[duanekerzic]

Hi,

Yes Carlos interviewed me at least 2 times. I think we had a total of 3 or 4 phone conversations but I wasn't the one taking notes, he did fact check everything with me. I also read his blog right after he posted it to check it for him. I found two small things which were promptly corrected.

I have requested the arrest reports. When I get them I will post them on my site so you can have Officer "Jackboots" side of the story. I'm sure it will leave out lots of details. I have also requested all the video. I will post as much of that as possible. I'm sure it'll be boring looking at me sitting in a holding cell handcuffed to the wall for an hour or so, demanding to be allowed to use the bathroom, requesting a supervisor to look at my wrist.

I have contacted one lawyer in NYC that used to be an ADA and now handles police harassment cases. As soon I mentioned the handcuffs he knew exactly what was done. Friends of mine that are LEO's have told me about this in the past. They put the handcuffs on with the chain facing out on one hand. I didn't want the officers charging me with resisting arrest, I wanted this to be solely about them telling me to delete my photos, my definitive refusal to comply and my telling them to find a judge to make me delete the photos. I also didn't want to give this guy an excuse to hit me with something or put the handcuffs on is such a way as to hurt me. When they were letting me go I informed the officer that I was going to have to file complaints about how he handcuffed me since he refused to correct it when I requested he make the correction. He told me he was doing what he was trained to do. Also the Sgt. that took my complaint tried to make this all my fault.

This way of handcuffing someone makes the handcuff want to spin around which causes bruising. If you ever watch "Cops" you'll almost always see the officers adjust the handcuffs using a pen as a gauge after cuffing someone. This is the proper adjustment procedure, handcuffs are just supposed to protect the officer from you, they aren't supposed to be used for punishment or harassment.

There was a dog, it makes for a better story.

The trespassing signs are located about 4' off the floor. When you are in the middle of a crowd you can't see them. I have photographed some of them and the absences of some of them. I have also made a diagram showing my travels on the platform and the location of the closest no trespassing sign, its posted on my website. I did not pass a no trespassing sign when I was on the platform. There are no 'no photographing" signs. While I agree I was on private property, all transit systems are private property by the way, it is a public venue. The public is freely admitted. Amtrak is required by executive order and 49 CFR 701 to put all of it's regulations and things that effect how it interacts with the public in the public domain. I can find no regulations regarding photography. I have filed a FOIA request with Amtrak about this issue and if they produce a policy or regulations I'll post it. I did my best to be objective on my web site and make sure it's easy to separate my feelings and opinion from statements of fact.

A few days before I was told by a NJ Transit Conductor that I wasn't allowed to take photos. This is not NJ Transit's policy. I complained to NJ Transit's Customer Service and they provided me with the information that photography is allowed on all NJ Transit property that is open to the public. NJ Transit has a lease with Amtrak for the use of Penn Station NY and I rode a NJ Transit Train into the station. I have a copy of the letter from the NPPA to NJ Transit about NJ Transit's proposed ban on photography and here is a link to the announcement they are not putting it in place New Jersey Transit Withdraws Proposed Photo Ban, I had about 5 NJ Transit tickets for travel between New Brunswick and Penn Station NY in possession at the time of my arrest.

I'm willing to answer questions but I'm not that much of a forum guy. You are also going to have to put up with my English and sometime misspellings and not attack me. I might need someone to send me an email to come on here to answer questions.

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Last edited by duanekerzic; 01-02-2009 at 02:59 PM.

[duanekerzic]

I have been contacted by someone that had the same experience I had in Penn Station NY (PSNY). The set of facts between his case and my case, I have spoken with the lawyer that handle the case, are almost identical. There are a few differences because he had a witness, I only have the surveillance video; he was given a desk appearance ticket and I only got a summons; he missed his train and some time from work, I missed a social event; he was taking photos of the signals and track switch gear, I was taking photos of the trains. Those are about the only material differences.

This persons criminal charges were dismissed. The ADA for the City of NY checked and could find nothing prohibiting photography anywhere in PSNY. His lawyer sued Amtrak and they settled out of court. He got $8K for his trouble.

I haven't decided exactly how far I want to go with this. Litigation has a way of taking over your life. At this point there needs to be some definitive court rulings on the law.

One other thing. I got a note from someone in the UK about this. He told me the police harassment of rail fans ( I don't consider myself one ) is also at an all time high there. He very correctly points out that a railfan is the transit polices best friend. It's a set of trained eyes keeping a look out for things that are wrong.

