interesting views
interesting views
The pricks surely don't reduce the difficulty of their jobs by being so.Originally Posted by D. Bryant
Rick "who sympathizes with the non-pricks" Denney
Callifornia is out to make $$$ anyway it can. Fines are a big income producer. we've just made the blood alcohol level for DUI's ridiculously low and there is a much greater use of checkpoints in metropolitan areas to enforce it, garnering fines & vehicles to fill the State coffers. These things have nothing to do with public safety---take 20 officers off the street to man a checkpoint to nab an extra 10 drivers with Nyquil give oh so many more drivers who are swerving all over the road a chance to kill as there are fewer cops on the beat to stop them.
"I would feel more optimistic about a bright future for man if he spent less time proving that he can outwit Nature and more time tasting her sweetness and respecting her seniority"---EB White
Any time I get involved in a policy discussion, I recommend that the policy be related to the objective. If a policy is needed because of large movie crews creating a disturbance and inhibiting a park's other users, then what is it about the production that caused the disturbance?
If it's the size of the crew, then limit that in the policy. If it's the size of the vehicle, then limit that. If it's the quantity of equipment, then limit that. If it's the flashing and glare from reflectors, then disallow those. I don't see how profit and sale is an issue in any case, simply because as policy it's too hard to discover and enforce.
"Photographic activities that disturb park operations are prohibited without a permit. "Photographic activities" are defined as all the people and equipment required to produce any one prospective still photograph or motion-picture scene. "Produce" means the set up, preparation, adjustment, and removal of the people and equipment, whether or not a photograph or motion picture scene is actually made. "Disturbing park operations" is defined as photographic activities that block any normal pedestrian pathway, extend into areas from which people are prohibited, require stand-mounted lights, more than one lighting device not directly mounted to the camera, more than one reflector device, equipment that requires wires, cable, ropes, or other similar apparatus laid on the ground, or more than two people handling photographic and lighting equipment. No single piece of photographic equipment may be longer in any one dimension than six feet when carried or nine feet when in use. No photographic equipment may be carried in carts, vehicles, or other conveyances otherwise prohibited in the park area."
Then, give the ranger a digicam or a video camera. They can collect their own evidence.
This seems to me language that is testable and reasonable (and adjustable based on the real issues at a given park). By defining limits on the apparatus required for a single photo or scene, you avoid problems with clubs and such like. It's also easy for anyone to understand the requirements before showing up, or even traveling to the area. And it does not require any evaluation of what cannot be evaluated by the enforcement officer.
Rick "knowing that all language is imperfect, but some is more imperfect" Denney
No, there's no such thing as "uncontested" - the government has the duty to prove every element of a crime, beyond a reasonable doubt. It has to prove that there were photos taken, and furthermore the photos were for profit as part of a commercial shoot. The card helps prove that.
No one said there's no such thing as an "illegal" seizure. I said - repeatedly - the legality of the seizure is judged by the court AFTER the seizure.
[QUOTE=rdenney;813176]what is it about the production that caused the disturbance?[/i]
If there was one ... in this case, I suspect the ranger was just looking for someone to push around. I would like to know what caught the ranger’s attention, though ... maybe a collapsible reflector?
In theory, I’m all for it. But in practice, this hasn’t usually worked out. Many, many agencies with considerable experience (e.g., the BLM) have tried it and failed miserably when trying to cover what I’m now calling “small scale” still photography (for lack of a better term).If it's the size of the crew, then limit that in the policy. If it's the size of the vehicle, then limit that. If it's the quantity of equipment, then limit that. If it's the flashing and glare from reflectors, then disallow those.
Clearly, there is no difference in impact solely because the photography is for “profit and sale”; what if a photographer goes to a park for personal photography and suddenly comes across a great shot that he wants to sell? Does his camera suddenly emit deafening shrieks that kill the wildlife and drive all the other visitors from the park? And absent that shriek, how can you tell he’s decided to sell the image? So the regulation encourages arbitrary and possibly discriminatory enforcement, and I think it and others like it would ultimately be found void for vagueness if someone had the interest, time, and money to pursue it.I don't see how profit and sale is an issue in any case, simply because as policy it's too hard to discover and enforce.
