Law on photography update

[cyrus]

And how would this be proven? ...
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!).

It would be proven in court the same way as if you got a ticket for loitering or vagrancy or creating a hazardous condition. These matters are left to the discretion of the cops. 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.

OK let me see if I can explain this better: Imagine if the cops decide that a certain lane on a highway is "dangerous" and, and since they are charged with administering public safety, they go ahead and close that highway lane, thus effectively preventing you from driving on that lane. You decide to go ahead and drive there. The cops issue you a citation and you go to court. The cops don't have to explain to the judge WHY they though the lane was dangerous and WHY they closed it. The only "proof" they need to show is that you were driving on a closed lane. In your defense you can't argue, "but your Honor, it really wasn't dangerous and so should not have been closed." You don't get to demand that the cops explain WHY they thought the lane should be closed. You never had a "right" to drive your car in the first place, and certainly not on that lane. The decision to close that lane is up to the cops not up to you or the judge. It is THEIR job to decide what is and what is not "safe" or "disturbing" The decision is left in the discretion of the cops. Unless there's a constitutional right at stake the judge doesn't second-guess the cops.

Clear?

[Bob Salomon]

"AND since cops already bother photographers regularly, this isn't an unlikely circumstance."

I guess I must have lived a charmed life. I grew up in lower Fairfield County, CT and began taking pictures when I turned 13 in 1954 with an Ansco Speedex 120 camera. Having a father that commuted everyday to Rockefeller Center I also spent a lot of time there as well. Always taking pictures. I went to high school in Greenwich, Ct and again, always took pictures - but then with a 35 SLR. I went to College in Atlanta and shot there as well with 35 and Hasselblads. I went into the USAF in the early 60's and continued shooting in TX, CO, SC and FL. After the AF I moved back to CT and kept shooting and then to ME and also shot there a lot. From ME moved back to CT and opened a studio shooting 35, MF, 45, 57 and 810. Even did newspaper work stringing in Atlanta and CT with all formats. From CT moved to where I am now and still shoot a lot. Of course, as many of you know, I travel a lot for my job; Marriott Lifetime Platinum, Hilton Gold, Continental Gold, etc. Last year I had 150 nights just in a Marriott. When I travel, within the USA and without, I also shoot a lot.

But in all of those years the only time I was ever approached for shooting when I shouldn't have been was just after my 13th birthday when I was taking a road trip with one of my father's salesmen around New England. We arrived in Groton, CT and I was standing on the side of the road shooting pictures of submarines inside a chain link fence and the sub base there. A Navy SP wanted to know why I was standing there shooting pictures of submarines with my father's Minox B. He also demanded that I stop and escorted me back to the car. He did not ask for the film.

I find it hard to believe your statement:

"AND since cops already bother photographers regularly, this isn't an unlikely circumstance."

In my 57 years of photography, as both an amateur and as a professional, I certainly have not experienced this. Maybe I was just lucky, or charmed.

[cyrus]

I find it hard to believe your statement:

"AND since cops already bother photographers regularly, this isn't an unlikely circumstance."

In my 57 years of photography, as both an amateur and as a professional, I certainly have not experienced this. Maybe I was just lucky, or charmed.

Again, this is the old "it hasn't happened to me so it isn't a problem" thinking.
Bob, you should read what has been happening to other photographers or read some of the threads on this very forum.

(I get bothered a few times in NYC btw. One time a security guard had the temerity to demand to see my social security card - and this was on the sidewalk. Pretty much any street photographer in NYC has their own war story)

[r.e.]

Suffice it to say that if you're standing around in public doing nothing, yes, you can potentially be liable for "loitering".

Black's Law Dictionary:
Loitering, n. The criminal offense of remaining in a certain place (such as a public street) for no apparent reason.

Cyrus, the U.S. Supreme Court held over ten years ago that a city ordinance that used that definition of loitering is unconstitutional: http://en.wikipedia.org/wiki/Chicago_v._Morales

[cyrus]

Cyrus, the U.S. Supreme Court held over ten years ago that a city ordinance that used that definition of loitering is unconstitutional: http://en.wikipedia.org/wiki/Chicago_v._Morales

Yes thank but it was THAT particular loitering statue that was ruled vague and unconstitutional - not ALL loitering statutes which couch the issue in various terminology. There are still lots of cities that have lots of loitering statutes on the books, no and doubt some of them would be ruled unconstitutional should they be challenged in court but until they are challenged in court, they're still on the books and are enforced.

In any case the point here is about non-communicative photography not loitering nor trespass.

