First Amendment protects, but given his reading of the statute, Judge Pitt did not need to reach any constitutional issues.

2.  Illinois - The Illinois ACLU sued in federal court in a case captioned American Civil Liberties Union of Illinois v. Alvarez to obtain an injunction against enforcement of the Illinois Eavesdropping Act.  The history of the act is interesting. After the Illinois courts had held that it did not apply to a police-citizen encounter during traffic stops -- on grounds similar to those in Judge Pitt's Graber opinion -- the Illinois legislature amended the act for the specific purpose of reversing that decision, making the statute apply even when no party to a conversation had a reasonable expectation of privacy.  There is no doubt that an aim of the amendment was to shield police from being recorded by others during encounters with civilians, including but not limited to traffic stops.  To underscore the point, the legislature enacted an enhanced penalty -- of a sentence of four to fifteen years -- that applied only when the defendant had recorded the police.

The ACLU sued on First Amendment grounds, asserting that the statute inhibited it from monitoring and documenting police conduct by audio-visual recording during public demonstrations and the like.  The district court dismissed the ACLU's complaint on what were formally standing grounds, but the court found that the ACLU lacked standing because it failed to allege a threat of constitutional injury.  In other words, the ultimate basis for dismissal was the district court's conclusion that the statute did not violate the First Amendment.  It is possibly significant that the court pointed out that the ACLU asserted a right to record conversation that, though taking place in public, involve only other persons and not the person making the recording.  So in at least some instances, the ACLU asserted the right to record publicly held conversations without the consent of any of the participants. The ACLU has appealed to the Seventh Circuit.  It filed its brief on April 15, 2011.

3.  Massachusetts - Contrary to the Maryland decision, the Supreme Judicial Court of Massachusetts has held that a comparable statute there could support a valid prosecution of a motorist for recording his encounter with the police during a stop, in its 2001 decision in  Commonwealth v. Hyde, but the case does not deal directly with constitutional issues. There is a dissent, and it would read the statute more narrowly in view of the public interest in exposing and documenting official misconduct.

Tuesday, June 21, 2011

More on the police, photos, and videos

I report these but mostly leave the facts to speak for themselves. First are two instances when law enforcement personnel thought people shouldn't take pictures of courthouses.

In the first, a photographer was taking pictures of traffic driving by in the street, but members of the L.A. County Sheriff's Department wrongly thought he was taking pictures of the courthouse across the street and thought -- apparently for that reason alone -- that they could detain him.

In the second, just a few days ago, a photographer was taking pictures of a U.S. courthouse in Dayton, Ohio, when a Federal Protective Service officer tried to stop him, apparently under the impression that there was something wrong or even criminal about that photography. The photographer, but not the FPS officer, was well aware of the FPS memo affirming people's right to photograph the exteriors of the federal buildings. Not even the memo itself seemed to have much effect on the officer, but a supervising officer whom he reached by radio did. The supervisor seemed to instruct the officer to let the photographer go and just leave him alone, and so the FPS officer did. According to the photographer's account, the officer didn't seem very happy with this outcome.

I find the issues raised here more disturbing:

This page links to the episode of June 15, 2011, of a National Public Radio public affairs program, On Point, concerning photographing and taking videos of the police in action, and the reactions of some police to being photographed or videoed while in action. People with different points of view all get the chance to express themselves, including UCLA law professor Eugene Volokh. The program is about 45 minutes long but worth hearing (via streaming audio or .mp3 download).

More and more people routinely carry miniature cameras and video recorders especially when attached to iPhones and other smart phones. So, more and more, the police are exposed to having their conduct recorded. At the same time, the police seem more and more to be pushing back aggressively.

Photograph of HUD building

A recent photograph of the Department of Housing and Urban Development building in downtown Washington, D.C.  Notice the building guard in the background near the lower left-hand corner. He yelled at the photographer and told him to stop taking pictures because -- the guard claimed falsely -- it was illegal to photograph a federal building.