I again direct people to the section on California State Parks in the article I linked earlier. In particular, look at the citations; the regulation doesn’t match what’s in the rulemaking record. The intent wasn’t at all to regulate filming or photography solely because it’s for “profit and sale”, but rather, to regulate disruptive activities. Obviously, requiring a permit for activities that are “potentially damaging or disruptive” because it doesn’t give fair warning. The author apparently thought “for profit and sale” had equivalent meaning and used those words in attempt to get around the problem, not realizing that this wording was just as bad.
The California Administrative Procedure Act was created because the legislature felt there were too many regulations, and that some of them were not only unnecessary, but also unreasonably burdensome, and in many cases the language was not clear to those who would enforce the regulations and those who must comply with them. Accordingly, the Act required that, among other things, new regulations be clear and convincingly demonstrate their necessity. The regulation here would seem a poster child for noncompliance. How did this happen? Almost no one, including me, had any idea that this regulation had been proposed. How many people here regularly review the California Regulatory Notice Register? And in 1990, you had to go to a law library to do so ... There was one substantive written comment (which pertained to motion pictures rather than still photography), and only a handful of people where at the one public hearing. And so it always seems to go down at state and local agencies ... Someone with good intentions drafts a law that’s half thought out, gets it enacted or adopted without comment, and we’re stuck with the unintended consequences.
Again, it was not the intent of §4316 to require permits for photography simply because it’s for “profit and sale.” Unfortunately, “commercial” photography seems to always conjure up images of large crews, support vehicles, models, sets, security, and whatever (take a look at any permit application), and people like most of us here never even come to mind. Never attribute to malice what’s adequately explained by incompetence.
And yet again, we have two options for §4316: ask the DPR to change it (free, but they won’t do it without a gun to their heads), or sue to have it invalidated (which involves a fair amount of money).
In theory, I agree with this approach, and this is arguably one of the better first drafts I’ve seen. In practice, it invariably has unintended consequences. This list would require me to get a permit for a lot of the photography I do, and I definitely consider myself a small-scale operation that’s not injurious to park resources or disruptive to the visitor experience."Photographic activities that disturb park operations are prohibited without a permit. "Photographic activities" are defined as all the people and equipment required to produce any one prospective still photograph or motion-picture scene. "Produce" means the set up, preparation, adjustment, and removal of the people and equipment, whether or not a photograph or motion picture scene is actually made. "Disturbing park operations" is defined as photographic activities that block any normal pedestrian pathway, extend into areas from which people are prohibited, require stand-mounted lights, more than one lighting device not directly mounted to the camera, more than one reflector device, equipment that requires wires, cable, ropes, or other similar apparatus laid on the ground, or more than two people handling photographic and lighting equipment. No single piece of photographic equipment may be longer in any one dimension than six feet when carried or nine feet when in use. No photographic equipment may be carried in carts, vehicles, or other conveyances otherwise prohibited in the park area."
New York City tried something like this, and though the final version was much better than the first, a strict reading reveals that a permit is needed to set a camera on a tripod or set a camera bag on the ground. Similarly, in a document guiding enforcement personnel, the US Forest Service assembled an elaborate list that could be read to bar anything other than a camera and tripod.
Incidentally, preventing either of these is the only allowable objective, because the DPR’s mandate here is limited by §5003 of the Public Resources Code. So unless ”substantial evidence” can be presented that an activity has either of these effects, the DPR cannot regulate it. I think many of the things in this list would therefor be outside the bounds of regulation.
So despite its many shortcomings, I’d much rather have something like the language of 36 CFR 5.5(b).
Perhaps a list like this could serve as starting point for a diverse group who can anticipate unintended consequences on many different types of filming and photography. Unfortunately, in attempt to cover all the bases, the wording always seems to get more complex, and excessive complexity was at the core of APA’s creation. But perhaps past efforts just haven’t involved the right people.
The ranger testifies that the photographer was at the park and took pictures—unless the photographer commits perjury and denies it (which would be foolish), the ranger’s testimony would be uncontested. This happens all the time with far less trivial matters—review a few court opinions, especially §1983 actions, in many of which the material facts are undisputed.
The elementary breakout you present as gospel is one person’s opinion. Please don’t get me wrong—Brian could well be right, but absent a similar case where a such jury instruction has actually been given, it’s a bit of a stretch to treat such a breakout as clearly established. And different judges (at the urging of different prosecutors and defense attorneys) might see different elements. Far more significant, it would seem to me, would be that pictures were taken in a state park, and that they were taken on the day of the citation—recall that, with few exceptions, a peace officer can only issue a warrantless citation for an offense committed in her presence. Some judges might make such a breakout, but a review of California’s standard instructions leads me to believe it’s equally likely that no breakout would be made for something this simple. Regardless of the breakout (or lack thereof), the People would need something to show that the defendant was the one who took the pictures.
