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How much should you charge for a photograph?NYPD Handcuffs Magazine Editor for Photographing Trains
The editor of a popular railfan magazine was detained, handcuffed, frisked and cited by New York City police officers for photographing trains four months ago – but the incident is just coming to light now.
Apparently, Railfan & Railroad Magazine editor Steve Barry was acting under the advice of lawyers by waiting this long to publish an account of the incident, which took place on August 21.
An account of the incident will be published in the January issue of the magazine, but the editorial was posted Thursday on Subchat.
On August 21, 2010, your editor, along with contributor Mike Burkhart, went into New York City to photograph the Transit Museum’s historic train, which was making a run to the Rockaways. After shooting for most of the day, we were waiting for the return trip at the Broad Channel station when we were approached by two (and eventually, five) officers of the New York Police Department. They insisted that photography was not allowed. After asking for i.d., I gave a verbal legal i.d. (full name and hometown) and repeatedly asked for a supervisor. I soon found myself in handcuffs.
The two men were cited under 1050.9.C of the New York City Rules of Conduct, which only forbids the use of tripods, lights and reflectors when photographing or videotaping trains, which apparently they were not using.
Photography, filming or video recording in any facility or conveyance is permitted except that ancillary equipment such as lights, reflectors or tripods may not be used. Members of the press holding valid identification issued by the New York City Police Department are hereby authorized to use necessary ancillary equipment. All photographic activity must be conducted in accordance with the provisions of this Part.
They contacted the New York Civil Liberties Union, which got the citations dropped.
They were also cited for not producing proper identification, which they were really not obligated to do since they were not breaking a law in the first place.
I know lawyers have their own way of thinking, but I don't believe in keeping the story under wraps for several months if you were unlawfully arrested or cited.
Comments
Usually, the attorney is trying to play it safe. Don't make a media storm until after all the legal stuff is out of the way, that way no one tries to make a point of you in order to save face. Especially with the NYCLU most likely working pro-bono, had the case drawn media attention, they would have had to work harder to fight it when they are trying to use as few man hours as possible to fight each case.
What New York law did they cite you with with respect to the 'failure to produce proper identification' charge?
I can understand that lights and reflectors can be distracting to the engineer(then again, why is the mainstream press allowed to use them?), but why are tripods banned?
Tripods are banned because they might impede foot traffic, which I can understand.
The system doesn't work. The officers go about their day and meanwhile the editor, while he got the charges dropped, has had to deal with a lot of hassle. What's the phrase the Supreme Court likes to use? "Chilling effect"?
I am very surprised that this happened during the historic train operation. There are many railfans along the route taking pictures. Even more railfans, and other tourists, pay upwards of $30 - $40 to ride the train and photograph it. The MTA is fully aware that people are taking pictures of this train and needs to step up to the plate and tell the NYPD to back off (not just for these runs but for all photography). The damage to the reputation of the Transit Museum and the MTA is at stake here.
"Railfan and Railroad" is a national railfan magazine - the Transit Museum could have had good publicity and attracted tourists from across the country to visit and ride the historic trains. Instead the story they will read is how NYPD treats visiting railfans - the message is clear - don't bother coming to NYC.
The above erroneously states that Mike Burkhart is the editor of R&R. Actually, I am the editor and Mike was along with me on this day.
The reason we have waited this long to bring the story to light was we wanted to get the charges dismissed first. Also, the Comptroller of the City of New York has received a Notice of Claim that further action is coming. Stay tuned.
Hi Steve,
Sorry about the mistake. I just corrected it.
I think in cases like this when the cops are clearly out of line, it's important to get the story out there immediately rather than wait to get the charges dropped because that can sometimes take a while.
Sometimes the public exposure is enough to force them to drop the charges.
Although I will admit that is not always the case.
After my first arrest, I launched this blog to the dismay of my lawyer at the time, who wanted to keep it under wraps.
His thought was that they could use what I said against me in court.
That might hurt me if perhaps I did commit a crime, but I was doing nothing but taking photos.
After I launched the blog, the state attorney's office went forward with the case to prove that I was wrong and they even got me convicted of resisting arrest, even though I was acquitted of refusing a lawful order and disorderly conduct.
I eventually had the resisting arrest conviction reversed on appeal.
Perhaps if I would have remained silent on the issue, they would have quietly dropped the charges.
But to me it was more important to expose them for what they did as quickly as possible.
I recently wrote about another case where lawyers advised the defendant not to publish the videotape of officers making an unlawful arrest for videotaping them.
http://www.pixiq.com/article/libertarian-activist-to-stand-trial-
That case still hasn't been settled.
http://www.pixiq.com/article/charges-still-pending-against-adam-mueller-...
As editor of a popular and legitimate rail magazine, you hold a very powerful position where you get the incident on record immediately to people who follow these cases.
Thanks for joining the conversation.
Hi, Carlos!
I'm actually a long-time follower of your blog.
