Before I went on my trip last February to Death Valley and Joshua Tree, I was a little concerned about setting up a tripod with a biggish (7x11) camera on it. And, in point of fact, a park ranger in JT did slow down as I was set up at the side of the road but only smiled indulgingly while slowly driving past and admiring my equipment. A very nice smile. It was a she...
When I was 16 I thought my father the stupidest man in the world; when I reached 21, I was astounded by how much he had learned in just 5 years!
-appropriated from Mark Twain
I'm assuming you mean she was admiring your CAMERA equipment, right?
Things are SO different here in No. Calif. The ranger who approached me a couple of
weeks ago was keenly interested in how gear and film has specifically changed since the days he shot 8X10.
Nobody said anything about reflectors, lighting gear, and so on. Nobody said anything about anyone getting paid (the only definition of "commercial" that makes any sense to me).Originally Posted by Michael Graves
To me, confiscating the memory card is illegal seizure, and should require a warrant backed up by a court order. Even if there was probable cause to believe that commercial photography was taking place, I do not see how that can justify seizure without arrest.
And issuing a citation, assuming (and it is true that this is a grand assumption) the poster's story is honestly told, is out of proportion. If there really is no sign prohibiting photography, then it seems to me the most a park ranger can do is ask you to cease and explain the law. If the photographer refused to cease, then the citation is appropriate. If the photographer still refused, an arrest might be appropriate. Complaining is not refusal, by the way.
The cop has the same "rights" as everyone else. He also has a "duty". Performing his duty is not an exercise of his rights. We use that term too liberally. He is not protected by his rights if he performs his duty in a way that is inconsistent with the law or his department's policy.
If there really was no clear sign prohibiting photography with certain equipment (and prohibiting certain equipment is the only prohibition that seems consistent with maintaining order, not whether it is commercial), then this citation sounds a lot like the sheriff rolling a speed limit sign out in front of the Dukes of Hazzard as they pass by.
Rick "something's missing here" Denney
First item was implied. I assumed that too.
I believe that you are correct on the second item. What will be interesting is to see if the CF card appears at the hearing... or if it "got lost" somewhere in the process.
I did say smile, not laugh...
When I was 16 I thought my father the stupidest man in the world; when I reached 21, I was astounded by how much he had learned in just 5 years!
-appropriated from Mark Twain
I was responding to the thread in which my message appeared, i.e. Sam Reeves' thread. I didn't see that there was a whole separate incident added to the original one with responses to both incidents. I'll just delete my post because it's too confusing to deal with separate groups of responses to two different incidents two years apart all in the same thread.
Brian Ellis
Before you criticize someone, walk a mile in their shoes. That way when you do criticize them you'll be
a mile away and you'll have their shoes.
classic!
Merry22,
Sorry to hear about your experience. Unless you’ve left out something pretty significant, the ranger was way out of line. In fact, this is one of the most outrageous examples of harassment in California State Parks that I’ve ever heard of.
I agree with rdenny that there was no admission of guilt, and to me, there hardly was anything that justified a detention, and certainly nothing that justified a citation. If any crimes were committed, they were committed by the ranger.
The absence of a sign prohibiting commercial photography is irrelevant—if there is a law, you are expected to be aware of it. As described at length in some of my previous posts to this thread, there is a regulation that requires a permit for photography for “profit and sale” (I always thought the latter had to come first, but perhaps I’m just being picky). The regulation and related items are discussed in my article on the main page here, under California State Parks.
A glance at the link rulemaking history suggests very strongly that the intent (and consequently the meaning) of the regulation had nothing to do with commercial intent but rather with controlling large-scale, potentially disruptive activities—it’s far from clear that it was even intended to cover still photography. If the DPR object to such an interpretation, the alternative is that the regulation is so much at odds with the stated effect and justification that it’s probably invalid under the California Administrative Procedure Act. Why, then, the current wording? A glance at §4613, issued at the same time as §4316, strongly suggests that drafting law was not the author’s strong suit.
So with what does that leave us? As I see it,
- The ranger may have been justified in approaching Merry22 and asking what he was doing.
- There was probably nothing to justify a detention under Terry v. Ohio; if Merry22 indicated that the photography was for the couple’s personal use (presumably not done by Merry22 for “profit and sale”), that should have been the end of it.
