Some Practical Advice about Covering High Conflict News Stories
April 28th, 2015 by Mickey Osterreicher and tagged Access, Arrest, Baltimore Riots, first amendment, journalism, journalist, Legal, Mickey Osterreicher, national press photographers association, Newsgathering, NPPA, photojournalism, police, police relations
See the attached document containing some practical advice about covering high conflict news stories.
Issues covered:
Important items to have with you
Being questioned and detained
Protecting your files
These have been put together as a result of covering the NATO Summit in Chicago in 2012 the political conventions in Tampa and Charlotte later that year and the demonstrations in Ferguson in 2014.
Mickey H. Osterreicher
Twitter @nppalawyer
Posted in Access, Baltimore Police, Baltimore Riots, cell phone cameras, Ferguson, First Amendment, First Amendment rights, Fourth Amendment, Fourth Amendment rights, Legal, Maryland ACLU, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Public Photography, Recording Police, Reporters Committee for Freedom of the Press, retaliation for the exercise of First Amendment rights | No Comments »
First Circuit broadens citizens' right to record police officers in public
June 16th, 2014 by and tagged Arrest, first amendment, free speech, photographers, recording, video
The constitutionally protected right to record police officers on duty in public places such as parks, which was affirmed in Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), has been affirmed by the First Circuit to not only include parks and other traditional public places, but now even routine traffic stops.
In Glik, the plaintiff filmed several Boston police officers arresting a young man on the Boston Commons. The court in Glik held that the First Amendment protects the right of individuals to videotape police officers performing their duties in public, recognizing that it firmly establishes and protects "a range of conduct" surrounding the gathering and dissemination of information. Id. at 82.
The recently decided case of Gericke v Weare broadens this right to include routine traffic stops, concluding that a traffic stop does not extinguish an individual's right to film. The main question that was presented in Gericke was whether a a routine traffic stop was a police duty carried out in public. The court said yes and compared Glik with Gericke, stating that "those First Amendment principles apply equally to the filming of a traffic stop and the filming of an arrest in a public park. In both instances, the subject of filming is police carrying out their duties in public." Id.
But the court recognized that there may be some limitations on this right because the circumstances of a traffic stop can potentially become dangerous to an officer, if for example in this case, firearms are present in the stopped vehicle. Such limitations may come into play when a police officer's ability to perform his duties are actually impaired.
Reasonable restrictions, such as those of time, place, and manner, on the exercise of the right to film may be imposed when the circumstances justify them. See Glik, 655 F.3d at 84. A police officer can order filming to cease only when he/she can reasonably articulate that the filming itself is interfering, or is about to interfere, with his/her duties. Glik established that a reasonable officer cannot, consistently with the Constitution, prosecute citizens for violating wiretapping laws when they peacefully record a police officer performing his or her official duties in a public area." Id. (emphasis added).
In Gericke, since there was a genuine factual dispute about whether the plaintiff had been disruptive, the court denied the officers' motions for summary
judgment on the retaliatory prosecution claim stemming from the wiretapping charge. The First Amendment right to film police activity carried out in public,
including a traffic stop, necessarily remains unrestricted unless it is deemed to be disruptive.
**** Update: Shortly after the decision, the Town of Weare settled the lawsuit for $57,500
Posted in Boston Police, cell phone cameras, First Amendment, First Amendment rights, Glik v Cunniffe, Police, Recording, Recording Police, Simon Glik, Uncategorized, video cameras, violating | No Comments »
NPPA files Amicus Brief Supporting Right to Photograph and Record Police in Public
June 2nd, 2014 by and tagged Access, amicus brief, Arrest, Austin Police Department, Buehler, Davis Wright Tremaine, first amendment, national press photographers association, Newsgathering, NPPA, police relations, video
The NPPA filed an Amicus Brief today in a federal civil rights lawsuit involving an Austin, Texas man, who says that police violated his constitutional right to photograph and/or film police in a public setting.
In his complaint Antonio Francis Buehler alleged that he was arrested on a number of occasions while recording Austin Police officers performing their official duties in public places. As a result of these incidents Buehler formed the Peaceful Streets Project, a group which routinely videotapes police officers in the city.
Buehler filed suit against the Austin Police Department and several police officers for violations of his civil rights. The defendants in the lawsuit then moved to dismiss the suit, and claimed "qualified immunity," which protects government officials from being the subjects of lawsuits unless they have violated a clearly established constitutional right.
"The NPPA chose to file an amicus brief so early in this case because of the extraordinary and incredulous claim by the Austin Police Department that 'the Fifth Circuit does not recognize photographing/videotaping police officers as a constitutional right,'" said NPPA Advocacy Chair Alicia Calzada.