[Bob Salomon]

"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 Salomon]

Again, this is the old "it hasn't happened to me so it isn't a problem" thinking.
Bob, you should read what has been happening to other photographers or read some of the threads on this very forum.

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.

[r.e.]

Yes thank but it was THAT particular loitering statue that was ruled vague and unconstitutional - not ALL loitering statutes. There are still lots of cities that have lots of loitering statutes on the books, no doubt some of them would be ruled unconstitutional should they be challenged in court but until they are challenged in court, they're still on the books and are enforced.

In any case the point here is about non-communicative photography not loitering nor trespass.

Cyrus, one of your own points is that case law is binding on the jurisdictions to which it applies. A U.S. Supreme Court decision is binding throughout the U.S., which means that ordinances with that kind of wording are unconstitutional and for all practical purposes void. Law enforcement people know this. So do the city councils that are drafting replacements that are targeted at particular activity, none of those activities, as far as I know, being photography.

You are the person who keeps bringing up "loitering" and related concepts in an attempt to refute what Steve Smith and JohnNYC are saying. If it has become an issue in this discussion, it is because you have made it an issue. Given that you are a lawyer, you should know better than to make some of these statements. They serve only to undermine your credibility.

[Brian Ellis]

"AND since cops already bother photographers regularly, this isn't an unlikely circumstance."

I guess I must have lived a charmed life. I grew up in lower Fairfield County, CT and began taking pictures when I turned 13 in 1954 with an Ansco Speedex 120 camera. Having a father that commuted everyday to Rockefeller Center I also spent a lot of time there as well. Always taking pictures. I went to high school in Greenwich, Ct and again, always took pictures - but then with a 35 SLR. I went to College in Atlanta and shot there as well with 35 and Hasselblads. I went into the USAF in the early 60's and continued shooting in TX, CO, SC and FL. After the AF I moved back to CT and kept shooting and then to ME and also shot there a lot. From ME moved back to CT and opened a studio shooting 35, MF, 45, 57 and 810. Even did newspaper work stringing in Atlanta and CT with all formats. From CT moved to where I am now and still shoot a lot. Of course, as many of you know, I travel a lot for my job; Marriott Lifetime Platinum, Hilton Gold, Continental Gold, etc. Last year I had 150 nights just in a Marriott. When I travel, within the USA and without, I also shoot a lot.

But in all of those years the only time I was ever approached for shooting when I shouldn't have been was just after my 13th birthday when I was taking a road trip with one of my father's salesmen around New England. We arrived in Groton, CT and I was standing on the side of the road shooting pictures of submarines inside a chain link fence and the sub base there. A Navy SP wanted to know why I was standing there shooting pictures of submarines with my father's Minox B. He also demanded that I stop and escorted me back to the car. He did not ask for the film.

I find it hard to believe your statement:

"AND since cops already bother photographers regularly, this isn't an unlikely circumstance."

In my 57 years of photography, as both an amateur and as a professional, I certainly have not experienced this. Maybe I was just lucky, or charmed.

Me too Bob. In probably 40 years, starting at age 13, of making photographs all over the United States and many other parts of the world, I've been questioned exactly one time. That was by a bank security guard in Tampa who asked me to stop standing on the Bank's property to make photographs of a sculpture in front of the Bank, which I figured he had a right to do.

Of course I already knew I was unique with respect to photography because people never come up to me and talk about what camera I'm using, whereas some here say they just pull out their film camera and suddenly a crowd gathers around them, fascinated that they're using film.

[cyrus]

Cyrus, one of your own points is that case law is binding on the jurisdictions to which it applies. A U.S. Supreme Court decision is binding throughout the U.S., which means that ordinances with that kind of wording are unconstitutional and for all practical purposes void. Law enforcement people know this. So do the city councils that are drafting replacements that are targeted at particular activity, none of those activities, as far as I know, being photography.

You are the person who keeps bringing up "loitering" and related concepts in an attempt to refute what Steve Smith and JohnNYC are saying. If it has become an issue in this discussion, it is because you have made it an issue.

My point in bringing up "loitering" is that it is one of the many different sorts of generic laws already on the books that are applied and can be used to ban public non-communicative photography. If not "loitering" then "disturbing the peace" or "disorderly conduct" or what-have-you. Even if the loitering law of Chicago was ruled unconstitutional, that didn't apply to ALL loitering laws. Pretty much ALL cities continue to have loitering laws. And loitering laws are hardly the only sorts of these generic laws that already give the police the power to ban public conduct that they think is "bad" and which gives them the discretionary power to prohibit.