Law on photography update

[cyrus]

Cyrus, I have and I believe that it is only a very small minority of the people who take photographs who have ever had this problem in the USA.

Well, even if they're a "small minority" - so what? I'm amongst them and so are lots of other people. Is something "not a problem" because it happens to a small number of other people? I have a suggestion for you Bob. Come to NYC. Take your LF camera, and point it at the George Washington Bridge. Then, you'll get to join the club.

[BrianShaw]

And how would this be proven? Bearing in mind the fact that I am innocent until proven guilty.

I think you're clutching at straws now. There is no law banning photography in a public place. In your country it might or might not be protected by one or more amendments, in mine it isn't. That doesn't suddenly make it illegal.

Just moving a small box up to your face and pressing a button doesn't constitute 'disturbing the peace' any more than moving a carton of drink up to your mouth does (with or without digesticative intent!).

Whatever goes on inside that magic box is irrelevant, it is your actions with respect to other people and their property which might or might not attract the attention of the police.

Steve, I think the arrest is more likely to be made for interfering with police activities or failure to disperse than disturbing the peace, and the photography issue is just an associated defense for why there was no just cause for the cop to think that police activities were being interfered with or there was no just reason to disperse when ordered.

I think I understand but, again, don't think I would ever be in the position of using such a defense (if ever arrested for such activities in the first place). It seems like a "long shot" kind of defense... but as they say , "IANAL". I also understand those who worry about errosions of our civil liberties... but I tend not to worry those issues too much. Perhaps I'm too trusting of "the system" but in my world I think it is well intentioned and the occasional odd situations work themselves out.

[cyrus]

"judge doesn't second-guess the cops."

Want to bet?

As I previously mentioned, I travel a lot. You used to be able to drive your car upto the door to the terminal at EWR and the cop would let ypu leave your car and carry your bags into the terminal so you could check in before parking. I did that once and the ticket agent looked at his watch as a group of us checked in. Stated that we only had 5 minutes to get on the plane and rushed us to the gate. Once there we found no plane and the ticket agent raced down to tell us he made a mistake and we still had an hour.
Once I got to my hotel I discovered that I did not have a parking ticket. I called home to have my wife check with the Port Authority Police as to what happened to my car. They told her it had been towed to the impound lot at EWR and I had a ticket. When I returned to EWR I had to go to the PA Police station and pay a $1.00 a day storage fee and pick up my ticket. I had to go to court in Newark for the ticket.
In NJ a ticket for parking a car had to be issued to the registered owner of the car. I was leasing the car from GMAC so I was not the owner but the ticket was issued in my name.
When I got to court the judge asked how did I plead and I pled not guilty. She asked if I had left the car in front of the terminal and I answered yes. She then asked why I pled not guilty and I explained that I was not the registered owner of the car but the lessee. She asked the cop if he had run the registration when he issued the ticket and he answered that he did not even remember writing the ticket.
The judge dismissed the case, found me not guilty and had the cashier give me a receipt for $0.00.

She certainly did second-guess the cops.

Additionally, at least in NJ, hearings are recorded for review by higher officials then the local judges. I had been found guilty of a traffic violation once and without any action on my part the conviction was overturned when the tapes were reviewed by a higher judicial authority. I was sent back the acessed fine and the traffic points were erased.

Bob, the circumstance you're talking is about the technical legalities of how a ticket is issued (what form is filled out, to whom it is directed, who signs it etc.) not about whether the cop had the power to issue tickets for traffic violations as a general matter. In law school we call that "fighting the hypothetical".
Notice that the judge in your parking ticket case didn't question the cop as to WHY that place was marked "no parking". That is not up to the judge to decide.

[BrianShaw]

Steve, I think the arrest is more likely to be made for interfering with police activities or failure to disperse than disturbing the peace

... and the reason I say that is that it is likely an easier charge for the cop to substantiate. "He didn't do what I asked and made my job more difficult and/or put other peooples lives in jeapardy becuase I was dealing with him rather than the (more important) situation at hand."

[cyrus]

... and the reason I say that is that it is likely an easier charge for the cop to substantiate. "He didn't do what I asked and made my job more difficult and/or put other peooples lives in jeapardy becuase I was dealing with him rather than the (more important) situation at hand."

Yes, this is yet another one of those generic laws that can be used to hassle photographers.

[Bob Salomon]

Bob, the circumstance you're talking is about the technical legalities of how a ticket is issued (what form is filled out, to whom it is directed, who signs it etc.) not about whether the cop had the power to issue tickets for traffic violations as a general matter. In law school we call that "fighting the hypothetical".
Notice that the judge in your parking ticket case didn't question the cop as to WHY that place was marked "no parking". That is not up to the judge to decide.

