Pennsylvania Photographer Nearly Gets Arrested For Photographing From Bridge

February 25, 2012 @ 2:26AM

Pennsylvania Photographer Nearly Gets Arrested For Photographing From Bridge

Topics
News

Pennsylvania photographer Jason Macchioni was taking photographs from a bridge in Elizabethtown the other night for a time-lapsed video, which naturally got the cops thinking he would then try to blow up the bridge or something.

One cop, Northwest Regional Police Officer Charles Tobias, pulled up and demanded to know what he was doing, not seeming to understand the terms “time sequence.”

Tobias then began demanding Macchioni’s identification, which he refused to hand over because he was not committing a crime.

Then another Northwest Regional cop named Harry Cleland pulled up, noticed Macchioni was video recording them, so he started threatening to arrest him on wiretapping charges.

The idiot cop apparently is unaware of that provision in the law that says he can be recorded if he doesn’t have an expectation of privacy.

Macchioni turned the camera off rather than spend the night in jail even though he was right.

But now he has gotten the ACLU involved who have filed a complaint with the department.

This is how he explains it on Youtube:

I was shooting a time-lapse which I'm still working on, I arrived at this site around 9 and was there for about 3 hours until these two cops rolled up! At first I was calm and refused to give ID, After the second cop was breathing down my neck and really threatening me. I gave in and tried to get them to leave. Then stuff got heated.

The first officer (Charles Tobias) was nice but just couldn't grasp what I was doing after 4 explanations, He started to become angry when backup arrived, I guess so his fellow cop knew he was tough and could handle me? I gave him my ID even though I knew I didn't have to, to try to make them leave asap, After the second cop (Cleland) notice I was recording become very upset, I guess he doesn't like evidence when he breaks laws and infringes on a citizens rights. He also told me his dash cam and microphone was NOT on. Which I think you must have that on a call like this?

Officer (Harry Cleland) starting saying off camera that "if he wanted to hurt me he would have just came up and did it and stomped my phone and beat me up if he wanted too". I told the officers I wanted to record to protect my self cause a lot of people being "mistreated" by the police. The officer (Celand) said well that's mostly the "blacks" fault, People getting beat up.

He does not know Pa Wiretapping laws at all and my right to record! I have run into this cop before, I was shooting a car accident and this cop said 'If you don't leave, I'm going to confiscate your camera". So now I know he has a record of violating citizens rights!

After the video stops, He (Cleland) went on a rant about people recording cops and thinking "they" know the law and about him thinking "black people are the problem, cause of drugs and crime". They left I took a breath and checked my phone, My heart sank further knowing it didn't catch-all of it. It did catch one thing, Him (Cleland) threatening to arrest me for recording him. Which is against the law, harry cleland

These Cops need to learn the law when it comes to photographers, and I can't wait for my public apology.

Both Officers are from Northwest Regional Police Dept. Their website can be found here if you would like to send them some emails! http://northwestregionalpolice.org/Officers.htm

Please send stories, tips and videos to carlosmiller@magiccitymedia.com.

Also, if you would like to contribute to my Legal Defense Fund, please buy a photographers' rights lens cloth and/or laminated card to wear around your neck like a press badge through Zap Rag. Please write "carlos3" in the comments section of the Paypal transaction to ensure I receive a portion of the sale.

Or you can just donate to my Legal Defense Fund by clicking on the button below.

Comments

Slk

2 months ago

Lets see what we have here; ignorant, racist, uneducated about the law, threatening violence, and threatening to commit criminal acts. It all sounds so familiar, wait a minute Jason Macchioni may have just discovered Johnny "Sadist" law's long lost Pennsylvania cousins.

Jake de la Playa

2 months ago

I don't fault him for it too much but he handled this poorly.

