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10-22-2010, 03:21 PM   #1
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Arrested Photographer Vindicated!

First, I apologize if this has already been posted - I did do a search.

Interesting article and what Homeland Security has to do:
Photography - PopPhoto.com Offers Camera Reviews and Exclusive Photo Tips

Hopefully this will help others - both those who've already been arrested or ticketed and those who might have been in the future!

10-22-2010, 05:26 PM   #2
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Thanks Chip... That is a significant development. Please post this over in https://www.pentaxforums.com/forums/gatherings-photo-trips-groups/60281-photo...trictions.html

Mike
10-22-2010, 05:48 PM   #3
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Let's see if that ruling actually gets followed; I'm sure it'll take a LOT of time before the peeps guarding those signs finally get the word.
10-22-2010, 06:15 PM   #4
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QuoteOriginally posted by MRRiley Quote
Thanks Chip... That is a significant development. Please post this over in https://www.pentaxforums.com/forums/gatherings-photo-trips-groups/60281-photo...trictions.html

Mike
Done!!

10-23-2010, 04:46 AM   #5
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QuoteOriginally posted by legacyb4 Quote
Let's see if that ruling actually gets followed; I'm sure it'll take a LOT of time before the peeps guarding those signs finally get the word.
Very true... but at least now we can cite the ruling when approached. Of course, they left wiggle room since they mentioned an exception for a "local written rule, regulation or order." Even the wording of the exception is important though as it requires a "written" policy, not just some "word of mouth" rumor that the guards have heard. You can thus demand a copy of the written policy or at the very least they must be able to provide the title and number of the policy to you.

They also left room for the gendarmes to ask you about what you are doing if they think it's suspicious (which I guarantee they will), so while in the end, they may not be able to impeed you they can still legally hassle you.

I've attached a pdf of the ruling in "Musumeci v. U.S. Department of Homeland Security" (which as a government document is public property and is not subject to copyright) since it is extremely difficult to find a easily downloadable (w/o having to log into scribd or facebook) version.

Mike

Last edited by MRRiley; 11-26-2010 at 05:48 PM.
10-23-2010, 06:38 AM   #6
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This sounds like the same case as this story is about:

You Can Photograph That Federal Building
You Can Photograph That Federal Building: Civil Liberties Union and Homeland Security Reach Agreement - NYTimes.com
10-23-2010, 06:10 PM   #7
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QuoteOriginally posted by MRRiley Quote
Of course, they left wiggle room since they mentioned an exception for a "local written rule, regulation or order."
First of all, I want to thank you for posting the settlement agreement. It appears that the case was a slam-dunk for the photographer. The arresting officer(s) clearly exceeded the law.

That said, "wiggle room" hardly captures the legal concept here. The federal system in the United States creates many, many different layers of law. Broadly speaking, there are international laws, federal laws, state laws, regional laws, and local laws that govern everyone in the United States. The fact that federal law doesn't prohibit something doesn't mean that another law has no force, or ought to have no force. The settlement says that the federal law in question was not applicable to the arrest in question, and nothing more. That's not wiggle room--that's legal precision.

Of course, perhaps what you mean by "wiggle room" is that this is lawyer-speak. The settlement addresses one specific case, and the federal attorneys didn't want to make any claims beyond that specific case. Which is as it should be, at least within our legal system (which probably isn't as it should be). Lawyers need to write they way they do to get anything done: legal language is very precise, and frequently has meaning completely different from what lay-people understand it to mean. Which is a problem. If you mean "wiggle room" to be a pejorative term with respect to legal language, I'm completely on board with you although I don't know how the system could be improved; if you mean it to be pejorative toward this document, or its authors, then I must disagree.

QuoteOriginally posted by MRRiley Quote
You can thus demand a copy of the written policy or at the very least they must be able to provide the title and number of the policy to you.
"Demand" is a strong word. Demanding anything of an authority figure will probably be counter-productive, especially if you're dealing with an under-paid profession like police or private security. (Well, underpaid if they're decent officers.) I would recommend, instead of demanding anything, merely suggesting that you recall a similar case that the government settled for about $5000.

Here's how to deal with authority figures who confront you when you do something that you think is proper and reasonable: say something along the lines of, "hey, I didn't realize I was breaking the rules, and I don't want to be breaking the rules, so what's the rule about this?" If the rule doesn't make sense, ask for an explanation. "But I'm in public space, and it doesn't seem like that building has any expectation of privacy. Was that rule really meant to apply to me?"

If the officer takes a hard line, you have two choices: stand up for what you believe, let them process you and then get lawyers involved; or walk away. This photographer received a settlement of $1500 for being arrested and having some of his equipment confiscated. Is that worth the stress of being arrested, and months of dealing with lawyers, to you? I doubt it would be to me.

Of course, if you believe you are in the right and you want to fight the system, I strongly suggest trying to organize more photographers to do the same thing. Walk away after the initial confrontation. Then come here, post a description of what happened, and try to get people in your area to get together and do the same thing. Then go back and do the same thing. I, for one, would be willing to drive a few hours to take pictures of a building that didn't interest me, if another photographer was being hassled about it. Officers are practical when it comes to gray areas of enforcement; if too many people do it, they won't enforce it. Like driving 5 mph over the speed limit.

And I'm a professional security guard, so I can say that with authority.