The brief counters the police department's argument that the "First Amendment right to videotape law enforcement is not a cognizable claim," as being incorrect as a matter of law and also because it frames the issue far too narrowly. Rather, the constitutional right to film police officers while on duty has been well established for decades through numerous constitutional decisions that protect the "coextensive" rights of journalists and members of the public to gather information and to hold government officials accountable for their actions, as the First Circuit Court of Appeals held in the 2011 case of Glik v. Cunniffe. In Glik, a citizen was arrested after using his cell phone to photograph Boston police officers he believed were using excessive force in effectuating an arrest. After his charges were dismissed, Glik filed a civil action against the Boston Police Department and won because the First Circuit observed that a citizen's right to film police officers on duty is a "basic, vital, and well-established liberty protected by the First Amendment."
Several other cases have affirmed that the right to film police officers while on duty is clear and unambiguous, thus further weakening the Austin Police Department's dubious claim. Most recently, the First Circuit reaffirmed this principle, denying qualified immunity in a case that involved videotaping police during a traffic stop in the case of Gericke v Begin. The court in Gericke explained that some constitutional principles are self-evident and do not need to have a case directly on point.
The United States Department of Justice ("DOJ") has also affirmed this right in multiple Statements of Interest, explaining that over eighty years of precedent, going back to the 1931 case of Near v. Minnesota, stand for the proposition that "government action intended to prevent the dissemination of information critical of government officials, including police officers, constitutes an invalid prior restraint on the exercise of First Amendment rights."
The law is also clear that these constitutional protections apply as much to individuals as they do the institutional press, something the NPPA has consistently noted. "NPPA has always fought to uphold the right to photograph and record in public for everyone," said NPPA Generasl Counsel Mickey H. Osterreicher. "While the press may not have any greater right of access than the public, they have no less right either and the last thing we want is for the government to be the arbiter of who is entitled to 'Free Speech' or 'Free Press' First Amendment protection," he added.
The amicus brief was drafted pro bono by attorneys Robert Corn-Revere, Ronald London, and Alison B. Schary, with the law firm of Davis Wright Tremaine, who have generously supported this and other NPPA efforts to promote and uphold the right to take pictures in public. Corn-Revere, London and Schary were recipients of the 2013 NPPA Kenneth P. McLaughlin Award of Merit for their efforts in support of the First Amendment.
Posted in Austin Police, Boston Police, cell phone cameras, Department of Justice, DOJ, First Amendment, First Amendment rights, Glik v Cunniffe, law, Lawsuit, Legal, Newsgathering, photographers, Photographers' Rights, photojournalism, Police, Recording, Recording Police, Simon Glik, Texas | No Comments »
Federal "Suspicious Activity" Reporting Initiative Threatens First Amendment Rights
September 20th, 2013 by and tagged Access, first amendment, free speech, journalism, journalist, national press photographers association, NPPA, photographers, photography, photojournalism, photojournalist, police, recording
"I observed a male nonchalantly taking numerous pictures inside a purple-line train."
If this excerpt from a Federal "Tip and Lead" report out of Los Angeles doesn't necessarily convince you that a crime is afoot then you're probably not alone. Nonetheless, that photographer, and many others like him, are now in a federal database under a plan to single out people who may be planning terrorist activity
The problem with the Nationwide Suspicious Activity Reporting Initiative (SARI) is that many of the activities it targets seem well, unsuspicious. Worse yet, many of those questioned under the program were engaging in activities protected by the First Amendment. Despite revisions to try to improve the program, people are still being added to the database who appear to have been doing nothing wrong. The offense of a man recently added to the database: being "very unfriendly." Another was reported for buying a large quantity of cigarettes. Both individuals were of Middle Eastern decent. While the language initiative specifically prohibits racial profiling, a cursory investigation of what files are available suggests people are occasionally targeted for their race. The measure also appears to have the effect, intended or otherwise, of targeting photographers in particular.
Today, in a continued effort to raise awareness of the program and improve its operational standards, the ACLU released a series of the federally collected reports online. The NPPA joined the ACLU and 25 other organizations in a letter demanding reform. The groups also held a press conference in San Francisco addressing the impact of Suspicious Activity Reporting ("SAR").
One of the central issues with the SAR initiative stems from confusion over what behavior falls within the programs purview. The 2009 revised standard for the Director of National Intelligence Information Sharing Environment (ISE), one of a pair of programs that make up the initiative, defines suspicious behavior as observable actions "reasonably indicative of pre-operational planning related to terrorism or other criminal activity." Further, the revision makes clear that "the same constitutional standards that apply when conducting ordinary criminal investigations also apply to local law enforcement and homeland security officers conducting SAR inquiries." The media groups applauded this as an improvement over previous versions of the program, but note that "the failure to clearly state that ISE policy did not authorize the collection, retention or dissemination of personally identifiable information in violation of federal regulations . . . has led to confusion and abuse."