First, he should have absolutely confirmed that he was being detained. Later this became undeniable when he said "I feel like I'm surrounded," and the other cop said "you are." An argument could be made that it occurred when the officer demanded ID but it's still disputable. He should have expressed his every intention to leave, even to the point of trying to, if necessary and most importantly just kept his mouth shut. He Shouldn't have said anything about "knowing the chief" because of his Dad's "problem" with the cops. That only gives them reasonable suspicion.

I'm not sure why he decided to give up the ID after refusing to. I guess he could have been scared to goto jail but stick to your guns, man. Also, he relied on his "dad's friend from the ACLU" for his information which certainly won't gain any favor with the police and isn't the same as reading it yourself. Best to not even get into an argument with them. "No disrespect intended but its my right to record and I'm going to continue." He would have possibly recorded them making those other comments which I'm almost certain they would have been dumb enough to say.

And dammnit, I'm so tired of photogs shutting it off on demand. I understand the fear about going to jail. But they have to look at the big picture. The net gain can be so much greater than the loss, financially and socially.

I know its hard and I can't judge to harshly because I've been in similar situations where you just calculate, "hey I gotta go to work tomorrow" or whatever. But I'd say don't embolden the police at all by photographing in areas where you are likely to encounter them if you're not willing to take a stand. Now these cops will believe they have the authority to do this.

One final note, if anything, print the dang law. It probably won't matter in winning the argument against cops but at least you'll be certain for yourself. (You can also buy Carlos' Photographer Rights card/lens cloth--shameless plug for Carlos.)

DavidM

2 months ago

Print which "dang law"?

Steveo

2 months ago

Just in case these cops read your website, Carlos, I have a link here to Wikipedia. They might not have heard that the Japanese bombed Pearl Harbor. They were probably sick that day.

http://en.wikipedia.org/wiki/Attack_on_Pearl_Harbor

Steveo

2 months ago

Robinson v Fetterman 2005 Eastern District Federal Court

Robinson got 42K and the lawyers got 47K, and all he got arrested for was "harassment" which was a ride in the State police car and he was given a ticket at the magistrates office and let go. Cost the taxpayers almost 100K.

http://www.leagle.com/xmlResult.aspx?xmldoc=2005912378FSupp2d534_1863.xm...

Matheny v County of Allegheny Pennsylvania. Matheny arrested for wiretapping by U of Pittsburgh police.

Mr. Matheny got over 100K in damages and legal fees.

This videographer doesn't have to go to far to find good precedents.

Dave M II

2 months ago

That one hits close to home - less than an hour from me. If a group wants to get together for a shoot and walk through town let me know.

The incident gives good reason to have a back-up recording device. Even if they are successful in intimidation to get the "primary" recorder stopped (or they illegal confiscate it) you will still have the record. It would likely be more damning as well since they won't believe there is a record once the primary camera is shut down - since it is their word against yours the officer would probably spew like the one cop did in this encounter.

Matt B

2 months ago

I'm down in Lancaster and I'd love to do a walk through. When's a good day/time?

Jake Stichler -...

2 months ago

Same here, I'm up in Lebanon.

Concerned

2 months ago

You don't need a backup. Look up Qik.com You're NOT just recording, it's a live feed to ur online account; SO if they do take ur equipment (phone) you now have evidence of yet another violation. Let me make this VERY CLEAR--I AM NOT against the police. I AM AGAINST ABUSE, CORRUPTION, BULLIES, HYPOCRISY, ETC. This was a clear example of all of the above. He should have allowed them to arrest as these laws have been 'clearly established' therefore denying them 'qualified immunity' see: Glik vs Cunniffe. google it. Even tho Glik is 1st Cir. I believe same legal principle would apply in 3rd Cir. PA.. Additionally, another poster listed 2 State cases. He can still sue, most state have at least one year to file complaint. Please, please, please, file the complaint.

Johnny Law

2 months ago

I completely disagree with the officers on this one. The guy explained what he was doing and was polite. It should have been more than enough to satisfy the officer. There was no reason that I could see to demand the ID.

