California State Parks gestapo is looking for you! [Archive]

Jeff Conrad

3-Dec-2009, 17:14

I suppose I'd need to see what was meant by "reflective equipment," but it seems to me the ranger and the head ranger were way out of line. I find it mind boggling that they have the time for this nonsense at a time when state parks are drastically cutting back hours because of lack of funds. What's really silly is that there is no fee for a permit, so that rather than generating revenue, a permit actually entails costs to administer, with no apparent benefit.

In my experience, enforcement of 14 CCR 4316 isn't very aggressive, though I usually shoot things rather than groups of people. Most of the folks I've encountered at California State Parks have been pretty decent folks, more eager to help than hinder. But the folks here seem simply to be relishing exercise of their petty authority. Both the ranger and Superintendent Lingenfelter would seem in need of retraining.

It's apparent that Mr. McGhee was asked to present ID. Had I been in the same situation, I'd probably have declined to do so. California law does not require it, and it seems doubtful that there was even basis for a stop. Was there reasonable suspicion that a crime was being committed? If so, we're in trouble. Now perhaps my attitude is "uncooperative," but I prefer to preclude any possibility of having my name on a list of potential troublemakers. I'd be surprised if a ranger would "take it to the next level," but of course arguing with People with Guns always carries an attendant risk.

The law requires a permit for photography for "profit and sale," and has nothing to do with models or props so it's a bit different from National Parks, which require a permit for photography for that involves models or props for the purpose of commercial advertising (36 CFR 5.5(b))

As we've discussed here before, the problem with all "commercial intent" laws is that they're almost impossible to enforce without reading the photographer's mind, which to my knowledge, is impossible. To me, this would seem a good basis for having them voided for vagueness.

The intent of the 14 CCR 4316 was actually unrelated to "commercial intent" as such. When the rule was issued in 1991, the justification given was
Past experience has repeatedly shown that filming crews, unless closely monitored and controlled, frequently destroy or damage park cultural and natural resources while filming, unnecessarily disrupt the park experience of other park users, or disturb surrounding communities.

The Department needs to protect park visitors and resources from these dangers and ensure that the access of general park visitors is not denied by unauthorized commercial photographers.

Adoption of regulations by agencies of the executive branch of California government is covered by The Administrative Procedures Act, California Government Code Sect. 11340, et. seq., requires that an agency proposing a regulation must demonstrate "by substantial evidence the need for a regulation to effectuate the purpose of the statute, court decision, or other provision of law that the regulation implements, interprets, or makes specific ..."

It would seem clear that no evidence for requiring permits for situations such as described in the article was presented. Unfortunately, there were only a handful of people present at the single public hearing, and only two public comments, neither of which was relevant to the situation here. And ultimately, the wording is as it is.

Further evidence of the legal craftsmanship is found in 14 CCR 4613(b) issued at the same time, and which applies to the California State Railroad Museum; it states:
(b) Photography. No person shall use photographic equipment or techniques when informed by staff or posted notice that their use is prohibited. If ever there was a textbook case of a law void for vagueness on its face, this is it.

There are at least two ways to challenge 14 CCR 4316 (and perhaps 4613 as well). One is in court, which requires injury to have standing, a large stack of cash, and isn't a sure thing. Perhaps if I win $50 million in the lottery ...

The other, more practical approach would be to petition the California Department of Parks and Recreation for amendment or repeal of sect. 4316, as permitted by sections 11340.6 and 11340.7 of the Government Code. The agency must respond within 30 days, but are not required to take any specific action.

I believe a strong case could be made that 14 CCR 4316 is unreasonable and unnecessary as applied to people like Mr. McGhee, that it doesn't really mean what it appears to mean, that it's essentially unenforceable and constitutionally infirm, and may represent a potential liability to the DPR in the event that a photographer improperly detained or cited succeeded in an action under 42 USC 1983. But rulemaking is an onerous process, with all but the most trivial changes requiring many hours of staff time. California currently faces some of the most serious fiscal problems in its history, so amending or repealing this regulation probably would not be high on the DPR's list.

I spoke with a couple of people on the California Film Commission who assured me that citations under 14 CFR 4316 are rare, prosecutions even more so, and convictions almost nonexistent. A staff attorney for the DPR who handles many law-enforcement issues indicated that she has yet to receive a single complaint related this regulation. All of these comments are consistent with my experience that few people are even approached for possibly photographing commercially without a permit. It would seem hard for the DPR to justify expending considerable effort on what they see as a non-problem. I suspect that Mr. McGhee and some of the posters here might beg to differ, however.

Perhaps a directive from the DPR construing the regulation to have essentially the same meaning as 36 CFR 5.5(b) would resolve the problem with minimal effort. But I'm not sure this would fly with the California Office of Administrative Law, who might view it as simply an attempt to circumvent the rulemaking process.

Several times, I've thought of submitting a petition for amending the rule, but I'd be very surprised if anything would come of it, especially when I've never been hassled. But perhaps a petition from a large number of photographers would get some attention.

QT Luong

3-Dec-2009, 18:15

Jeff, thank you for such an informed comment.

The statement in the article "What caught his eye was very, very expensive equipment" for a Canon 30D and a 70-200 is simply laughable.

The CA law says " no person shall photograph, videotape or film for commercial (profit and sale) purposes in any unit, or portion thereof, owned operated or administered by the department without a permit ".

After you tell the ranger that you are not photographing for profit or sale, shouldn't that be the final word ? What legal basis do they have for not taking you at your word ? And if you make a false statement, what law would be broken, since they are neither federal agents nor law enforcement officers ?

sfgp

3-Dec-2009, 18:59

The underlying reason is not very hard to figure out.

"Revenue Gathering" from previously untapped sources (user fees?)

The state of California is broke (has been for years - just didn't realize it).

Deane Johnson

3-Dec-2009, 19:06

Perhaps it's time for the State of California to lay off some park rangers to aid with the budget crisis. It appears they have nothing useful to do with their time.

Jeff Conrad

3-Dec-2009, 19:38

I think QT's take is right on. Once a photographer has indicated that the photography is not for profit and sale, that should be the end of it. I've spoken with enforcement personnel from many different agencies, and they've generally conceded as much.