In addition, The FBI's eGuardian program, the other arm of the initiative, does not meet the higher standards of the ISE. The continued reporting of non-threatening behavior suggests that this disjoint is one of the causes of the problem.
Today's letter also observed that "Based on the SARs obtained thus far, photography and videography are frequently reported without additional facts that render these constitutionally-protected activities inherently suspicious. This reporting trend matches anecdotal reports from photographers who frequently complain that they are not only detained and questioned, but are also prevented from taking photographs and video and deprived of their equipment by police."
The NPPA has been involved with dozens of similar incidents. They are troublingly common, even without a federal program that enables, if not encourages their occurrence. "As part of the 'See Something Say Something Program' the NPPA is deeply concerned that these policies create an unnecessary climate of fear and suspicion throughout the country under the guise of safety and security for otherwise First Amendment protected activity," said NPPA general counsel Mickey Osterreicher.
Among the reforms suggested in today's letter, the groups recommended the government "[re]move photography and other activities clearly protected by the First Amendment from inclusion in lists of SAR categories or other guidance criteria to prevent the unlawful stops, detention, and harassment of photographers, videographers, and journalists."
Such a revision would be a step in the right direction to ensuring valuable First Amendment activities are not illegally obstructed, and that it's the people who are monitoring the government, and not the other way around.
Posted in Access, ACLU, California, cell phone cameras, Department of Justice, DOJ, First Amendment, First Amendment rights, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Public Photography, Recording, SAR, Street Photography, Suspicious Activity, video cameras, Visual Journalists | No Comments »
NPPA General Counsel Speaks on Photojournalism Issues at National Press Club
June 28th, 2012 by Advocacy Intern and tagged first amendment, Mickey Osterreicher, National Press Club, national press photographers association, NPPA, Photographers rights
Mickey H. Osterreicher, general counsel for the National Press Photographers Association (NPPA), spoke at the National Press Club (NPC) in Washington, D.C. on June 27, 2012 where he warned NPC members of ongoing issues concerning copyright infringement and the assault on the right to photograph in public places.
"It's vital for citizens and journalists to know their rights when taking pictures or recording in public places. It's even more crucial that police departments have appropriate policies and continuously train their officers regarding those rights," Osterreicher said following the speech.
Osterreicher, who spoke to the NPC last January on a similar topic paid particular attention to the increasing prevalence of police interfering with the rights of the public and the media to photograph in public places. He noted that there have been a growing number of arrests of citizens and photographers who take pictures, particularly those who have documented activist gatherings such as the Occupy protests.
Osterreicher attributed the increase in these incidents to the widespread proliferation of cameras and smartphones, which make it possible for anyone to photograph and record matters of public concern and then provide that material to the rest of the world via the Internet. He said that police nationwide have shown a reluctance to allow such documentation, and have often responded with hostility and threats of arrest.
"I think it's the culture of the police," Osterreicher said. "Their idea of serve and protect often means protecting people and other officers from having their pictures taken."
The NPPA has come to the defense of many of these photographers, both professional and amateur, because of its belief that government officials should never be left to determine what is or is not a newsworthy picture or story. The organization urges offending police departments to drop charges and to adopt policies that do not interfere with the public's right to photograph.
Osterreicher talked about training sessions he has held with several police departments on how to interact with the press, his work with the Chicago Police and the Reporters Committee for Freedom of the Press during the NATO Summit and his preparations for the upcoming national political conventions.
He said he offers this service whenever he writes to police departments that have had incidents with photographers. "People ask me 'Why do you write so many letters?'" Osterreicher said. "Well, the answer is that it's cheaper than bringing a lawsuit. It's cheaper for everyone, but as the police so often say 'we can do this the easy way or the hard way,' I think that a letter is the easy way but in some recently filed lawsuits NPPA has provided support against those departments and officers who blatantly violated our members' constitutional rights."
Osterreicher also spoke about instances in which police have taken cameras and phones and deleted photos or compelled the person who took the photos to do so. He reminded members of the NPC that under no circumstances do officers have the right to delete or destroy photographs or video.
Osterreicher said that he is hopeful that incidents like these decline once police are educated and trained regarding the rights of the press and public to photograph and record.
"The police aren't going anywhere. The media isn't going anywhere. We need to find a way to do our jobs without interference."
Posted in Access, Assault on Photographers, Attack Photographers, Cameras, cell phone cameras, Chicago Police, First Amendment, First Amendment rights, law, Lawsuit, Legal, National Press Photographers Association, News Photography, Newsgathering, NPPA, Occupy Wall Street, Occupy Wall Street Arrests, photographers, Photographers' Rights, photojournalism, Police, Public Photography, Recording, Recording Police, Reporters Committee for Freedom of the Press, video cameras | No Comments »