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.
Friday, June 24, 2011
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.
http://www.lbpost.com/news/greggory/11846
http://warriorwriter.tumblr.com/
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:
http://onpoint.wbur.org/2011/06/15/videotape-police
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.
http://www.lbpost.com/news/greggory/11846
http://warriorwriter.tumblr.com/
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:
http://onpoint.wbur.org/2011/06/15/videotape-police
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. http://www.colbertnation.com/the-colbert-report-videos/217341/february-02-2009/nailed--em—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 - http://www.kcits.com/kcits/?LinkServID=F499A825-EEAC-C16E-C19591DEB69D9381 .
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 – http://www.youtube.com/watch?v=_iMr76atjUA . 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 - http://www.youtube.com/watch?v=BHjjF55M8JQ 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 wjmertens@mertenslaw.com, or you can contact me through my website at http://www.mertenslaw.com. 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.
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. http://www.colbertnation.com/the-colbert-report-videos/217341/february-02-2009/nailed--em—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 - http://www.kcits.com/kcits/?LinkServID=F499A825-EEAC-C16E-C19591DEB69D9381 .
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 – http://www.youtube.com/watch?v=_iMr76atjUA . 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 - http://www.youtube.com/watch?v=BHjjF55M8JQ 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 wjmertens@mertenslaw.com, or you can contact me through my website at http://www.mertenslaw.com. 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 - https://ecf.cand.uscourts.gov/cand/09cv2292/ 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.
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.
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