Again, let’s return to Earth from la-la land ... this is most likely an infraction, so even if it goes to trial, there will be no jury and no instructions, so we’ll never have a definitive call unless Merry22 decides to file a §1983 action. Unless the ACLU or someone similar get involved, this ain’t gonna happen.
As Brian Shaw put it, it’s ranger testifies, photographer questions ranger, photographer perhaps testifies that photography wasn’t for “profit and sale”; judge decides. It’s hardly presentation of arguments before the supreme court.
If you’re simply saying that the legality of the seizure has not yet been formally determined, we don’t disagree. But given that, the seizure at this point is neither officially “legal” or “illegal”—yet you have insisted it is the former. That’s equivalent to saying that an arsonist’s actions are legal until he’s convicted ...No one said there's no such thing as an "illegal" seizure. I said - repeatedly - the legality of the seizure is judged by the court AFTER the seizure.
A defense attorney to whom I mentioned this said the justification for the seizure was crazy. But he immediately added that cops do this all the time and nearly always get away with it—which I think several of us have already readily acknowledged. So if your definition of a “legal” action is that the actor gets away with it, the seizure here was probably fine. As usually is arson. On that point we disagree.
Again, I’m amazed that so many people here are so quick to stand up for a chicken-shit seizure that was far more likely simply to push someone around than to bolster a case. Though I hope it doesn’t happen, it would be interesting to hear the tune you’d sing if this were to happen to you. Perhaps there will be no one left to speak out ...
I hate to bring up a new argument so close to our conclusion...
Perhaps the idea was that "nobody should profit by exploiting park resources".
(this is not my belief, just my attempt to put words to what is going on)
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I think we should make a short list of activities. From that list put a checkmark in columns such as: should be encouraged. should be discouraged. should require permit. should require permit and insurance. should be unlawful.
I'll start:
climbing down the ladder of a Kiva: should be unlawful.
cutting trees for better view: should be unlawful.
stepping off trail: should be discouraged.
stepping off cliff: should require insurance
reflectors and tripods: should be encouraged
drawing curiosity of a few park patrons: should be encouraged
drawing crowds of onlookers: should be discouraged
shooting scenery: should be encouraged
shooting people: should be encouraged
shooting people in love: should be encouraged unless carried too far
Once we have an agreed-upon list, then clear language defining it can be written.
Most assuredly, it was not—the objective was simply protection of resources and the visitor experience. Please see the link I provided, because it makes this clear in few words.
In the case of the DPR, the ability to adopt regulations is limited by their mandate in the Public Resources Code. Lawmaking is solely the prerogative of the legislature, except for what they expressly delegate to an executive agency such as the DPR. And in this case, the mandate is limited to resource protection and management for the enjoyment of the public. I don’t think the intent was to exceed this mandate—the author of the regulation simply made a very poor choice of words. As has been done by most other agencies with similar laws, probably for the same reason: assuming that “commercial” = “potentially damaging and disruptive,” without bothering to think it through.
This is another angle on the approach I was taking: Regulation should be based on activities, and whether those activities are consistent or inconsistent with the purpose of the park. They should not be based on commercial outcomes or secondary factors that only infer those primary activities or that defy direct evaluation at the scene.
The notion that people should not profit on the use of a park might be a common belief among some, but it's really a violation of our core principles, it seems to me. Parks exist to preserve natural beauty for use by the people. When commerce and preservation conflict, preservation should win. That applies to other uses, too. But when preservation (or use by the people) are not at stake, commercial use is not a sin. Given the importance of commerce in our economic system, "use by the people" (which are, of course, my words and may be different from how the park's purpose is actually written by the park's governmental owner) should include commercial use. In any case, it should be allowed unless there is specific reason to prohibit it, and not the other way around.
Again, if a photographer is cited for photographing a subject in a park, then a painter should be cited for painting a subject in a park, unless either one employs disruptive apparatus, as defined by how the park will actually be used.
Rick "noting that stepping off the trail should be unlawful in some parks, making blocking the trail disruptive" Denney
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