The operative question would then be whether there are specific and articulable facts that would indicate to a reasonable person that a crime is being committed. I cannot believe that possession of a D30 and a 70-200 would rise to that level.

I know many who think that if there is nothing to hide, there is no reason not to present ID to an officer (and a State Park ranger is indeed a peace officer). I don't necessarily agree:

Once you've given an officer ID, he can effectively hold you as long as he wants, especially if he doesn't like your attitude and wants to teach you a lesson. Unlikely, but I know people to whom it has happened.

There is a chance, though ever so slight, that there may be an outstanding warrant for someone with the same name. I know a couple of people to whom it has happened.

Though again unlikely, a ranger might conceivably have discovered that Mr. McGhee was a professional photographer, and that fact, in combination with everything else, might convince a court that a detention under Terry v. Ohio was justified. I doubt that much would come of it, but it could lead to additional harassment.

It would seem to me that going along with the scam simply encourages similar harassment of others. Such as me ...

To my knowledge, California does not criminalize lying to a peace officer, but lying to a cop is usually a bad idea, as almost every attorney will tell you. Among other things, there are some garbage appellate court decisions that authorize additional actions by the police (e.g., a search for ID) when a person has lied (see People v. Loudermilk and People v. Long, both in 1987, if you must read for yourself).

Again, had it been me, I'd probably have politely stated that I wasn't shooting for profit and sale, politely declined if asked to present ID, and politely asked if I was free to go if pressed. Of course, it's much easier to say that here than when being stared down by The Man.

As I mentioned above, I think the right way to deal with this is to get the rule changed so that its wording indicates its original intent. My impression from many discussions with folks at the DPR (at least in Sacramento) is that thay aren't out to get us. I think they simply don't see the potential (and in some cases actual) problems with the current rule.

Though I don't think one person requesting a change will do much, a coordinated effort is more likely to succeed. And until the rule is changed, we'll continue to have discussions like this that may feel good but really do nothing to preclude similar incidents in the future.

Jeff Conrad

3-Dec-2009, 19:43

Jeff Conrad

3-Dec-2009, 19:47

Deane,

Are you and I thinking of the same two people?

rdenney

3-Dec-2009, 20:08

Stan G.,

There is no charge for a photography permit, so it generates no revenue. As I mentioned, because the permit process takes resources to administer, it actually consumes resources that could be allocated to preserving state parks. Absent activity that's disruptive, there's absolutely no justification for hassling photographers.

And that doesn't even consider how it would go: "Hello, my name is Fred Fryburger, and I am applying for a permit to photograph my family with this here Canon DSLR and lens. What form do I need?"

"Mr. Fryburger, you don't need a permit to photograph your family."

"Well, that there Ranger Rick said I did, and threatened to cite me if I didn't move on."

"You don't need a permit to photograph your family."

What should happen at this point is that the person should call in a supervisor, who would then report to the Ranger Rick's supervisor that Ranger Rick was exceeding his authority. But it would never happen, the above loop would recur endlessly until Mr. Fryburger simply slit his own wrists.

As Jesse Jackson used to say, we have to end the cycle of pain.

Story time: When I lived in San Antonio, I spent a lot of time photographing the missions there. Four of the five missions are administered by the National Park Service as a National Historical Park. The fifth is the Alamo, which is owned and administered by the Daughters of the Republic of Texas. The DRT does not allow photography with "commercial equipment". The usual piece of equipment that draws the line is a tripod. You can apply for permission to make photos, but the process is not easy, and money will change hands before it's over. And if you try to make photos anyway, the beefy guy with the badge and the gun, who is not a cop but a security guard licensed as a peace officer, will remove you by whatever means necessary. You can sue if you want from your hospital bed. But the land was given to the DRT by the state around the turn of the last century, and the DRT is a private entity, so they get to make their own rules. I didn't make any large-format photographs of the Alamo during the six years I lived there. Those who do must do it from the other side of the street.

The National Park Service is just the opposite. The only time I was challenged was when a buddy of mine and I were wheeling our stuff into the San Jose Mission. We both had carts of stuff. He had his old Calumet CC-402 short-rail view camera, and I had my 45NX. Both of us were using big Bogen tripods, and we had other cameras, too (I had a Rolleiflex with me and he had a Yashicamat). As we were wheeling the stuff into the compound, a lady ranger stopped us and asked us if we were photographing commercially. We said, no, we were just doing it for fun.

She looked at the equipment and looked back at us, not buying it.

My friend broke the protracted silence with, "It's an expensive hobby."

We all laughed and that was that. She explained that a couple of weeks before, someone had come to the mission to shoot a swimsuit calendar and had attracted a crowd that required intervention and management from the rangers.

Rick "who has never had an issue in a national park" Denney

QT Luong

3-Dec-2009, 21:54

One can always say that they not shooting for profit. If later they sell the photo, it's just that they changed their mind about the use of photos in the while. Changing one's mind is not a crime. That why, like Jeff hinted, the NPS policy, which is based on what is taking place rather than motives is the only reasonable one.

neil poulsen

4-Dec-2009, 09:10

When I see these discussions, I wonder why the Parks don't see the mutually constructive relationship that exists between photographers and the Parks.

Could they ask for any better on-going advertisement than to have photographs taken by so many talented photographers so prevalent in our everyday lives? Where would their receipts be without these photographs? And they want to discourage photographers and their images?

Props, models, reflectors, etc., can get in the way; it makes sense to control these projects with permits. But allowing photographers and their tripods to roam the parks would seem to me to be in the Parks' best interest.

Jim Galli

4-Dec-2009, 09:13

sidmac

4-Dec-2009, 09:29

Gee I didn't know how lucky I've been. I've shot in Bodie State Park many times with my 4x5 and no one has ever said a word. I once took my Medium Format camera into the State Railroad Museum and had know problems there either. Maybe I look like I don't know what I'm doing so the Gestapo Rangers leave me alone.
Sid

Drew Wiley

4-Dec-2009, 10:12

The photographer who was jumped was interviewed on TV last night, along with the
head ranger. The public is pretty disgusted. This just seems to be a case where this
particular park is supervised by someone anal. My typical experience with state park rangers is that they're friendly and often interested in what I'm composing. We've had many good conversations about wildlife, regional history, and shared experiences.
Some of the local rangers have become personal friends. This instance is odd.

sfgp

4-Dec-2009, 10:25

There is no charge for a photography permit, so it generates no revenue.