I think the guy has a valid complaint for an illegal detention.

I'm not familiar with the PA wiretap law but it seems the officers should know they can be filmed in a public place. Pretty poor display by the officers.

DanPTaylor1

2 months ago

See? Johnny's a reasonable guy. So could we tone down all the troll rhetoric elsewhere?

hhamlet

2 months ago

It's a trap.

phillip smith

2 months ago

Yes, he was polite ..a lot more so than the officers I might add. However, does this really have any legitimate, legal bearing over the facts? You suggest his politeness has some mitigational value.

Johnny Law

2 months ago

It does have some value. If he had acted nervous and defensive, I may have decided to try to dig a little deeper by asking for ID. However since his demeanor was calm and he politely explained what he was doing, I don't see why the officer felt the need to detain him or get his ID. It was clear at that point that he wasn't doing anything wrong.

Matt B

2 months ago

But it SHOULDN'T have any value. Normal non-criminals can be just as nervous and defensive when being questioned by cops with the threat of going to jail- even if they didn't go wrong. Its a high stress situation.

Johnny Law

2 months ago

You can't expect officers to ignore the fact that a person is nervous or defensive when dealing with police. Of course it's not enough reason to detain someone but it is a piece of the picture that officers use to develop reasonable suspicion or probable cause.

Nervousness/evasiveness/excessive anxiety of a subject is usually enough to legally justify a frisk if I am dealing with a subject that I detained. However each circumstance is different.

Jon Quimbly

2 months ago

Buttonhole camera: http://beta.hammacher.com/Product/79928?promo=search

Gumstick camera: http://mindtribe.com/2010/04/products-we-love-mini-gumstick-camera/

Inexpensive protection against LEOs violating photographers rights. Just you be certain about the law on covert recording in the state(s) you use them in.

DanPTaylor1

2 months ago

I love those photos, by the way. Looks like they snapped pictures of them as they happened to be walking by an American flag.

HeyG

2 months ago

As a photographer and police officer let me explain something: if I as a police officer can articulate that a crime is being committed or may be committed I can stop and ask you questions even if in the end of the investigation no crime was committed. If you fail to follow verbal direction and act in a way that I suspect I could be harmed I can search you for weapons...plain feel doctrine. When asked for his ID this gentleman should have given it up. If you choose to escalate the encounter by stating your rights you should know what you are talking about. I only have to articulate in a reasonable fashion that a crime is being committed. There is such a thing as disorderly conduct in some states and if escalated this would be a proper charge if you fail to follow verbal directions.

Frank

2 months ago

In other words: "If I tell you to get on your knees and start sucking, I'd better get off, because otherwise you're going to jail."

jason

2 months ago

Thanks, Thats pretty much what he was saying....

HeyG

2 months ago

No read the statement. I'm not sayings theses cops were right but if I think you are committing a crime I can stop you and ask you questions and place you in handcuffs. This has been vetted by the Supreme Court. You don't have to like it!

jason

2 months ago

No you can't put anyone in hand cuffs unless you have proof a crime was committed or reasonable suspicion, Taking photos does not apply. Period

HeyG

2 months ago

Exactly. I have the right to place youin handcuffs until my investigation reveals that a crime is not being committed. If I so much as think and can articulate that one is or has been committed I can. What don't understand? You don't have to like it and it's protected by a Supreme Court ruling. If I think and can articulate that you are taking photos to commit a crime now or in the future I can detain you. Just because you re in handcuffs it doesn't mean you are under arrest. Grow up!

Jake de la Playa

2 months ago

"I have the right to place youin handcuffs until my investigation reveals that a crime is not being committed."

If you are a police officer, then your knowledge of the law is severely lacking. The fact that you are making a detention does not give you automatic authority to place someone in handcuffs, and doing so can indeed create a functional arrest.