Nothing was marked "No Parking"

I parked directly in front of the entrance door to the terminal where you leave off passengers.
The curb in front was a no parking area for the entire length of the terminal.

[BrianShaw]

If the cops say that your conduct was disturbing or otherwise amounted to violation of those laws, the judge doesn't second-guess them. The judge is not in charge of the details of how the cops do things like manage traffic or enforce public safety and won't get involved when there's no constitutional right at stake.

Unless there's a constitutional right at stake the judge doesn't second-guess the cops.

Clear?

No, not exactly clear. As a juror in several crimanl cases I seem to recall be admonished by the judge to NOT accept the word of a LEO as holding more credibility than the wordof anyone else - that we were to hear the facts and evaluate them against the law as presented by "his honor" at the time of deliberation.

In traffic court I have noticed a tendency for judges to not question the written statement of LEO on the citation (if cop says I crossed a double-yellow no amount of whining from me is going to change that "fact" - even if the cop really was wrong)... but not in criminal or civil cases in a Superior Court wher Ihave served as a juror.

What am I missing here?

[cyrus]

Nothing was marked "No Parking"

I parked directly in front of the entrance door to the terminal where you leave off passengers.
The curb in front was a no parking area.

The POINT is that your anecdotal illustration of that particular incident is not relevant. When I say that a judge doesn't second guess a cop in deciding whether there is a "danger" we are of course assuming that the proper forms were filled out correctly etc.

[cyrus]

No, not exactly clear. As a juror in several crimanl cases I seem to recall be admonished by the judge to NOT accept the word of a LEO as holding more credibility than the wordof anyone else - that we were to hear the facts and evaluate them against the law as presented by "his honor" at the time of deliberation.

In traffic court I have noticed a tendency for judges to not question the written statement of LEO on the citation (if cop says I crossed a double-yellow no amount of whining from me is going to change that "fact" - even if the cop really was wrong)... but not in criminal or civil cases in a Superior Court wher Ihave served as a juror.

What am I missing here?

As a juror you're in charge of determining facts not the law. Based on my hypothetical about driving a car on a closed highway lane, we're assuming that the fact that you were indeed driving a car on a closed highway lane was already established. The point I was making was that the neither the judge (nor the jury) gets to question the cop as to WHY he decided to close that lane. That decision is up to the cop. They're the ones who are trained and funded to make those decisions. Not juries and not judges. If there's a question as to whether you were in fact driving on a close highway lane, then the jury may decide that. But in our hypothetical, that's not an issue.

[rdenney]

Cyrus, one of your own points is that case law is binding on the jurisdictions to which it applies.

I think Cyrus was skipping a few steps. Case law ends up having the force of law because our system is based on precedence. The law on the books is the establishment, and the case law dictates the manner of interpretation. Case law affects the process in two ways: It provides the basis for arguments in court on subsequent cases, and it is used to set enforcement policy within law-enforcement organizations.

I think I agree with Paul, despite that it took Cyrus a number of attempts to make the issue clear enough for me to see it. His presentation has not helped, unfortunately. He insists that the trespass was irrelevant because the charge was dropped. I believe that is wrong--it cannot be irrelevant because a false-arrest claim must challenge the law or its interpretation under which the arrest was made.

But it is irrelevant to something else the court asserted, and that assertion is the issue. If I'm reading all this correctly, the notion that speech must be communicative was already established in case law. The new thing here was that being a hobbyist photographer was evidence of not being communicative.

So, the trespass was irrelevant (perhaps) to that assertion which has potential ramifications. It was not irrelevant to the case.

Nobody is arguing against the notion that photography is generally legal because it is generally not illegal. Thus, photographers who are not engaging in illegal activity must be charged on other statutes if they are arrested, such as loitering or whatever. The rights of due process govern that. And since case law is used to set enforcement policy, the notion that non-journalist photographers don't have an actual right to make photographs might lead to more aggressive enforcement by agencies that would, for whatever reason (including trying to please other citizens and address their complaints), rather not see photographers with big cameras standing in one spot for a long time.

So, Paul's word erosion is useful here. This is not the sudden removal of an established constitutional right, as many of use interpreted Cyrus as saying. This was a more subtle inclusion of many of our activities into the unprotected activity known as non-communicative expression.

I think the reaction was driven by the perception that Cyrus was claiming Stage IV cancer, when in fact the situation is probably more like a pre-cancerous condition that needs to be watched, and perhaps worthy of considering some corrective strategies.

Finally, I agree with Paul that this needs to be argued in front of a high court by real experts in the topic, as does not seem to have happened in this case.

Rick "who believes in knowing more than he needs to know" Denney