I stand corrected.

From the posts after mine - this seems to be generally an uncommon practice
that is common in Santa Cruz.

At 2300+ miles from me - I don't think that it is going to impact me in the near
future.

Gem Singer

4-Dec-2009, 10:33

Perhaps the head ranger should be required to watch the Ken Burns series on the National Parks that was shown on TV. It's also on DVD.

He will soon begin to realize that the National Park System that we enjoy today probably would not exist if it were not for photographers.

His job was created, thanks to the efforts of photographers.

If the head ranger cannot realize this fact, he should be replaced with someone who does.

Vaughn

4-Dec-2009, 10:45

Parks are not businesses, and (some?) Rangers are lazy. Promotion is their worst nightmare. The more people they can drive off, the better they like it.

As an ex-ranger (Fed, not State) I'll just write off your comment as perhaps the result of a grumpy morning. I am afraid it is a particularly nasty erroneous generalization.

Vaughn

Drew Wiley

4-Dec-2009, 13:53

It's especially ironic that this incident occurred right on the opposite end of Monterey
Bay from Pt Lobos State Park, where on a given summer day there are photographers
with expensive professional equipment everywhere uncontested. On a clear day you
can see these two spots from one another.

Vaughn

4-Dec-2009, 14:47

Brian Ellis

4-Dec-2009, 15:02

I agree with you Sam. This was not a pro gig - it was a family shoot. The equipment you are using is meaningless, and I don't think I'd have been so forgiving to the ranger. That arrest would make a great lawsuit.

Arrest? Where did you see that? I just skimmed the article but I thought it said the photographer didn't even get a ticket.

al olson

4-Dec-2009, 15:45

Is that a Hasselblad?

Reminds me of an experience that I cited three years ago regarding contact with a Park Service Ranger. The opening line was, "Nice camera you have there."

http://www.largeformatphotography.info/forum/showthread.php?p=182996&highlight=tidal+basin#post182996

David Karp

4-Dec-2009, 16:18

Marko

4-Dec-2009, 16:54

I was on a nice outing - a photo shoot with my Dad. He with his digital, me with my 4x5. We were in Malibu Creek State Park in CA. A park ranger stopped me and asked to see my permit. I told him I was not a professional on a shoot, and I did not need one. He threatened to confiscate my equipment, claiming I had to be a pro photographer, because no amateurs have equipment like mine. (I guess he had never seen any of you guys with more impressive stuff than the Cambo I was using at the time. :) )

At any rate, he "required" me to give him my ID, and he wrote down my name. He threatened that if I was ever stopped again without a permit, my equipment would be confiscated without question.

Of course, just down the road, near where they teach rock climbers, there was a pro with a digital SLR taking shots of a model! I wonder if he had a permit, or if he was even stopped.

I went to the park office. Complained about this guy, but the supervisor was not there. I got her name, and complained about the situation mightily. She apologized, agreed that he was in the wrong, and basically reiterated all of the rights that we know we have. Of course, this did not stop the bully in the uniform from throwing his weight around. He just irritated the heck out of me, and kind of ruined the day for me. The supervisor did suggest calling ahead and announcing that I was coming, or even stopping in the office when I get to the park to tell them that I am going to take photos, and that I am not on a pro gig, and that I have unusual equipment.

Nobody can "confiscate" your personal property unless it was an instrument for committing a crime. Just like nobody can confiscate your car for illegal turn or double -parking.

The rules that guide interaction between police and citizens in this country are far clearer and better defined than anywhere else. They are also fairly simple, at least in theory, practice is another matter - that's the stuff that lawsuits are made of. ;)

A cop needs a "reasonable suspicion" to stop and question you. He cannot search you without a warrant or without your consent. They will often try to bully their way into it, but the law is pretty clear on that. All you need to do is clearly state that you do not consent to a search. They can only search you once they arrest you, but they need a "probable cause" for that, generally a pretty narrowly defined term.

Even when stopped, you are not required by law to "show papers" in California except when pulled over as a driver. You are only required to "identify yourself" upon request. This means you have to state your name and DOB and possibly your current address, nothing else. If you are stopped while driving, then you have to show your driver's license and proof of insurance. You also have to submit to a sobriety test if requested.

You don't have to answer any other question if you do not want to. You do have the right to ask for the officer's identification too - typically name, badge number and agency. They have to provide this information, but otherwise they are pretty much free to bluff, bully and lie as they see fit in order to obtain information they can use against you. Because that's why they stopped you in the first place, not because they wanted to be social and have a little kaffeeklatsch with you.

This link (http://www.krages.com/phoright.htm) has been circulated around the web as a great reference specifically for photographers' rights, although these rules pretty much apply to all.

There was a string of police-photographer "interactions" in NYC over the last few years which ended in a number of lawsuits, all of which ended favorably for photographers, either in nice, little settlements or full judgements. Let's just say that most of those settlements were enough for a brand new Hassy digital system. :)

John Kasaian

4-Dec-2009, 17:03

IMHO this sort of stuff happens more often when seasonal ranger are turned loose on the public. Because they are law enforcement officers, you need to be respectful but if you believe an officer is not acting lawfully I would press the issue as prudently as possible, including hiring legal counsel if warranted (but you really do need to be aware of what else is going on---there could be other issues why your presence is being discouraged)

IMHO the worse case scenario is some artsy fartsy @$$hole with a camera vs. a ranger with a heavy badge and whose head has swelled to conform the shape of his hat's crown.

rdenney

4-Dec-2009, 17:07

At any rate, he "required" me to give him my ID, and he wrote down my name. He threatened that if I was ever stopped again without a permit, my equipment would be confiscated without question.

Hmmm. I wonder...