We have issued an editorial (which will appear in the February 2011 issue of the magazine) that gives a lot more detail than what's above, including information on the Notice of Claim. It's currently making the rounds on a lot of railroad-related web groups. The whole editorial is available by clicking on the Subchat link in the story above.
This one isn't over yet.
Steve Barry
Railfan & Railroad
Newton, NJ
If you follow this blog I'm very surprised you didn't know your rights and gave in to the cops demands.
Ummm, what makes you think I gave in to their demands? I mean, I stood my ground, requested a supervisor numerous times and got handcuffed. That's hardly giving in to their demands...
Steve, I think you did great - in fact I don't see how you could have done better. I also think listening to your competent counsel regarding the timing of publicity is likely better than listening to a blogger (however great the blogger is.)
Here's hoping the people of NYC buy you the best camera and lenses money can buy as penalty for employing such thugs as police.
1. You didn't demand that the officer state his reasonable suspicion for stopping and questioning you.
2. You gave them your name and hometown even though you knew you had committed no crime and this was an unlawful TERRY stop.
3.As has been discussed here numerous times, HIBEL only requires you to give your name during a lawful TERRY stop (which this wasn't) in states with "stop and identify" laws.
1. His suspicion was unauthorized photography. Yeah, it's bogus but in his mind that was the suspicious part. I had already asked for him to show the statute and get a supervisor, but he chose to do neither. So, yeah, I demanded but didn't get an adequate answer.
2. Since I wasn't in my home state, I wasn't sure what I had to do legally when asked for i.d. Giving my name and hometown seemed prudent to me at the time, since I wasn't sure.
3. I challenged the lawfulness of the stop by asking for the statute and supervisor. That wasn't getting me anywhere. In the cop's mind, it was a lawful stop and there wasn't going to be any way I was going to convince him otherwise. And as I said, I didn't know if New York had a law requiring I give i.d.
Personally, given the stress at the time, I think I did pretty good.
Is the editorial different than what is posted on Subchat, which I linked to?
I would be happy to include it in the article if you email it to me at carlosmiller at magiccitymedia dot com
Whoops. Didn't see the link. That's it and I corrected my post above.
Steve Barry
I am surprised they have not sued for false arrest. There is no requirement for producing papers, just a requirement to identify yourself (CPL 140.50). It only says that you have to provide name, address, and reason for being there.
Actually, since this statute can only be implemented when a cop "reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor", the photographer was under no obligation to provide ANY information. In addition since the SCOTUS ruling in the HIBEL case he would only have to give his name. Assuming the cop had articulatable facts with which to back up his reasonable suspicion.
The police officers did not cite CPL 140.50. They cited instead 21NYCRR 1050.6 (4)(3) which reads as follows:
All persons on or in any facility or conveyance of the Authority shall:(3) provide accurate, complete and true information or documents requested by New York City police officers or Authority personnel acting within the scope of their employment and otherwise in accordance with law. A farecard issued according to specified eligibility criteria that entitles the lawful holder thereof to a reduced fare or free transportation must have the name of the eligible holder clearly visible on the card and any person holding such farecard must comply with a request of Authority personnel or a New York City police officer to physically inspect such farecard.
http://www.mta.info/nyct/rules/rules.htm#use
These are rules specific to the use of the subway system. However, note that it says "true information OR documents"... Showing an ID card does not appear to be a requirement - merely identifying oneself seems to be sufficient.
I am not a lawyer so one should be consulted if advice is needed
"in accordance with law"
Again, the law as it pertains to a TERRY stop is that the officer has to have a reasonable suspicion, supported by articulatable facts, that the detainee has committed, is committing or is about to commit a crime. If they can not give any reasonable suspicion or if you ask and they say you are not being detained you don't have to say or tell them anything. If they tell you you are being detained and you are in a state with a "stop and identify" law the SCOTUS has ruled that you only have to provide your correct name. Which you really don't have to do but if they arrest you they might add that as a charge and you won't get any bail until they identify you.
A General Order issued by the NYPD seems to be missing from and is relevant to this discussion:
This document is not worth the paper it is printed on. Except in the most egregious cases of police misconduct, NYC takes no disciplinary action against the cop and pays off the "victim." This has gone on for a long, long time.
I see he's suing for $50k.
You know, I've said this before in another post here but.. "I can't believe some enterprising person hasn't taken this situation to heart and ran with it."
How difficult would it be to do the same thing? Take some legal photo's, get falsely arrested, sue for $50k and settle for $35.
A week later do the same thing, but seeing they didn't learn the first time sue for $100k and settle for $65.
The third time make it $200k.. and settle for a buck and a half.
Think about it..
Do it a half dozen times (increasing your suit amount every time) and you're several hundred THOUSAND $$$ ahead of the game.
So the question is..
Why hasn't anyone thought of this before? It's easy money. Hey, if the Cops are stupid enough not to know the law (and the City has to pay for their stupidity), then so be it.