Photographers' rights and police harrassment

    A personal note: I find it surprising and not a little disturbing that our general right to use our cameras freely in public places throughout America seems to be coming into question and sometimes under actual assault.  I have been around long enough to remember the occasional story coming out of the bad, old totalitarian Soviet Union involving a Western tourist doing what we Americans took for granted, namely taking travel pictures wherever we go. From time to time, such tourists found themselves suddenly descended upon by police or, worse, Soviet security agents, for detention, questioning, and even arrest. Their cameras were seized and their film confiscated. The reason? Because they’d innocently pointed their cameras at something – maybe some unmarked, nondescript building, maybe even the sky if an airplane was flying past – that was deemed to be a sensitive matter of state security. So what if the tourist had no possible way of predicting that photographing there was not to be allowed?  The operating rule seemed to be that that which is not expressly permitted is strictly prohibited.  We took pride that it wasn’t like that in our own open society back in America.

    There are signs now of pressures that are edging us in the direction of the Soviet way.  9/11 of course ratcheted up anxieties about security, but do those anxieties actually justify sacrificing basic freedoms?  Moreover, legitimate security concerns – within a society that remains fundamentally free and open  – are one thing.  But to judge from reports and complaints that have been popping up frequently, some elements within law enforcement are increasingly aggressive in trying to stop people from taking photographs or videos from public places of things that are plainly out in the open.  It has sometimes reached absurdities worthy of Kafka.  In 2009, “The Colbert Report” ran a segment about a photographer at Penn Station in New York City who was stopped by Amtrak police, held, questioned, and ultimately arrested for taking a picture of an Amtrak train.  He took the picture to enter in a contest that Amtrak was running for pictures that people took of Amtrak trains.—amtrak-photographer

    This general issue – photographing and also videographing in public places – ought to have clear answers so that people with cameras and video equipment can be sure about what is allowed, and broadly speaking, in my opinion, the law should respect people’s freedom.  In the vast majority of cases, police should leave people alone.  But the issue has several facets, and the answers aren’t always clear.  Here are some situations that seem to recur.

    1.  Photographing the exterior of a federal building from a public place.  Washington, D.C., is of course full of federal buildings including office buildings that house various federal departments and agencies.  No one to my knowledge has ever found any law or regulation that purports to restrict a photographer’s right to take pictures of the exteriors of these buildings from, for example, a public space across the street or a public sidewalk in front.  Yet a number of times within recent months, building guards have emerged and purported to order photographers to stop on the ground – a false one – that it’s illegal to photograph any federal building or that it became illegal at 9/11.  It is worth knowing that such guards typically are employed by private contractors and have no actual law enforcement authority including the authority to make an arrest, especially off the grounds of the property they are protecting.  When asked, they will usually acknowledge that fact and admit that they have no power to enforce their “orders.”  What they typically will do is threaten to summon actual police, often the Federal Protective Service, a police force under the Department of Homeland Security with responsibilities for protection of federal buildings.  So photographers should know this: As a result of negotiations over this general issue with the New York Civil Liberties Union, FPS explicitly recognized people’s right to photograph federal buildings without police interference.  An FPS “Information Bulletin” of August 2, 2010, HQ-IB-012-2020, instructs FPS officers: “Remember that the public has the right to photograph the exterior of federal facilities from publicly accessible spaces such as streets, sidewalks, parks, and plazas.”  It is worth noting that the memo goes on to advise FPS officers that they may speak with a photographer (in a so-called Field Interview, or FI) if they deem it warranted – provided that the conversation is not coercive and does not involve detention of the photographer. This is consistent with the law, which – unsurprisingly – does generally allow police to engage in voluntary conversations with people on the street. But anything more – anything coercive – requires specific, objectively suspicious facts or probable cause to arrest.  And in the course of a voluntary conversation, an officer may not demand to take a camera, or its memory card or film.  The FPA memo can be found various places on the web including here - .

    Of course, anyone exercising the right to photograph federal buildings should use common sense and expect a challenge – at the least – if attempting to photograph when there could be more specific security concerns, for example, at a military facility or nuclear station. Or when trying to photograph into Area 51.