Cheers!
10-24-2010, 05:53 AM   #8
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QuoteOriginally posted by JonPB Quote
That said, "wiggle room" hardly captures the legal concept here. The federal system in the United States creates many, many different layers of law. Broadly speaking, there are international laws, federal laws, state laws, regional laws, and local laws that govern everyone in the United States. The fact that federal law doesn't prohibit something doesn't mean that another law has no force, or ought to have no force. The settlement says that the federal law in question was not applicable to the arrest in question, and nothing more. That's not wiggle room--that's legal precision.

Of course, perhaps what you mean by "wiggle room" is that this is lawyer-speak. The settlement addresses one specific case, and the federal attorneys didn't want to make any claims beyond that specific case. Which is as it should be, at least within our legal system (which probably isn't as it should be). Lawyers need to write they way they do to get anything done: legal language is very precise, and frequently has meaning completely different from what lay-people understand it to mean. Which is a problem. If you mean "wiggle room" to be a pejorative term with respect to legal language, I'm completely on board with you although I don't know how the system could be improved; if you mean it to be pejorative toward this document, or its authors, then I must disagree.
Thanks for the insight Jon.

When I used the term "wiggle room" I was refering to the fact that the ruling refered to photography of federal buildings and properties being permissable under the cited federal statute while allowing that local "rules (etc) may prohibit it. This is "wiggle room" for authorities since it doesn't invalidate local federal, state or local restrictions on photography. Additionally it does not "preclude" the judges in each federal courthouse from establishing a local rule prohibiting photography, nor does it establish any threshold where such restrictions would be reasonable. Most importantly, it does not "preempt" such rules as invalid and without force under the freedoms guaranteed by the Constitution.

In fact I have pretty much come to the conclusion that the ruling is pretty useless when it comes to protecting our right to photograph in public precisely because it left this 'wiggle room" and did not preempt local rules which infringe the First Amendment.

QuoteOriginally posted by JonPB Quote
"Demand" is a strong word. Demanding anything of an authority figure will probably be counter-productive, especially if you're dealing with an under-paid profession like police or private security. (Well, underpaid if they're decent officers.) I would recommend, instead of demanding anything, merely suggesting that you recall a similar case that the government settled for about $5000.

Here's how to deal with authority figures who confront you when you do something that you think is proper and reasonable: say something along the lines of, "hey, I didn't realize I was breaking the rules, and I don't want to be breaking the rules, so what's the rule about this?" If the rule doesn't make sense, ask for an explanation. "But I'm in public space, and it doesn't seem like that building has any expectation of privacy. Was that rule really meant to apply to me?"

If the officer takes a hard line, you have two choices: stand up for what you believe, let them process you and then get lawyers involved; or walk away. This photographer received a settlement of $1500 for being arrested and having some of his equipment confiscated. Is that worth the stress of being arrested, and months of dealing with lawyers, to you? I doubt it would be to me.

Of course, if you believe you are in the right and you want to fight the system, I strongly suggest trying to organize more photographers to do the same thing. Walk away after the initial confrontation. Then come here, post a description of what happened, and try to get people in your area to get together and do the same thing. Then go back and do the same thing. I, for one, would be willing to drive a few hours to take pictures of a building that didn't interest me, if another photographer was being hassled about it. Officers are practical when it comes to gray areas of enforcement; if too many people do it, they won't enforce it. Like driving 5 mph over the speed limit.

And I'm a professional security guard, so I can say that with authority.

Cheers!
"Demand" is precisely what we need to do when "security personnel" start citing vague rules and prohibitions. I'll agree that I would start off by "asking" but since they seldom know that information it will generally rise to the point where they either let me go or actively prevent me from leaving, at which point the "asking" would become a demand under my constitutional rights. I would also inform them that they "could" be held personally liable for violating my civil rights.

Why take such a hard line? Because this has gotten out of hand precisely because the majority of people ignorantly and meekly give in when their rights are wrongfully infringed. I also would not have settled for a $5000 settlement. My First Amendment rights are worth much much more than that and it is going to eventually take someone pressing that fact to the point of a clear and binding ruling that applies nationwide and which preempts local enfringements as well.

Mike

p.s. by the way... I will never start out a conversation with a security guard or officer by admitting that I might be breaking some rule or other. Saying "hey, I didn't realize I was breaking the rules" implies that the rule exists and is valid. That just reinforces their mindset that there is a rule being broken and it gives away your presumption of innocence.


Last edited by MRRiley; 10-24-2010 at 06:04 AM.
10-24-2010, 09:13 AM   #9
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You just bought a shift-lens to do WHAT?!

The real problem is that the stated reason for promulgating such laws/rules is both irrational and unreasonable.

WHY is it a threat to public safety to photographically record an image of a public edifice after all these years of publishing same? To prevent a reconnaissance for a terrorist's bomb? Ridiculous.

To be effective, the rule would also have to apply to things such as artistic sketches and . . . try this one on for size . . . "Oh, by the way, Officer, I've got a photographic memory!".

It serves no purpose to attempt to control things when it's the use to which they're put that threatens us. As a society we've become unwilling to protect ourselves from actions, so we futilely attempt to control things as a soporific surrogate reaction.

You just bought a shift-lens to do WHAT?!

H2

Last edited by pacerr; 10-25-2010 at 02:08 PM.
10-25-2010, 01:54 PM   #10
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Well it is very timely that you posted this. Thank You.

I was recently asked by a company who did some facade work on the FBI building in NYC, to photograph the building. Just outside. I told them right away that it could be difficult due to homeland security rules. (I had no knowledge of the exact laws, I was just guessing).

With this cleared up now, I think I may give it a shot.
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