All the extra cops and such that have been put in place since 911 aren't going to make you any safer. The thing that will really make you safer is a population of people that are looking out. The best way to defend the country is a well informed public. Remember that the number of surveillance cameras in London is the most of any city in the world. Yet the guys that bombed the subway there constructed their bombs right in the center of the city and no one noticed. I'd bet the next door neighbors noticed something that they didn't know to report.

[stewart_photo]

(snip) Also, as Wheatfield states, Mr Kerzic says that he was NOT in an area marked with any "no trespassing" signs. (snip)

In his letter, Duane Kerzic said he was taking photographs on the "platform for Tracks 9 and 10" and later said he was shown "a 'No Trespassing' sign on Platform 9 & 10."

Regardless, there are other inaccuracies in your version of the story as well. For example, you said he was "placed under arrest and thrown into an Amtrak Police holding cell." However, Kerzic said nothing about a holding cell, but instead said he was issued a summons (a ticket) and then "left the station and conducted my business in NYC."

The reason I highlighted Kerzic's comment about putting his hands behind his back without being asked is that handcuffs are seldom involved in situations involving a mere summons. How often are people handcuffed for a traffic summons, for example? Kerzic, by his own actions, invited this bit of his ordeal, which suggests he was a bit more confrontational with police officers than his story portrays himself.

And the trespass charge was ulitmately more likely the result of that confrontational attitude than his photography - which makes the photography more incidental than a real issue in this situation.

stewart

[stewart_photo]

(snip) You always seem to think that the police can do no wrong. (snip)

No, I just don't subscribe to the notion that police officers ARE always wrong in these incidents. Here we have a person (Duane Kerzic) giving conflicting stories of an incident, one version in his letter to officials and another to Carlos Miller as noted later in this thread (message #23), yet several here have obviously assumed his various stories (plural) are true and that the police officers were simply thugs with "jackboots and brownshirts," as Wheatfield put it.

And, to further inflame sentiments against police, we have yet one more version of the incident (Mike's or MRRiley's) containing statements which don't coincide with at least one version of the story by Duane Kerzic - his written description in the letter on his website.

stewart

[stewart_photo]

(snip) I take that as a sign that he had done no wrong and basically challenged the cops to arrest him because he knew they were in the wrong. (snip)

You might be right. Perhaps Kerzic decided to be confrontational when first approached by the police officers, with at least one of those officers deciding to be confrontational in return - asking him to delete the photos taken as a result of a trespass and ultimately issuing a trespass summons when Kerzic continued in a confrontational manner.

Regardless, if Kerzic wants to "challenge" police officers in the future under the premise he has done no wrong, he best be absolutely certain he has actually done no wrong (like trespassing) first.

stewart

[stewart_photo]

(snip) I wanted this to be solely about them telling me to delete my photos, my definitive refusal to comply and my telling them to find a judge to make me delete the photos. (snip)

Thanks for visiting the forum. So you admit seeking a confrontation with police officers over photography? Why didn't you, when asked what you were doing, simply say you were taking pictures of the trains and either continue or walk away, which is what most people would have done and would have likely ended the situation immediately without further conflict?

More importantly, since most others taking photos in Penn Station are not bothered by police, what else did you do to provoke that confrontation with police? In other words, what made you, out of all those many other people taking photos every single day, an initial target and an ongoing target of interest for those police officers?

stewart

[Dhruba]

I hope ACLU takes up this case.

[duanekerzic]

Thanks for visiting the forum. So you admit seeking a confrontation with police officers over photography? Why didn't you, when asked what you were doing, simply say you were taking pictures of the trains and either continue or walk away, which is what most people would have done and would have likely ended the situation immediately without further conflict?

More importantly, since most others taking photos in Penn Station are not bothered by police, what else did you do to provoke that confrontation with police? In other words, what made you, out of all those many other people taking photos every single day, an initial target and an ongoing target of interest for those police officers?

stewart

I was not looking for a confrontation with anyone and did not admit to such in any terms. Perhaps you can show me where it is legal for police officers in the United States to confront people about taking photos in public places and demand that they delete the photos. Please show me where it's within a police officers powers to tell anyone under any circumstances to delete photos. Dude the only person that can tell you to delete photos in this country is a judge.

Even if you take photos while trespassing it's still not within anyone's right to demand you delete the photos. Just because there is a no trespassing sign doesn't mean that it's a legal sign. They have no trespassing signs all over the waiting room in Penn Station. The police officers where looking for a confrontation. I did state I was taking pictures of the trains. I would have continued on my way off the platform if they had not told me I couldn't leave and made me put my backpack on the ground so the dog could sniff it.