Detaining, frisking and handcuffing are all different things. First, as you mention, you may detain someone upon reasonable articulable suspicion (RAS) that a specific crime has been committed, is being committed or is going to be committed AND they are linked to that crime. "Bare suspicion" or a hunch is not sufficient and there must be a specific penal/criminal code section that you reasonably suspect them of violating (Terry v. Ohio, 392 U.S. 1 (1968)).

Even if you wanted to argue in this case that the officers had the authority to detain, they would have to be able to cite a specific Pennsylvania Criminal Code or local ordinance within their purview that the photographer was reasonably suspected of violating. Its unlikely they would be able to.

Secondly, in order to frisk, the investigatory stop must be lawful and you must have RAS that they are armed AND dangerous. Detention does not mean automatic frisk You have to be able to articulate what would lead a reasonable person believe that the subject is armed and dangerous.

Cops abuse this one all the time. Relating to this part of the law, they actually seemed to do an OK job because while they detained him, they didn't frisk. Of course, since the underlying detention was likely illegal, the frisk certainly would have been. Again, detention ≠ frisk.

"I have the right to place youin handcuffs until my investigation reveals that a crime is not being committed

Wrong. Handcuffing during detention can easily make the detention a functional arrest if there is no additional flight risk or it is an "inherently dangerous" situation (Michigan v. Summers, 452 U.S. 692 (1981)). If you create a functional arrest without probable cause, then you have made an illegal arrest.

You certainly wouldn't have been legally able to put him in handcuffs in this situation. Once a person has been frisked and cleared, there are very few reasons to put them in handcuffs before arrest. This guy posed no articulable flight risk, nor would it have been very likely with two officers and the fact he was on a bridge.

"When asked for his ID this gentleman should have given it up...There is such a thing as disorderly conduct in some states and if escalated this would be a proper charge if you fail to follow verbal directions. "

He's not required to produce any document. Even in states which have a "stop and identify" statute, there is no requirement to do anything else but state your name. Hiibel v. Sixth Judicial District Court of Nevada never found that a person has to show their driver's license outside of a vehicle.

They can ask all they want. But by refusing to provide it can't be the basis for any more suspicion. A person can't be penalized for exercising their rights. And refusing does not mean that he or she is being disorderly. That's absolutely ridiculous.

"The supreme court has ruled on this so before you open your mouth understand the law."

If you want to mention the supreme court, you need to specifically cite them and quote from them instead of a generalized statement like this. No one can refer to the case or refute your statement if you don't even tell us what exactly you are talking about. My friend, you are the one who needs to know exactly what the law says firsthand. Don't rely on Dept policy or classes or buddies to tell you. Read the cases and understand them. The law itself will be the only thing to save you in court.

jason

2 months ago

Thank your for explaining it well. On spot sir

Johnny Law

2 months ago

@ jake de la playa

Very well said indeed.

hersheydad

2 months ago

A law enforcement office must have "reasonable, articulable suspicion" that a crime or infraction has occurred before he can detain you or ask for your identification. That is a huge distinction.

It doesn't take a genius level IQ to determine very quickly what the photographer was doing in this case. That should have been the end of the questioning.

Instead, these officers threatened him with arrest by claiming a wire tap offense which is absurd. Cops simply don't like to be filmed or photographed and, quite frankly, that's too bad. We live in the United States of America and live by the U.S. Constitution. Unless the photographer interferes with their work, he is permitted to film in full view.

HeyG

2 months ago

DanPTaylor1

2 months ago

I've got to say it's quite concerning to know that there are people like HeyG who possess a badge despite not being properly trained in the law and with incorrect assumptions on what is allowed. This is the fundamental problem: Cops who either aren't well trained in the law or who have stopped caring what the law says.

I Film Police

2 months ago

Man,......you just wanna put someone in cuffs dont you.

Johnny Law

2 months ago

I gotta say I don't see what crime was suspected in this case. He had a reasonable explanation for his actions. I suppose he could have been in the roadway but I couldn't tell from the video and the officer didn't mention that as a reason for stopping him.