- Demanding identification and further detention for a warrant check was most likely illegal—nothing in California statutory or decisional law requires it. I‘m not aware of any jurisprudence holding absolutely that it is not an offense to refuse to present identification, but there are several decisions (as well as legislative actions) that strongly support such a conclusion.
- There certainly was not probable cause for arrest, and therefore nothing to justify issuance of a citation.
- Consequently, there was not probable cause that the memory card contained evidence of a crime, so the confiscation of the card was almost certainly illegal.
- The regulation almost certainly does not mean what it suggests (or, alternatively, it’s invalid), so all of the preceding are probably moot—there probably was no legal basis for anything beyond a friendly conversation.
Were I as cavalier with the law as the ranger, I’d say we have at the very least, felony false imprisonment, armed robbery, and perhaps several lesser offenses. Now there are a lot of technical loopholes, but the point is moot because no California prosecutor would ever charge a peace officer for such trivial offenses,
Merry22’s Situation
The situation would be outrageous for someone who lived in Malibu, but is far more so for someone who lives across the country, and for whom the cost of travel would far exceed the cost of simply paying a fine. And I find it very hard to believe that a conviction would result.
I can’t advise on how to handle the Notice to Appear, but simply ignoring it is obviously a bad idea. You may be able to simply call the court and pay a fine, or you can probably have a California attorney appear on your behalf. What’s galling with either of these approaches is that unless there’s something we haven’t been told (e.g., you planned to make a profit from the images), you almost certainly are not guilty. This is an offense that’s seldom cited, almost never charged, and I’m not sure there’s ever been a conviction (though I haven’t done a search of court records—suffice it to say that I haven’t found any relevant appellate decisions). And on a more selfish note, every conviction makes it more likely that the rest of us may get similarly hassled.
It would seem to me that there is a very clear Fifth Amendment violation (arrest and deprivation of property without due process), and I would argue that this law was clearly established. The case can also be made for a Fourth Amendment violation (unreasonable search and seizure). Consequently, the matter is probably actionable under 42 USC 1983. Unfortunately, a §1983 action is usually a tough row to hoe, and often takes five years or longer. Assuming the case is even allowed to proceed to trial. As surprising as it may seem, police are held to a far lower standard than ordinary citizens—police are often granted “unqualified impunity” if they claim that their mothers told them their actions were legal, and the cases dismissed. So as much as we may initially want to cry, “Sue ’em!”, it’s often not a real option. That said, I’d be delighted to hear of the intent to sue in this case.
In any event, I suggest that you complain to the DPR in Sacramento about this—the story I’ve always been given is that no one complains.
What I find incredible is that some rangers have time for this nonsense in a time of dire financial straits for the DPR. There clearly was no disruption or threat to park resources, and because permits are free, there wasn’t even any potential revenue. So we would seem to have a case of a petty thug relishing the exercise of his petty (and actually nonexistent) authority. The DPR do themselves a great disservice by not terminating such people.
Long-Term Resolution
As I’ve said repeatedly hear and elsewhere, the only way to stop this nonsense is to get this and similar regulations changed. In California, there are two options:
- Formally request a change to the regulation; the appropriate agency must respond within 30 days. I’ve had such a letter ready for over a dozen years; I’ve done nothing with it because without support from a lot of other photographers (and perhaps photographers’ organizations), I doubt I’d get anywhere—especially with California’s current financial problems.
- Challenge the regulation in Superior Court as violative of the California Administrative Procedure Act. As I mentioned above, the final wording is at odds with both the stated effect and the submitted justification (which arguably was insubstantial). Injury is not required to have standing (though in this case, there clearly is is injury). I don’t have any experience with challenging California regulations, but suspect it’s a $50 k proposition even with a solid case. This far exceeds my budget for such things, though it might be feasible if enough people wanted to try it.
Having said all this, I should conclude by echoing the comments of Drew Wiley and rdenny: my experience with park rangers—local, state, and federal—has been almost entirely positive. Unfortunately, the actions of a few bad apples can quickly undue the efforts of the majority who do their jobs admirably.
And VERY well said, very informative, thank you!
When I was 16 I thought my father the stupidest man in the world; when I reached 21, I was astounded by how much he had learned in just 5 years!
-appropriated from Mark Twain
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