Rail Car Fan
The simple answer is that it isn't easy money at all.
35k here - 50k there... It's all meaningless to New York City. After all we are the city that just got swindled out of $80 million in a payroll scandal which City Hall is downplaying as a minor incident...
The problem here is that the cops do know the law - that fact has become crystal clear over the past near-decade.
Remember the "Morton Grove Incident," where METRA (Chicago) was compelled to acknowledge that the cops lied about the law, and to apologize for this?
In addition, it became clear some years back that - someday - some U.S. transit operating agency would be hauled into court over this.
The only thing that wasn't clear was when - and which system. I've been "rooting" (so to speak) for New Jersey Transit and Boston-MBTA ... but thanks to Steve and Mike, it looks like "the system" will be NYCTA.
You've done well thus far, gentlemen, and I hope you'll keep up the good work.
MBTA's photo policy is quite clear: you may take pictures anywhere the public is permitted. If asked for a picture ID you must produce it. With few exceptions I had no problems when asked and in some cases the supervisor or inspector I got into a friendly discussion about the "T". In 2009 I did get a copy of the T's policy from marketing and showed it to a supervisor at Wonderland. That supervisor then called along the Blue Line to let others know that I was OK and I had no further issues. He also made it clear that flash and tripods were not permitted in the subway but with my Nikkor lens I was more than able to use available light with great results. I think one issue not mentioned heretofore is attitude. I remained very positive and had positive results. The results are a very extensive website with results from my three visits as well as the knowledge of the marketing department to use the T's copyrighted logo and maps with a copyright disclaimer.
The "Photography Policy & Procedure" does not say that "you may take pictures."
URL: http://www.mbta.com/uploadedfiles/About_the_T/Police/Photo%20Policy%201.pdf
It says that "The MBTA Transit Police Officer or other MBTA Official may allow" you to take pictures.
Key word: "may."
In other words, if the "MBTA Transit Police Officer or other MBTA Official" does not wish to allow you, then they don't have to.
Note in addition the statement of "employee responsibilities."
"MBTA Officials: Officials who observe a person taking pictures shall immediately notify the appropriate Line Dispatcher and inform the person of this policy. The Line Dispatcher will notify the MBTA Transit Police Dispatcher. If possible, the Official should obtain the identification information (name, address, date of birth, and any other appropriate information) while awaiting the police response. If the person refuses, the Official should ask the person to stop taking pictures and the Official should update the MBTA Transit Police Dispatcher."
"If no MBTA Transit Police Officer is available to respond in a timely manner, the Official shall record the information on a report (standard statement) and forward the report before the end of the Official’s shift to his or her area Superintendent’s office. The Superintendent or Supervisor shall fax the report to the MBTA Transit Police Department Intelligence Unit. The fax number for the Intelligence Unit is 617-222-1036."
-----
I am not a lawyer - but that fact does not prevent me from offering the following opinion: The MBTA "Photography Policy & Procedure" document has the look of something drafted "through gritted teeth" (so to speak).
MBTA enforced an "unwritten rule" against photography for decades. Literally. I experienced this as a teenager in 1970; I heard firsthand accounts (back then) dating to the 1950s, together with speculation that it might have started at the beginning of WWII.
Then, in 2006, the ACLU threatened a lawsuit. MBTA management acknowledged that there was no written rule against photography, and (prudently) declined to explain why, when and under what authority the "unwritten rule" was adopted. The result: the 2007 "Photography Policy & Procedure."
MBTA did not adopt this policy because it wanted to - it was forced to, and that fact becomes obvious if you read through the document. For example:
"... intelligence indicates that persons who wish to target particular locations for terrorist purposes are likely to use photography as part of their pre-attack surveillance and planning."
Bulls__t.
The European Commission and the International Union of Public Transport (UITP) held an "expert roundtable on terrorism and security" in 2003. The published report covered nine "high-impact" attacks against rail transit between 1985 and 2004. The report did not mention photography, and (obviously) provided no hint that "pre-incident photography" was an issue.
"capolarry" had a good experience, and stressed the importance of keeping a positive attitude. Very well. However, as author William Faulkner put it, "The past is never dead. It's not even past." MBTA was permitted to enforce an "unwritten rule" against photography for a long time - perhaps as long as "almost 70 years." The associated institutional culture is not going to go away anytime soon.
"Why hasn't anyone thought of this before? It's easy money. Hey, if the Cops are stupid enough not to know the law (and the City has to pay for their stupidity), then so be "
It's never easy money with the Cops.
They get to go on the stand and lie.
And people tend to believe them.
I had a pretty solid case in NYC where
they accused me of something I didn't do
and then yelled at me and pushed me around when
I didn't produce an ID for them (I wasn't even carrying one).
My wrists were all bruised up from the cuffs.
Lawyers never even called me back.
Have you considered a criminal complaint against them?
http://www.fbi.gov/about-us/investigate/civilrights/color_of_law
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