More importantly lots of people taking photos in Penn Station are bothered by police. I've gotten calls from Amtrak Conductors about the behaviour of Amtrak Police in the stations and on the trains over people taking photos of their children.

Perhaps you need to study the law a bit more. Perhaps you need to read a few other forums about what is being done to photographers taking photos in public and learn that the police are and have historically harassed photographers. The reason for this is photographs don't lie and the police know this. Remember Rodney King? I'm not saying that Mr. King didn't deserve getting arrested. I'm also not saying he didn't resist arrest, he did. I am saying that he was beaten in a manner that was wrong and that is what the triers of fact found. If there wasn't a video tape of the incident with Mr. King the police would have done what they normally do, lie about what happened.

Did you know it's not even a crime in Germany to take a photo in a public place. But then living in Germany you probably don't know much about our First Amendment that protects the act of making a photograph. "The visual arts, including photography, are expression protected by the First Amendment. See Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 569 (1995) (recognizing that the First Amendment protects the "painting of Jackson Pollock"); Joseph Burstyn, Inc. v. Wilson, 343, U.S. 495, 501-02 (1952) (holding "that expression by means of motion pictures is included within the free speech . . . guaranty of the" First Amendment). Just as the First Amendment protects the newsgathering process in addition to the final news report, it protects both publication of visual art and the process that culminates in a piece of visual art. See Amato v. Wilentz, 753 F. Supp. 543 (D.N.J. 1990), rev'd on other grounds, 952 F.2d 742 (3d Cir. 1991) (holding that state action prohibiting the filming of a movie violated the First Amendment); cf. Gannett Satellite Info. Network, Inc. v. Berger, 894 F.2d 61, 69 (3d Cir. 1990) (holding that "[t]here is no question that" a regulation restricting the sale of newspapers burdens free expression). It is not just photographs that are protected expression, therefore, but also the act of taking a photography - the very step in the expressive process that Amtrak's actions prohibit."

Amtrak does have a "First Amendment Policy". It only covers such things as protests and demonstrations, also part of the First Amendment as First Amendment Activity. Imagine that it's legal to have a protest of demonstration on Amtrak property. This is because even though the property is private in that it belongs to a publicly owned private corporation it is also a limited public venue because it's open to the public like a sidewalk.

Stewart you suffer from selective reading. It also says in the picture our train announcement to take photos from safe places, like parking lots, sidewalks and stations.

Stewart I assure you that a summons for trespassing is not like a traffic summons. A traffic summons is in traffic court. This summons is in criminal court. I also assure you that I was placed in a holding cell and handcuffed to the wall. Summons means that you are summoned to appear in the court indicated to answer the charge. The reason cops don't handcuff people most of the time for traffic summons is they are in the car where they can't hurt the officer. The officers threatened to arrest me if I didn't delete the photos. I could have played the game. But how do you know the officers aren't smart enough to figure out that you didn't delete the photos? How do you know they aren't smart enough to make you take some photos while they watch so you can't undelete them if you do? How do you know they aren't going to take the CF card out and damage it? Now lying to a police officer in the preformance of his job is also a crime. You probably didn't know that due to what I read as narrow mindedness.

The photography was the real issue in this incident. Then after they figure out they can't charge me with "illegal photography" since there isnt' such a thing they find something else to charge you with. Also the law for trespassing is "140.05 Trespass. A person is guilty of trespass when he knowingly enters or remains unlawfully in or upon premises. Trespass is a violation." Just by the very questions they asked me and my reactions it should be obvious that I didn't see any signs. Also as prevously pointed out I did have license and permission to be on the platform because of my very arrival on that platform and was there lawfully.

When a store closes your license and permission to be in the store is over. Did you ever notice how many times they anounce when the store is closing. They have employees walk around and tell people the store is closing it's time to leave. So even if I did see a no trespassing sign I did enter on the platform with license and permission. At no time was I informed that my license and permission to be on the platform had been revoked. So I could not be there KNOWINGLY without license and permission.

One day this will happen to you. There is a reason this is titled "another". The photo police will show up and make you very miserable. I hope they treat you better than they treated me.

[poco]

How would the Civil Rights movement turned out had Rosa Parks moved out of her seat then written a letter to officials rather than subject herself to arrest?

I don't think you can compare the two. Photography harassment is an individual random event of abuse of power, not a systematic repression, and standard governmental practice.