1. Do the park rangers have the authority to seize private property?

2. Do they carry guns?

3. If I refused to allow a ranger to confiscate my property, what would he do?

3a. Arrest me?

3b. Pull his gun on me?

3c. Mace me?

3d. Throw me to the ground?

The threat to confiscate the camera might well have brought out the real bastard that lurks deeply in my psyche (that's my story and I'm sticking to it). Normally, I run from trouble and would not challenge anyone with a badge and a gun. But in this case, I think I would require him to arrest me before allowing him to confiscate my camera.

At the very least, it would call his bluff, and if he goes through with it, require the ranger to be held accountable in front of a judge. That might be the only way to deal with him--disciplining government employees, state or federal, has never been easy, but judges have no such reticence in my experience.

If he arrested me, I would, of course, not resist. That would give him some standing. But I bet if you said, "Now, officer, you and I both know that it is completely legal for me to make photographs with any equipment I choose for non-commercial purposes, so I'm going to ask you to back away and not bother us any longer if there's nothing further we can help you with. If you attempt to confiscate my private property, I will require you to arrest me, and then you'll have to explain yourself to a judge. Do you really want to do that?"

If he's not carrying a gun, then he may be required to call for local law enforcement to conduct the arrest, at which time he might have his authority handed right back to him. How does that work in California?

Of course, it's easy for me to say--I'm 3000 miles away typing on the Internet. Though when I lived in Texas, I had a concealed-carry permit. I was pulled over by the Dallas Police for an expired inspection sticker on my car, and the cop (who displayed a similar mindset to your ranger), having seen from the database that I had the permit, threatened to arrest me for not declaring that I had the permit, as he thought was required by law. I told him to go ahead--but he might be surprised when the judge explained to him that I was only required to declare that I was carrying a concealed weapon, which I wasn't. He gave me The Eye, but backed off. The traffic judge dismissed the citation he gave me for the inspection sticker out of hand. I've never handled petty displays of authority very well, unfortunately.

Rick "whose positive experiences with rangers have been near total, fortunately" Denney

Drew Wiley

4-Dec-2009, 17:30

pocketfulladoubles

4-Dec-2009, 17:45

Arrest? Where did you see that? I just skimmed the article but I thought it said the photographer didn't even get a ticket.

No he was not. I just mean hypothetically. I'm curious what the outcome would be if one were to just flat out refuse to stop taking photos, let the ranger make an arrest, and then later prove the lack of professional status. Seems like it would be enough to make a case with.

rdenney

4-Dec-2009, 17:47

Marko - you're making the assumption that all rangers know the law and respect it.
While I've never encountered anything other than a misunderstanding in this part of the world, in other states I have run into both rangers and local law enforcement types who were very, very bad apples indeed. Sass them and you might never been
seen again. Better to pay politely meet their demands or even pay a fine. Besides, the
local judge is proably their uncle.

It's a good point and you have to look the guy in the eye before challenging him. But I somehow doubt that those sort of fellows end up as park rangers. I've seen rangers who liked to exercise their authority a little too enthusiastically, but not to that level of violence or corruption. Seems like such things would make the news these days--someone going missing in a park provides more exposure and attention than someone going missing in a rural area during a cross-country drive. Local cops, yes, on rare occasion, as media reports have shown.

Thank goodness I've never been extorted by a corrupt cop. I have a feeling I might never be seen again. I have been treated rudely, but cops hold no monopoly on rudeness.

Rick "who knows a few judges, too" Denney

Jeff Conrad

4-Dec-2009, 18:01

You are only required to "identify yourself" upon request. This means you have to state your name and DOB and possibly your current address, nothing else.

Unlike Nevada and about 25 other states, nothing in California law requires a person to identify himself to a peace officer unless the person is driving a vehicle. California had a "stop and identify" law, but it was voided by Kolender v. Lawson in 1983. In fact, there is much in California decisional law that says refusal to identify oneself is not a crime. Full disclosure, though: I'm not aware of a dispositive case in the California Supreme Court with a such a holding, and there are some people, such as the Alameda County DA's office, who believe refusal to present written identification constitutes obstructing a peace officer.

I guess I have a bit of streak similar to Rick Denny's, but the indignity of standing by helplessly while a ranger runs a warrant check is arguably the least of the issues. Far greater, in my opinion, is the possibility of a completely innocent person getting his name in a database of "troublemakers" with no chance of getting it removed, as was noted by the Ninth Circuit Court of Appeals in Lawson v. Kolender (the case upheld in Kolender v. Lawson.

What I actually would do in the face of such a demand would depend on the circumstances, especially the number of witnesses.

Again, though, I think the details are a distraction from the greater issue--the law that started this thread is ridiculous and invites capricious enforcement, and unless it gets changed, this stuff will keep happening. As some of us have said, the incidents seem to be uncommon; however, I suspect the frequency is of little interest to "Boots" McGhee. And probably David Karp.

Getting the law changed is entirely possible with the appropriate effort. But just griping here isn't going to do it.

Jeff Conrad

4-Dec-2009, 18:48

Rick,

California State Park rangers are peace officers, and have full police powers when enforcing DPR regulations and related statutory law.

To my knowledge, park rangers can only seize private property incident to arrest or when the property constitutes evidence of a crime. Legally, anyway.

Many, if not most, rangers carry guns.

Absent legal grounds, confiscation of camera would arguably constitute armed robbery, though I think California would fall into the Pacific before a prosecutor would charge.

I think the result of refusing to allow confiscation would depend on how you refused. And how many witnesses there were. In the worst case, a ranger might do a through d. And perhaps more.

A verbal refusal would be perfectly legal, though it probably would make the ranger even madder. But realizing he was on thin ice, he might let it go with a nasty warning. Or not. Physically resisting would theoretically be legal, but it would almost certainly result in arrest for resisting an officer and battery on a peace officer. The burden would then be on you to prove that the confiscation was unlawful. To cover himself, the ranger would probably claim that you had been arrested, and if you resist a lawful arrest, you have no affirmative defense to battery of a peace officer. Who's side do you think the DA and the judge would take? Physically resisting a peace officer is generally a very bad idea. Pulling it off might make for a great legal victory, but before attempting it, you'd need to ask yourself one question ...