Sometimes you just gotta walk away when you don't have anything.

DanPTaylor1

2 months ago

Do you think this could be an issue with training or something else?

Johnny Law

2 months ago

I'm afraid it may be a case of ego. Some cops have a real problem when people refuse to answer questions and just don't want to let it go.

We get compliance the majority of the time so a refusal to answer questions/provide ID doesn't always get handled the way it should. No excuse for it though. I always cringe when I see a video of an officer repeatedly asking for ID but won't admit that it is voluntary on the part of the subject.

Jon Quimbly

2 months ago

"There is such a thing as disorderly conduct in some states and if escalated this would be a proper charge if you fail to follow verbal directions."

It sounds like you're saying that you'd use disorderly conduct as a non-specific charge for arresting someone who speaks up about their rights, or if you don't like the answers you're getting - is that right? Regardless whether they're actually committing a crime? Just taking pictures and *you* don't think they should be? Even though it's *legal*?

Carlos, you should interview this cop - he's your loyal opposition.

jason

2 months ago

Yea, it sounds like he arrest people for taking photos, they they Don't give him ID and Start to tell him their rights. Man this guy needs to get recorded doing that!

HeyG

2 months ago

Read the statement and know the law. I only have to articulate that a crime is being committed, has been committed or is going or be committed to stop and ask you questions and place you in handcuffs. Look up "terry stop". If you are going to state facts know what you are talking about. If you refuse a lawful order then you are disorderly. They had every right to ask this person what he was doing. You remember 9/11? That is all this officer needs to articulate.

jason

2 months ago

Remember 9/11? who cares this is not about a terrorist act, YOU Have to have proof there was a crime committed, I've talked to the ACLU on this, and they said that exactly. IF you place someone in hand cuff and you have no proof, you will be responsible for wrongful arrest and false imprisonment..

HeyG

2 months ago

You have no idea what you are talking about. Just because you are placed in handcuffs does not mean you are under arrest. No one said it was a terrorist attack but an officer only have to articulate that something may be happening. If in the course I discover that no crime is being committed then the cuffs come off and you go on your merry way. This is called a terry stop and protected by a Supreme Court ruling. This is not the definition of false imprisonment. If someone was taking pictures of a rail switching yard and an officer was called to the scene that is the probable cause for the stop and were the investigation starts. Does this make any sense? You as a citizen may know your rights but I never have to inform you of them until you are arrested and I ask you questions regarding the particular crime, Miranda Rights.

hhamlet

2 months ago

Just because you are placed in handcuffs does not mean you are under arrest.
------------

So when you are placed in handcuffs you can just walk away? Continue about your day... only with a sparkly pair of wrist jewelry. And a warm fuzzy feeling in your heart that a cop likes you and has claimed you for his own... How dreamy.

Steveo

2 months ago

ACLU says you are under arrest if the cops order you out of the car, let alone put handcuffs on you.

Jon Quimbly

2 months ago

"I only have to articulate that a crime is being committed..." etc

What crime would you be talking about? What is your truthful articulation of a factually obvious crime, in the case of public photography?

Photography is generally legal in public places, so I know you're not stipulating that it's the crime you'd articulate, because it's not one.

Other than that, you've got, what, loitering? Disorderly conduct? A bullshit charge that covers for the fact that you can't arrest somebody for photography, which sounds like your real goal.

DrCos

2 months ago

"..If you refuse a lawful order then you are disorderly."
Demanding proof of ID once a person had identified himself is NOT a lawful order. You need to look up "terry stop" yourself.

"They had every right to ask this person what he was doing."
And once he told them, and identified himself, the conversation should have gone in a less threatening direction You keep ranting about it's the law whether we like it or not, but you also have to follow the law whether you like it or not.