There are other random abuses of power everyday in other aspects of law enforcement. The way these other abuses are dealt with is documentation that leads to pattern identification. Slow and painful to watch, but I don't see another way.

[poco]

Write to officials? You might as well as write your letter and toss it in a garbage can.

Is it any better than rolling the dice with lawyers?

[poco]

How do you know they aren't smart enough to make you take some photos while they watch so you can't undelete them if you do?

You would have to take a enough photos to fill the disk before the deleted files would be over written. Just the way the media works because it has a limited life.

If you want to play what if, what if you were seriously hurt? You never know what type of person is under the uniform. The fact they are in anyone's face on this, makes them suspect. I just don't see a reason to put yourself in a less powerful position. It seem the more powerful position is you outside of their reach.

I am totally on your side that photographers are harassed. I am totally on your side that when this happens it is a first amendment issue. I just think the way to handle it is not to confront were the authorities can sideline the issue. If you go to court, the police will be trying to prove trespassing and you will have to defend for that, not your first amendment rights. Without a good (expensive) lawyer to intertwine the two, I think it will be hard to even get to the issue at hand.

My best wishes for you resolving this to your satisfaction.

[MRRiley]

In his letter, Duane Kerzic said he was taking photographs on the "platform for Tracks 9 and 10" and later said he was shown "a 'No Trespassing' sign on Platform 9 & 10."

Regardless, there are other inaccuracies in your version of the story as well. For example, you said he was "placed under arrest and thrown into an Amtrak Police holding cell." However, Kerzic said nothing about a holding cell, but instead said he was issued a summons (a ticket) and then "left the station and conducted my business in NYC."

The reason I highlighted Kerzic's comment about putting his hands behind his back without being asked is that handcuffs are seldom involved in situations involving a mere summons. How often are people handcuffed for a traffic summons, for example? Kerzic, by his own actions, invited this bit of his ordeal, which suggests he was a bit more confrontational with police officers than his story portrays himself.

And the trespass charge was ulitmately more likely the result of that confrontational attitude than his photography - which makes the photography more incidental than a real issue in this situation.

stewart

Stewart, Those signs were not on the area of the platform where Mr Kerzic was arrested. Further, if your assertion is that they apply to the entire platform then I would counter that they would not, as a matter of routine, be applied to ticketed passengers, otherwise every passenger would/could be arrested for trespassing as soon as they step foot anywhere on the platform. You know as well as I do that those types of sign are in place to notify people such as people w/o tickets, kids sneaking in, bums looking for a place to sleep, etc that they have no right to be there. Mr. Kerzic on the other hand had a legal right to be exactly where he was since he had just gotten off of the train.

Further, legitimate "trespass" charges in these types of environments are almost alway predicated by a demand by the property owner or representative to vacate/exit the property which the subject then fails or refuses to follow. The question "Did you see the No Trespassing signs?" is not a demand to leave. Indeed the average person with a ticket to be there , if asked such a question, would not take it to be a demand to leave even if that was the officer's intent. Even if they saw a sign and aknowledged that they did, they would not assume it to apply to them.

Finally, the detail about the holding cell (MY assumption that it was an Amtrak one) was on Carlos Miller's site and has been confirmed above by Mr. Kerzic himself. He simply left the details between the arrest and the point where he was issued the citation and released.

[Douglas_of_Sweden]

... he was approached by Amtrak policemen ...

First, thanks for an interesting thread.

Some (maybe naive) questions:

Amtrack is a railway company, right?
Do they have their own policemen?
Do these have the same authority as those working for the regular police force?
Do they have the same training?

I'm asking because from my perspective as a foreigner, I'm used to different conditions. Here in Sweden companies for sure have guards, but they have not at all the same authorities as a policeman, and only a few months of training (as compared to several years). Doesn't matter if it is a privately owned company or a governmental company. If the guards cannot solve a problem within their very limited authorities, they have to call the real police. So I can't help wondering about the actual conditions in the US when I read this. Do you really have fully private police forces that are in all legal meaning the same as a regular police force?

[MRRiley]

First, thanks for an interesting thread.

Some (maybe naive) questions:

Amtrack is a railway company, right?
Do they have their own policemen?
Do these have the same authority as those working for the regular police force?
Do they have the same training?

I'm asking because from my perspective as a foreigner, I'm used to different conditions. Here in Sweden companies for sure have guards, but they have not at all the same authorities as a policeman, and only a few months of training (as compared to several years). Doesn't matter if it is a privately owned company or a governmental company. If the guards cannot solve a problem within their very limited authorities, they have to call the real police. So I can't help wondering about the actual conditions in the US when I read this. Do you really have fully private police forces that are in all legal meaning the same as a regular police force?