There was a report several years ago of a person photographing public transit (perfectly legal) who was approached by an LA County deputy sheriff and asked if he was aware of 9/11. When the photographer refused to present ID, he was handcuffed and cited for disturbing passengers. Unsurprisingly, the deputy failed to show up for the court date, and the judge immediately dismissed the charge, saying that he was "disturbed" by the deputy's behavior. So the photographer beat the rap, but had to endure the hassle and probably has an arrest on his record, despite doing nothing wrong. I suspect the deputy isn't contributing to the overcrowding of the California prison system ...

In my experience, State Park rangers are much nicer people than the deputy above, but there are bad apples in every group. Beyond verbal protest, and a polite one at that, mixing it up with a peace officer in the field is like playing UCLA at Pauley Pavilion during Wooden's reign.

Again, the way to deal with this is to get the law changed.

Darin Boville

4-Dec-2009, 19:00

Oh, I don't know. The guy had at least one reflector, probably on a lightstand. There was another shoot at the same time--Lord knows what was going on with that one.

Are we jumping to conclusions?

--Darin

Laura_Campbell

4-Dec-2009, 19:47

Marko, great link. Thanks for sharing it.

Drew Wiley

4-Dec-2009, 20:18

A long time ago I lived right on the beach at Santa Cruz and can understand how in
certain place a siege mentality might develop among rangers. There were quite a few rowdy people who showed up in that neighborhood, quite different from the
nature-loving Pt Lobos crowd. As far as Natl Park rangers are concerned, most of
them on the N Rim of the Grand Can come from Colorado city, which is a criminal
enterprise if ever there was one. I've had run ins with a few of those guys in the
park itself which were downright spooky. No, they don't cultivate trouble with outsiders, and don't want to call any more attention to their cult than they've already
gotten, but there's a line you never want to cross with them either. Here in Calif.
massive drug operations are showing up in all kinds of parks - state, Natl, and
regional; and it's hard to believe that ALL the authorities are ignorant of whats going
on. Point your camera in the wrong direction and you might be given the choice of
either surrendering it or your life. This is, in fact, a topic of conversation which
I've had with ranger friends in the last weel. They're concerned for their safety too!

David Karp

4-Dec-2009, 20:22

tgtaylor

4-Dec-2009, 20:40

So far I haven't had any problems whatsoever shooting in California or National Parks. I've been asked several times if I was a professional or shooting for profit but it ended there when I told them it was a hobby.

In fact, two weeks ago I was shooting in Muir Woods National Monument and a lady ranger came up and asked those questions and departed when I responded as above. Actually she sort of took-up guard about 30 meters away but a docent came by and gave a 10 minute or so class lecture in my shot and she departed when the class departed. A little further down the path I was set-up illegally - about a foot or so off the wooden trail - when another ranger came up and said "Is that a 3x5?" 3x5! " No, this is a....well they probably did have a 3x5 a one time," I responded remembering having recently seen 2x3 and other sized film holders at a recent camera show, "but the is a 4x5." We had a pleasant 5 or ten minute conversation and he departed.

Where I have had problems is with private security. If I am sure of my rights, instead of arguing I just tell them to call the police.

boots mcghee

4-Dec-2009, 20:48

I'm the guy who was harrassed by the state park ranger @ Seacliff State Beach. If you read the article, I did not embellish it one bit. He started into the "educating of the law" motif and then asked me for my ID. I'm 62 next month and am a 45 year resident of Seacliff and 31 years in the same house here. I didn't have my ID w/me because I came down to the beach in my niece's car to shoot their Christmas card shortly after Thanksgiving. They live in Ariz. I shot the photos under the pier, did not have a reflector, shot it w/a 30D and a 70-200 2.8 IS lens. No tripod.
As we're walking back to the car, I see the ranger talking to a family shooting their family Christmas photo. I approach them and he starts in on the law deal. He asks me my name and I tell him "Boots McGhee", my nickname for all those 62 years. He, I guess, thought I was being a smart alec and asked me what it reads on my license. I tell him my name and he proceeds to call in to his dispatcher for a check of outstanding warrants. This after I told him, my niece told him it was simply a family Christmas card.
No warrants were found and he gave me a verbal warning and I was let go trying to explain to my family that this guy must of had a hair up his a** and didn't know the law.
The reason I'm explaining all this to you is that thanks to this forum and several people that have shared their experiences w/me, I feel that this law and this attitude has got to be changed. I'm going on a local radio program tomorrow (Sat) at 10am pacific to discuss this issue. It streams and I'd appreciate any call ins to either support or explain or share their experiences with them...KSCO radio 1080 locally here in Santa Cruz and www.ksco.com
Thanks for this forum...very educating

Marko

4-Dec-2009, 23:14

Yes, I know I don't have to identify myself, but see many of Jeff's comments above. When you are dealing with a jerk who has all of the cards, there are lots of things you can do. Some stupid, and some intelligent. And there are lots of things the officer can do, whether completely legal or not. That is why I said he "required" me to show him my ID.

When talking about dealing with law enforcement officers, it is easy to say what you "can" do, or what someone should have done, or theorize about what your rights are. When it comes down to it, peace officers on the scene do have the ability to make your day even worse than he was making mine. You can either escalate a situation, or you can try to minimize your problem. I chose the latter.

Talk about "making a case" and the like is interesting in the abstract. Have you ever been through a lawsuit - civil or criminal? They are not designed for fun. What if the ranger does confiscate your stuff - Do you want to go through the hassle of recovering it? Its not worth it.

Yes, I put up with the guy's BS, but also I told him in no uncertain terms that I had a right to do what I was doing. He made a ridiculous conclusion based on no knowledge regarding what kind of camera distinguishes a pro from an amateur. I told him he was wrong. I complained about his actions at his office that day, and then raised hell with his boss. She was very interested in what happened. She understood that he was in the wrong, admitted it, and I feel pretty confident that she had a chat with him after talking to me.

I suppose I could have made a big deal about it, maybe even gotten myself detained until I could get everything sorted out. To what avail?