    2.  Despite the experience of the photographer featured on “The Colbert Report,” people do have a general right to photograph buses, trains, and the like that are out in the public.  Nonetheless, a photographer – who was a train buff with a professional interest in train systems – recently experienced harassment, bullying, and worse from Maryland Transit Authority police when he photographed a light rail train that ran on tracks on Baltimore city streets.  He succeeded in recording a video of his encounter with the police, which he posted on YouTube – .  His videoing of the encounter further provoked the police because of a Maryland wiretapping law that the police have begun using – or abusing – to deter and punish efforts to make objective recordings of police action in public places.  The Maryland ACLU became involved, and as a result the head of MTA admitted that the police were in the wrong, affirmed the public’s right to photograph MTA trains, and offered to apologize personally to this photographer and another who received similar treatment by MTA police.

    Police resistance to citizen recording of their conduct in Maryland also became an issue in an incident that arose when a plain-clothes Maryland State Trooper stopped a motorcyclist for speeding then approached him, with a gun drawn, in a menacing manner.  The Trooper apparently did not notice that the motorcyclist had a video camera attached to his helmet and made a recording of the encounter, which he subsequently posted on YouTube - Now, the motorcyclist admitted he was speeding.  And the trooper may or may not have been justified in drawing his weapon.  But neither of those was the main issue.  After the Maryland State Police learned of the video on YouTube, they obtained a warrant, raided his home, and seized computer and camera equipment.  He was indicted for allegedly violating the same anti-wiretapping law that the MTA police had tried to invoke and was threatened with imprisonment for a decade or longer.  Ultimately the trial judge dismissed charges because, on his interpretation of the statute, it applied only when there was a reasonable expectation that the conversation would be private, and a police officer could have no such expectation in an on-the-street encounter with a civilian during a traffic stop. The judge did not need to decide whether the motorcyclist had a constitutional right to make either an audio or visual recording of his encounter.  It certainly can be argued that he did, but it is difficult to find cases that unequivocally recognize such a right.  In addition, statutes in other states have been applied much differently.  Consequently, the issue of people’s right to photograph or videograph the police in public remains murky.  It is difficult to say with certainty what a photographer may safely and legally do, and the answer may depend on which state the photographer is in.

    There is much more to be said about these general issues, and no doubt there will be further developments.  I intend to blog further about them from time to time.

    I also welcome contact from anyone who has had contentious encounters with building guards, the police, etc., when trying to take photographs or videos.  I would like to know about people’s experiences.  In a given instance, I may or may not be able to provide useful legal assistance or refer you to someone who can.  My e-mail is, or you can contact me through my website at  You may also want to contact a local ACLU affiliate or the ACLU’s national office.  The ACLU has been actively involved in these issues and has had success getting accurate guidance to police and building guards about their need to respect photographers’ rights.

Thursday, June 16, 2011

Motion to vacate denied in Prop 8 case

On June 14, 2011, Chief Judge Ware denied the motion to vacate Judge Walker's decision, which had been made on the asserted ground that Judge Walker was disqualified from hearing the case. The opinion is on the court's website -  The Prop 8 proponents may seek to renew their arguments in the 9th Circuit Court of Appeals.

In a nutshell, Judge Ware stated that a federal judge is not disqualified and does not need to recuse him or herself just because, as a general member of the public or a member of a broad class of members of the public, he or she might be affected by the ruling or have some broadly shared, speculative interest in the outcome. Judge Ware pointed out that all members of the public, including Judge Walker, share an interest in upholding the principle of equal protection of the law. Yet it would be absurd to disqualify a judge just because of that. Judge Ware saw the situation in the Prop 8 case as little different.

The Prop 8 proponents had tried to present their argument so that it was not based on the fact (apparently common knowledge for a long time in the local legal community) that Judge Walker was gay. Rather, they said, Judge Walker was unfit to preside over the case because he was in a long-term relationship with another man, as he stated after he had issued his decision in the case and retired from the bench. (This fact also apparently had been common knowledge before Judge Walker spoke about it publicly.) But there was no evidence whatsoever that Judge Walker at any time wanted or planned to marry his companion; rather, the Prop 8 proponents speculated that Judge Walker and his companion might some day decide they did want to marry after all. It would be just as easy to speculate that any gay or lesbian judge might some time in the future want to marry someone of the same gender, even if the judge was not in a long-term relationship at the time. So, if Judge Walker was disqualified, wouldn't any other gay or lesbian judge also be disqualified? That would a very treacherous holding. On the same reasoning, wouldn't an African-American judge be disqualified from a racial discrimination case that in some broad sense could strengthen equal rights for African-Americans as a class? Properly, Judge Ware declined to go down that road.