Concerned

2 months ago

You fail to mention that IF you were to do as you say, you WOULD BE REQUIRED to present facts to a court (believe me, you and I would meet again in federal court) that my actions created 'reasonable suspicion' of a crime. Otherwise, we would be looking at an illegal seizure/arrest. Secondly, every statement coming out of LEO mouth is NOT "lawful." Therefore, refusing to co-operate or acquiesce does not rise to 'disorderly.' These officers 'created' the disorder by failing to comprehend. He apparently did not understand 'time-lapse.' You were, however, correct about one thing. They had the 'right' to ask this person what he was doing AND, hear this clearly; he had every right to continue doing it without any comment to any of the officers. Finally, violates 'wire-taping laws.' BS. He was not Surreptitiously recording anything. I really liked this: "you can't 'video' our voices" Well, the LEO was right about that, no one can 'video' voices with a camera.. LOL.. Have a nice day sir. Oh, BTW, I am NOT against police, just ignorance, abuse, bullies, corruption, etc.

HeyG

2 months ago

Harvey

2 months ago

I am not or have not committed a crime, I do not consent to this conversation, I am under NO obligation to answer any of your questions. IF you fail to leave me alone and continue to harass me a person who wishes to be left alone then YOU Sir are guilty of a disorderly persons offense. making a public nuisance of yourself and harassing a person who wishes to be left alone. YOU do not have the authority in a consensual encounter to force people to do ANYTHING. IF you fail to articulate a reasonable suspicion then you are the criminal. Without that you have NO authority to force anyone to do anything. You are creating without lawful purpose without probable cause in a consensual stop when the other does NOT CONSENT ALARM and a Nuisance threats with GUN

YOUR THE SCUMBAG, SCUMBAG>

§ 5503. Disorderly conduct.
(a) Offense defined.--A person is guilty of disorderly
conduct if, with intent to cause public inconvenience, annoyance
or alarm, or recklessly creating a risk thereof, he:
(1) engages in fighting or threatening, or in violent or
tumultuous behavior;
(2) makes unreasonable noise;
(3) uses obscene language, or makes an obscene gesture;
or
(4) creates a hazardous or physically offensive
condition by any act which serves no legitimate purpose of
the actor.
(b) Grading.--An offense under this section is a misdemeanor
of the third degree if the intent of the actor is to cause
substantial harm or serious inconvenience, or if he persists in
disorderly conduct after reasonable warning or request to
desist. Otherwise disorderly conduct is a summary offense.
(c) Definition.--As used in this section the word "public"
means affecting or likely to affect persons in a place to which
the public or a substantial group has access; among the places
included are highways, transport facilities, schools, prisons,
apartment houses, places of business or amusement, any
neighborhood, or any premises which are open to the public.

Cross References. Section 5503 is referred to in sections
3573, 8902 of Title 42 (Judiciary and Judicial Procedure).

jason

2 months ago

Harvey your my new best friend. Well said!

HeyG

2 months ago

Not a consensual encounter. You were on the public way not in your house. I'm not saying these officer were right but they were within their rights as peace officers to ask for ID. All an officer has to do is articulate that a crime is being committed and after the events of 9/11 it would easy to for a reasonable person to to understand this. You as a citizen don't have to consent to this it's not your call. Just like if you were driving if you fail to produce a license, you can be arrested. The law that you stated above is extremely broad and not difficult to prove. The supreme court has ruled on this so before you open your mouth understand the law. I as a police officer do not have to inform you of your rights unless I arrest you and ask you questions about the particular crime.

jason

2 months ago

Your wrong again... You Do Not Have To Show ID, (if your not in your car) Do NOT, Your simply just wrong. You need to stop with the whole 9/11 crap, just because terrorist attack the US, doesn't mean we should give up our rights and submit to oppressive regimes.

HeyG

2 months ago

Look up "terry stop" genius. Supreme Court ruling! You are wrong but not willing to be reasonable.