Jeff is also right that the law needs to change. The officers need to be better educated on what they can, and cannot do. Neither of these things is going to happen by "spitting in the officers face."

David,

You are, of course, right and you chose the most efficient course of action under those circumstances.

But to change the law, we must draw attention to it and nothing captures attention like a string of lawsuits. If you google "photographers' rights" or "photography is not a crime", you will find a lot of information (as well as lot of noise) regarding cop/security guard-photographer run-ins, especially in NYC. Quite a few of those have actually resulted in lawsuits, because photographers in question chose to stand their ground and in virtually every case there was either a pretty lucrative settlement or court judgement in photographer's favor. All of that didn't happen only in New York, but those cases that did eventually resulted in certain policy changes, such as reversal of MTA ban on photography and "clarification" issued to the entire police force.

Just recently, a guy was stopped here in L.A. while taking photos inside a metro station by two sheriff's deputies and told it was forbidden to take pictures down there. He challenged them on that, and at one point even declined to answer any questions. They detained him for some 20 minutes, threatened to put his name on terror watch list and bunch of other nonsense but eventually had to let him go.

Fairly usual for L.A, but with a catch: he was wearing one of those personal video devices around his neck - very conspicuous device to anybody who knows what it is - and recorded the entire exchange. The video ended plastered all over the web, making those two deputies look like neanderthals. I don't know if he is going to take any further action, but I am certainly hoping he will sue, because that would be a great attention getter for this kind of cause.

Vaughn

4-Dec-2009, 23:27

Hello Boots! Thanks for posting, it is appreciated.

The only run in I have had was when I was an assistant for a photo workshop on the Oregon Coast many years ago (we definitely fell into the "commercial" catagory). We camped in State Parks and US Forest Service campgrounds. No problem with the Oregon State campgrounds (I would drive ahead of the group and get several campsites lined up for the night, and put up small signs on the bullentin boards "Photo Workshop in sites 23, 25, 27").

But when I did it in a US Forest Service camp and the rangers came to me and were going to kick us out because we were clearly a commercial operation. But since I worked for the Forest Service as a permanent seasonal ranger at the time, they let us slide (professional courtacy) -- I just had to change the signs to read "Weston family reunion". LOL!

Vaughn

Jeff Conrad

5-Dec-2009, 02:37

But to change the law, we must draw attention to it and nothing captures attention like a string of lawsuits.

In theory, I agree. Were it not for the time, money, and aggravation (and the chance of failure), I'd be up for trying it. Certainly, stating that you weren't shooting for profit and sale (perhaps using those exact words), refusing to identify yourself, and continuing to shoot would be a good way to call the ranger's bluff. In a lot of cases, it might work, especially if you had witnesses; the ranger might realize he was on shaky ground and decide not to risk the consequences. Most people buckle, so the question never gets called. But I've spoken with a few people in the DPR who said they wouldn't hesitate to make an arrest, and would let the DA figure out what to do with it. So you've still got to ask yourself one question ...

A ranger might arrest for the obvious offense of violating sect. 4316, and might also throw in resisting an officer (the standard tactic when it's necessary to arrest when there has been no crime). Chances are good that the DA would recognize a loser when he saw it and decline to charge, so you'd beat the rap but have nothing to challenge. You'd then sue under 42 USC 1983, claiming unreasonable search and seizure and whatever else your attorney could think of. The biggest hurdle would be even bringing suit; the ranger would immediately seek summary judgment on qualified immunity. In order for such a suit to proceed,

You must have been deprived of a Constitutional right. Whether that would be true would depend on what constitutes reasonable suspicion of shooting for profit and sale (for detention) and probable cause (for arrest). I'd hesitate to predict a judge's answers.

But the first question need not even be addressed unless the officer's conduct has violated clearly established law. Was it clearly established that it was wrong to assume a photographer was shooting for profit and sale because of his equipment? Since there's no jurisprudence on section 4316, this could be a tough row to hoe. If you were lucky, a judge might grant the motion but still rule that the conduct was unreasonable, setting the stage for the next photographer to file suit ...
From time to time, I've discussed instances of photographer harassment with friends who are attorneys. Though they've often expressed sympathy, not one has expressed interest in taking the photographer's case on spec ... In fact, I'm not sure I can think of even one attorney who's become wealthy suing the police.

I don't think this is to say that a series of carefully planned suits wouldn't eventually succeed, but rather that it would likely be a long and expensive undertaking, and the participants might need to be willing to risk arrests that could not be expunged.

Would I hold my ground as I've previously suggested? To be honest, I don't really know, but as David said, doing it in the field is a bit different from sitting here and saying I would.

I think a far better approach would be to petition the DPR to change the rule to reflect the original intent, as allowed under sections 11340.6 and 11340.7 of the California Government Code. Submitting a successful petition wouldn't be a trivial undertaking, either, but the aggravation, cost, and potential risk would probably pale in comparison with legal challenges.

Writing such a rule is not a simple task, as many federal, state, and local agencies have discovered. But absent other ideas, I'd be inclined to build upon the current 36 CFR 5.5(b) for photography in National Parks, and require permits for "commercial photography," which I'd define as

"Photography using models or props and done for the purpose of commercial advertising."

The definition is far from perfect (How many stand-mounted reflectors can a portrait photographer set up? Does it really matter?), but I honestly think it covers most of the bases, and it's far better than the current rule.

I have strong reason for preferring this approach: if an influential agency such as the California DPR (and hopefully also the US Department of the Interior) were to adopt such a definition, it might eventually be taken as the definition of "commercial photography" for other agencies that regulate it but fail to define it. So far, I've not had much luck with the DOI ...

In any event, we could make this happen if we decided to do it. I don't think the DPR are out to get us, but they're desperately short of money, time, and people, so they're certainly not going to do the job for us. And as I've said several times, griping here isn't going to do it, and as David said, neither is spitting in a ranger's face, much as I might feel like doing so.

rdenney

5-Dec-2009, 03:01

There is a difference between a surly ranger who is pushing people around for the sport of it, and a cop who believes commercial photography is a nuisance and legitimately believes one using a large-format camera represents that nuisance. The former should result in disciplinary action (but of course it rarely does).