Wednesday, May 25, 2011

Was gay federal judge disqualified from same-sex marriage case?

In August 2010, federal judge Vaughn R. Walker, then chief judge of the U.S. District Court for the Northern District of California, issued a 138-page opinion in the case of Perry v. Schwarzenegger, finding that California’s Proposition 8, banning same-sex marriages, was unconstitutional.  Supporters of Prop 8 have appealed to the U.S. Court of Appeals for the 9th Circuit.  The Court of Appeals, quite possibly followed by the U.S. Supreme Court, would in the ordinary course of events decide whether Judge Walker was correct or incorrect in his reading of the Constitution.

But the Prop 8 supporters then tried a maneuver to avoid an actual decision on the constitutional merits of the case and start it all over from the beginning.  On April 25, 2011, the supporters filed a motion in the District Court to vacate Judge Walker’s decision and have him found disqualified – or recused – from deciding the case.  The ground?  That Judge Walker is himself gay and in a long-term relationship with another man. If granted, the motion would move the case back to square one. A new judge would be assigned.  Presumably every one of Judge Walker’s pretrial orders would need to be reconsidered and then a new trial held, followed by a new decision.

The recusal request should be denied.  And it is hard to see the request as other than a desperate litigation tactic, through a reprehensible appeal to prejudice against gay people.  To begin with, this is a stunning change in tactics by the Prop 8 supporters.  The fact that Judge Walker is gay was widely known and even reported in the press at the time of the trial; he did not advertise the facts of his personal life but made no secret of them either.  The press also reported that he appeared at social events with a male companion, a physician.  Yet the Prop 8 proponents did not ask him to recuse himself at any time before he issued his decision – not in pretrial proceedings, not during trial, and not before he issued his post-trial decision. On the contrary, they directly said that did not want him recused.  That really should be the end of it; and their stunning turn-around suggests that their move is all about tactics and not any real concern about a possibility that Judge Walker was prejudiced.

But forget that point for a moment.  What are the Prop 8 supporters actually saying made Judge Walker unfit?  It comes down to this, that because he is gay and was in a long-term relationship, he stood to gain if he and his companion themselves wanted to marry.  But why, on similar reasoning, wouldn’t any married heterosexual judge – or any judge in a long-term heterosexual relationship – be equally compelled to recuse him or herself? After all, the central assertion in support of Prop 8 was that to allow same-sex marriage would in some way inflict grievous harm on the institution of heterosexual marriage. Whether there was any actual basis for that assertion was a central issue in the case.  And wouldn’t an African-American judge be disqualified from deciding a racial bias case because the judge could incidentally benefit?  And shouldn’t a judge of another race also be disqualified because of the possibility that a ruling in favor of an African-American somehow at least indirectly would disadvantage members of other races?  So can no one decide cases claiming discrimination  – because the judge will inevitably, even if indirectly, be on one side or other of the case?  Those who now argue for recusal twist themselves up with all kinds of pretzel logic to try avoid these and other counter-arguments and to say they aren't just appealing to anti-gay bias.

J. Matt Barber, Associate Dean of the Liberty University law school, is more blunt and, I suspect, just more candid in a piece he wrote for the website RenewAmerica. The caption says it all: "If the judge ain't straight, you must vacate." So Dean Barber concedes that it is all about Judge Walker being gay after all. Dean Barber offers little actual reasoned argument but compensates with the level of his stridency.  And he directs his stridency mostly against the merits of Judge Walker's ruling, which can of course be reviewed in the ordinary manner on appeal. As Barber apparently sees it, only a judge who was himself "a practitioner of the homosexual lifestyle," to use Barber's phrase, possibly could have made such a ruling. So. as a gay man, he never should have been allowed to decide the case. And there you have it.