Thanks Douglas... now, to answer your questions...

1. Amtrak is the US's coast-to-coast Passenger Railway system. There are numerous "regionals", but all of the long haul routes and many inter-regional routes are run by Amtrak, which is coincidentally a wholly US government owned company (as measured by preferred stock).

2. Yes, they have their own police force which goes back to "The Pinkerton Agency"

3. Railroad police officers are certified law enforcement officers and carry full police and arrest powers ON railroad property. Their authority extends off of railroad property in some states (don't ask me which ones).

4. Amtrak's police officers are trained at the FBI's LE Training Center at Quantico, Virginia. Hard to tell what training police forces of the regional railroads have...

For more details about "railroad police" in general read this Railroad police - Wikipedia, the free encyclopedia. Info about the Amtrak Police specifically can be found at Amtrak Police - Wikipedia, the free encyclopedia

Generally in this country, security personnel working for a private company are NOT deemed "police" nor do they have arrest powers. Exceptions exist, of course, where the security guards happen to be off-duty regular police working a second job, or where they have been "deputized" for some special reason. However, the average rent-a-cop security guard has no "police" power. The most they can do is detain you until the real police show up, whereupon they file a complaint against you on behalf of the property owners.

Amtrak then, being both a railroad and a wholly US government owned company, is an odd duck. Things are further complicated due to the fact that Amtrak owns very few of the tracks they use. Most of their trains travel on freight rails leased from the myriad freight railroads scattered across the US. This means, those companies railroad police also have jurisdiction over Amtrak's right of ways. oh what a tangled web...

[duanekerzic]

Thanks Douglas... now, to answer your questions...

1. Amtrak is the US's coast-to-coast Passenger Railway system. There are numerous "regionals", but all of the long haul routes and many inter-regional routes are run by Amtrak, which is coincidentally a wholly US government owned company (as measured by preferred stock).

2. Yes, they have their own police force which goes back to "The Pinkerton Agency"

3. Railroad police officers are certified law enforcement officers and carry full police and arrest powers ON railroad property. Their authority extends off of railroad property in some states (don't ask me which ones).

4. Amtrak's police officers are trained at the FBI's LE Training Center at Quantico, Virginia. Hard to tell what training police forces of the regional railroads have...

The correct name for Amtrak is The National Railroad Passenger Corporation. It was formed out of a bunch of failing passenger railroads back in the '60s or 70's. Take a bunch of companies that can't make money, put them together as one company, give them a federal subsidy and you have success. In NJ we have several rail

As Mike points out there are lots of railroad police in the US. In Penn Station NY there are a bunch of police forces that operate. Amtrak Police, NY City Police, Port Authority of NY and NY Police, Long Island Railroad Police, Metropolitan Transit Authority Police, NJ Transit Police to name the ones I know about. Depending on what part of the station you are in there might be different police forces you have to interact with and their duties may overlap. Amtrak owns the North East Corridor Line in NJ and NJ Transit leases the use from Amtrak but owns most of the stations.

In NJ the local trains are operated by NJ Transit Corp which is a private corporation that is wholly owned by the State of NJ. So in some ways it's like Amtrak but is owned by the state vice the federal government. There are also trains that operated between Trenton and Philadelphia by SEPTA, South East Pennsylvania Transit Authority and PATH, Port Authority Trans Hudson Tubes. There are also a couple of scenic rr's that don't serve a true transportation role.

I've been in touch with 3 lawyers to date, 1 that wants my case, 2 that are part of national organizations that track this kind of abuse of power. They all say the police are wrong. The national organization lawyers have been in contact with the NYCLU but the person I'm supposed to talk to there is away till Jan 5. I don't know if the NYCLU is interested in the case or not.

I'll share what one of the lawyers said. The only way something like this stops happening is that enough people sue the police over time and they change the training of the police because they are paying out so much in settlements or someone takes the case all the way a ruling is issued by a judge.

I used to be a computer person and know a bit about disk operating systems. Most cameras with CF cards use a FAT 12 or 16 operating system. Once an area is marked as available it is subject to be rewritten at any time. The rest of the card does not have to be filled before the now deleted area is overwritten. Which is why if you ever have a failure of a disk you stop writing data on it until recovery efforts have been completed. Also there is no limitation on the life of a CF card. They can be erased and rewritten indefinitely until for some reason they fail.