And I did acknowledge that I was just a guy sitting at a keyboard 3000 miles away.

In the UK, where photography was covered under a new law that is now being abused by law enforcement, photographers went to their MPs who got together and passed a resolution clarifying that photographers should not be harassed. It hasn't solved the problem in all cases, but it makes me wonder if approaching California politicians instead of going through the rule-making process might have a better change of success. That sort of approach requires making the case to influential and politically connected people.

If California doesn't have politically connected photographers who could take this cause to the politicians, I don't know who would.

I still like the sign in a European museum. It define prohibited photographic actions clearly: "No lights. No legs."

Rick "who feels guilty for trying to get David Karp arrested" Denney

al olson

5-Dec-2009, 08:46

...
I have strong reason for preferring this approach: if an influential agency such as the California DPR (and hopefully also the US Department of the Interior) were to adopt such a definition, it might eventually be taken as the definition of "commercial photography" for other agencies that regulate it but fail to define it. So far, I've not had much luck with the DOI ...
...

It seems to me that DOI's Policy http://www.nps.gov/refdesk/Dorders/a20x1.html is very reasonable:

....................................................................................................................

STILL PHOTOGRAPHY

It is the policy of the National Park Service to allow and encourage photography within the National Park System, consistent with the protection and public enjoyment of resources.

The NPS will not require a permit for photographers, commercial or non-commercial, to go anywhere or to do anything that members of the public are generally allowed to go or do without a permit. This is true whether or not the photographer uses tripods, strobe lights, or interchangeable lenses. Coverage of breaking news never requires a permit but is subject to restrictions and conditions necessary to protect park resources, public health and safety, and to prevent derogation of park resources, values or purposes.

A permit is required if the Superintendent determines there is a potential of a photography project's harming or having an impact on the park's natural, cultural or recreational resources, or creating unacceptable health or safety risks, or disrupting visitor use and enjoyment. A permit is also required pursuant to 36 CFR 5.5(b) for persons taking photographs of vehicles, other articles of commerce or models for the purpose of commercial advertising.

If a photography permit is required, the NPS will impose only those conditions necessary to accomplish the needed resource protection or visitor enjoyment objectives. Liability insurance requirements and other limitations should not be made unduly burdensome. For advertising photography, it is appropriate to impose a permit condition that prohibits implied or stated Service endorsement of the advertised product or service.

...................................................................................................................

I carry a copy of this in each of my camera bags so that it is handy whenever I venture into any properties controlled by the Park Service, Forest Service, or the Bureau of Land Management.

David Karp

5-Dec-2009, 10:38

Jeff's last post says it far better than I could have.

And I am not suggesting that Rick or anyone is trying to get me arrested. :)

It is just that for most of us, whose only contact with law enforcement is usually a friendly hello or an occasional speeding ticket, it is a far different situation when you are detained because the officer thinks you are violating some other kind of statute, rule, ordinance, etc. For me, this was the first time this had ever happened. I quickly had to decide how to handle myself, and although I forcefully let him know that I knew my rights, I am sure this impacted his behavior, perhaps both negatively and positively.

For better or for worse, peace officers have a pretty broad leash when they detain someone. You certainly don't want to be belligerent or appear that way. An officer can justify their actions if they can paint a picture that makes it appear as if you were a threat. They are entitled to respond reasonably in such situations.

And I really don't want to "earn" a big settlement from the law enforcement agency. They don't just give money away. To earn big money, someone needs to rough you up. No thanks.

BrianShaw

5-Dec-2009, 10:51

Parks are not businesses, and (some?) Rangers are lazy. Promotion is their worst nightmare. The more people they can drive off, the better they like it.

Jim, I don't want to pick on words, but it is more correct to say "Parks were not in the past businessses." Here in CA they certainly are being treated as such by the state. If they can't cover their expenses they are considered for closure. The state has turned to, both, prostitution and theivery to meet their budget gaps.

BrianShaw

5-Dec-2009, 10:59

IMHO the worse case scenario is some artsy fartsy @$$hole with a camera vs. a ranger with a heavy badge and whose head has swelled to conform the shape of his hat's crown.

There is a gem of wisdom in your statement, perhaps. If I ever (and I never have) get challenged by a cop/ranger/etc I'm going to tell them that I'm just an 'artsy fartsy @$$hole with an expensive camera and not enough talent to take a commercially-viable picture' and see how they react to that. :D

BrianShaw

5-Dec-2009, 11:04

Absent legal grounds, confiscation of camera would arguably constitute armed robbery, though I think California would fall into the Pacific before a prosecutor would charge.

If the cop never brandished the weapon, it might be easier to try "Conversion" rather than armed robbery... or theft (even though we know htat would be the wrong charge).

Marko

5-Dec-2009, 11:20

For better or for worse, peace officers have a pretty broad leash when they detain someone. You certainly don't want to be belligerent or appear that way. An officer can justify their actions if they can paint a picture that makes it appear as if you were a threat. They are entitled to respond reasonably in such situations.

And I really don't want to "earn" a big settlement from the law enforcement agency. They don't just give money away. To earn big money, someone needs to rough you up. No thanks.

To use your case, the burden of proof lies on the ranger. Refusing to give up your constitutional rights - the 1st, the 4th and even the 5th (by refusing to answer any further questions after the threat past establishing your identity and purpose) - could not be construed as either obstruction or threat. Stating politely but firmly that he needs to show probable cause to chase you away, arrest you or convert your property you would have put him on the spot. He would either have to back down and away or he would have to follow through and indeed arrest you.

That Ranger knew it, that's where that confiscation warning BS came from - it was just a bluster. If he had any grounds for it, he would have done it right there on the spot.

Jeff Conrad

5-Dec-2009, 13:40

To use your case, the burden of proof lies on the ranger ...

Again, I agree in theory, and think that every capitulation tends to acquiesce in the idea that the bully rules the playground. But sanity must prevail, so the decision needs to be made in light of the dynamics of the particular situation. David did have one important thing going for him--a witness, so I doubt that much would ultimately have come of a refusal to cooperate. Chances are the ranger would have backed down if his bluff had been called. Or not. If he did arrest, David well might have prevailed in a civil suit; if lucky, he might have been awarded enough to recoup his legal costs. He may just have concluded that it wasn't worth the hassle, and that preserving an outing with his father was more important than making a point. I hate to second guess from the sidelines.

