Do we need a federal civil rights law that specificially protects photographers?

March 23, 2010 @ 12:53AM

Do we need a federal civil rights law that specificially protects photographers?

By Carlos Miller -...

Juries can sometimes be clueless.

In my 2008 trial, a Miami jury determined that I had resisted arrest without violence even though they had also determined that I was not guilty of any arrestable offense. It took a lengthy appeal process before a panel of three judges reversed that conviction.

And last week, a federal jury determined that New Orleans police did nothing wrong when they arrested two men who had filmed them in 2007, even though the charges against the men were quickly dismissed.

In fact, police even deleted the video, which is in itself, an illegal act.

The video, which was recovered, showed police officers walking away from the camera before one officer turned around and walked back towards it. The video then went blank.

But still, the jury sided with police in the matter.

The two men, Greg Griffith and Noah Learned, were charged with crossing a “police cordon”, which evidently doesn’t even have to be a real cordon. Just some imaginary periphery created by the officers.

This is how the New Orleans Times-Picayune describes the arrest:

The pair were watching the parade on Canal Street when they saw a fight break out between two factions of young women, said Griffith, who came to New Orleans after Katrina to volunteer.

A group of officers responded to the fight after it broke up, he said. Griffith, who started a group called “Cop Watch” with Learned when they were both students at Kent State University, said he began filming the officers, capturing Hughes grab a woman by the hair and push her to the ground.

Griffith kept filming after the woman left the scene, although he noted it seemed to provoke the officers’ ire. The video, which was shown to the jury, showed the officers walk away from Griffith. But Harrison, who has since left the force, was seen turning around and walking back toward the camera, which then went blank.

And if that wasn’t enough to prove to the jury that the cops acted out of their authority, several other plaintiffs testified about their own problems when filming police against their wishes, including a Times-Picayune editor and Associated Press videographer.

Those subpoenaed to testify included Gordon Russell, city editor of The Times-Picayune, who was questioned about a post-Katrina incident when he and a New York Times photographer were stopped by police, put up against a wall and had a notebook and camera taken away. Russell was able to recover his notebook after he was released by the group of officers, but the photographer’s memory card was confiscated by police.

A videojournalist from The Associated Press also testified about a widely publicized incident in the French Quarter several weeks after the storm. Rich Matthews was trying to film the much-criticized arrest and beating of a man on Bourbon Street, but an officer grabbed him and ordered him to stop filming.

The jury’s decision led to an article in the Christian Science Monitor in which a University of Tennessee law professor stated that we need a federal civil rights law to protect citizens who film or photograph police from getting arrested.

“Abuse of photographers is common, and difficult to remedy under current law,” writes University of Tennessee law professor Glenn Reynolds in an e-mail. “I believe that public officials performing their duties – including, but not limited to, law enforcement – should be subject to photography by citizens, and I would favor a federal civil rights law to that effect.”

The CSM article highlights several incidents where people were arrested for photographing cops, including my own arrest.

After a three-year legal battle over Miami photographer Carlos Miller’s arrest on a public street for refusing to stop taking pictures of several police officers, Mr. Miller saw all the charges dropped this week. (His compendium of such incidents can be seen here: carlosmiller.com)

The article also acknowledges that “police often have the upper hand in court.”

Had I not appealed my initial arrest nor had I not plead not guilty to my second arrest, I would have had several criminal charges on my record for the simple act of taking photos of cops against their wishes.

The difficulty in beating such cases is also mentioned in a Philadelphia City Paper article that states that police have “wiggle room” to make these arrests stick.

Because neither the state Supreme Court nor the federal appeals court that oversees Philadelphia has ruled that such arrests violate either the First or Fourth Amendments — the ones regarding free speech and unreasonable searches and seizures, respectively — there’s enough wiggle room for cops to round up anyone snapping photos of them from across the street, even if both the cop and the photographer are on public property. After all, if the cop doesn’t like the idea of a citizen journalist or interested onlooker committing his image to film (or memory card), he can simply claim that the photographer was “creating a hazardous condition,” as Gress said of Sasnou in the police report.

This, however, may soon change. In 2007, Brian Kelly sued the Borough of Carlisle, Pa., a small town west of Harrisburg, for what Kelly claims was a false arrest, after he videotaped a police officer during a traffic stop. During that stop, Officer David Rogers demanded that Kelly, who was in the passenger seat of the car Rogers had pulled over for speeding, turn over his video camera. After Kelly complied, Rogers arrested him for violating the state’s wiretap law, a felony, even though the state Supreme Court already ruled that the wiretap law doesn’t apply. A district court denied Kelly’s motion for summary judgment — meaning, essentially, his request to get a judge to rule that his actions didn’t violate the law. He is appealing in federal court.

Even though the conviction is my first arrest was reversed, I am still waiting for that case to be officially dismissed. I know I stated in a previous article that I have no criminal charges hanging over me, which is true because the State Attorney has not refiled charges and they are technically unable to do so, according to my lawyer who has yet to make me fully understand why. I am going to meet with him this week for lunch to get the full details. He said it has something to do with the fact that it was a misdemeanor charge and not a felony.

And he said that the State Attorney has a time limit which is set to expire soon. Once that happens and the case is officially dismissed, then I can proceed with my civil suit against Miami police.

While most of us can see that I have a strong case of having my rights violated, you never know what will happen once the case is brought before a jury.

Perhaps a jury will think that police did no wrong that even though I was within my legal rights to photograph police and even though I was jailed for 16 hours and even though I lost work as a result of the arrest and even though I was forced to spend thousands of dollars in order to prove my innocence.

Perhaps the jury will think that I somehow asked to be arrested because I maintain a blog where I document these arrests.

Perhaps the jury will think that I am a “police antagonist” because I was arrested a second time for photographing cops against their wishes, even though those charges were dropped. That, after all, is what prosecutors called Griffith in the New Orleans case because he had been arrested three times for videotaping cops against their wishes.

If that is not a well-documented pattern of police abuse, then I don’t know what is.

So perhaps it is time for a federal civil rights law that protects photographers.

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