As to either robbery or conversion, they're both a bit fanciful, because the ranger would certainly have claimed that he did not intend to permanently deprive David of his property. I mentioned the former somewhat tongue-in-cheek in the manner in which police typically "over arrest" and prosecutors sometimes over charge. With California under water, the case would obviously never come to trial anyway :D

Jeff Conrad

5-Dec-2009, 13:41

It seems to me that DOI's Policy http://www.nps.gov/refdesk/Dorders/a20x1.html is very reasonable:

No disagreement. The linked document is actually taken from a 1990 memo from Interior Secretary Manuel Lujan, written at the request of ASMP, to guide a few rangers who were unaware of (or were simply ignoring) the law given by 36 CFR 5.5(b). That law reads

Still photography. The taking of photographs of any vehicle, or other articles of commerce or models for the purpose of commercial advertising without a written permit from the Superintendent is prohibited.

This, of course, is the source of the definition I proposed.

Public Law 106-206, codified at 16 USC 460l-6d, which took effect in May 2009, attempted to extend the NPS policy to every agency under the Department of Agriculture and Department of the Interior. It reads, in relevant part,

SECTION 1. COMMERCIAL FILMING.
(a) COMMERCIAL FILMING FEE.—The Secretary of the Interior and the Secretary of Agriculture (hereafter individually referred to as the ‘‘Secretary’’ with respect to lands under their respective jurisdiction) shall require a permit and shall establish a reasonable fee for commercial filming activities or similar projects on Federal lands administered by the Secretary. Such fee shall provide a fair return to the United States and shall be based upon the following criteria:

. . .
(c) STILL PHOTOGRAPHY.—(1) Except as provided in paragraph (2), the Secretary shall not require a permit nor assess a fee for still photography on lands administered by the Secretary if such photography takes place where members of the public are generally allowed. The Secretary may require a permit, fee, or both, if such photography takes place at other locations where members of the public are generally not allowed, or where additional administrative costs are likely.
(2) The Secretary shall require and shall establish a reasonable fee for still photography that uses models or props which are not a part of the site’s natural or cultural resources or administrative facilities.

There's a seemingly minor but potentially important difference in paragraph (2). There is no mention of "commercial advertising", so the questions arise, "Who is a model?" and "What is a prop?" Some within the NPS appear to answer with, "Anyone who poses for a photographer," and "Anything not part of the park's natural or administrative facilities." Sound like anything we've been talking about?

Now I think such people are in the minority, but the potential for abuse remains. Hence the reason for proposing the definition as I have done.

A careful read of Pub. L. 106-206 shows that it imposes an obligation on the Secretary but not on the public, so 36 CFR 5.5(b) remains in effect until a new rule is issued. I'm not sure that NPS personnel see it that way, however.

A new rule was proposed in 2007, but many negative comments were submitted, and no final rule was issued. The NPS intend to eventually propose a new version, but I have no idea of the time frame. I can't sensibly comment on a rule I haven't seen, but suffice it to say that I am concerned about the future NPS policy, which will probably apply to all of DOI.

The wording in Pub. L. 106-206 was taken from an NPS policy document, and such a policy could not legally have been in conflict with 36 CFR 5.5(b), so I don't see how Pub. L. 106-206 could have a different meaning, either. I think the federal courts would necessarily reach the same conclusion as well if someone had half a million to throw at it. Far better, it would seem, to fix the problem without help from the courts.

Nathan Potter

5-Dec-2009, 15:12

In "boots" situation I might have tried a different tactic. Since he and his family were being harassed and deprived of their rights pursuant to state park regulations I might get the identification of the ranger then make a citizens arrest. Request the ranger stay put and use your cell phone to call the police or 911. When they arrive fill out the paper work as required and go to headquarters with the ranger to iron out the mess.

There are some caveats in this approach in that some states ( maybe CA) limit citizens arrest to felonies only, but I think most allow misdemeanor transgressions. In any event getting the police involved as a third party can quickly cool the situation for the benefit of both parties.

I've tried this twice with considerable satisfaction (not photo related situations). I've found law enforcement particularly pliable in desiring a peaceful solution to conflict and mostly they have a real ability to act as a neutral party in settling disputes and avoiding court procedures. I suppose it eliminates some of the hated paper work.

Nate Potter, Austin TX.

Jeff Conrad

5-Dec-2009, 16:35

Nate,

I'm with you in spirit. But you're by far a braver man than I. I don't know quite how it works in Texas, but in California, while a peace officer can arrest on probable cause that an offense has been committed, a private person can only arrest when an offense actually has been committed. Moreover, unlike a peace officer, a private person has no immunity from suit, so an arrest of a peace officer is a mighty risky proposition. If the other peace officer to whom the arrested officer must be handed over doesn't buy the arrest, he's almost certain to arrest for false imprisonment and battery of a peace officer.

It's not clear to me that a crime was committed in Boots's incident. A case might be made for false imprisonment (and because I can't conceive of a peace officer doing so without force or threat, it would arguably be a felony). But the ranger would almost certainly have claimed that Boots voluntarily complied with the request to let the ranger run a warrant check, and the courts would most likely have agreed (I know, it's nuts, but they don't consult me). The only way to force the issue would have been to refuse to give his name, and ask if he was free to go. If the answer was "No," he could ask what crime he was suspected of, and what facts supported that suspicion. The ranger would probably have responded with the obvious: "You're shooting commercially without a permit," and "Because of your equipment." The second answer would of course be ridiculous, but could later do the ranger in. I suppose the detention could have been regarded, probably correctly, as unlawful, and a citizen arrest then made on that basis. But resisting a lawful detention is a crime, so once again, the person contemplating such an arrest would have to ask himself one question ...

A much better course would probably be to not resist the detention; the ranger could only have held him for a brief period, and would probably not even have arrested. If he had arrested, the DA would almost certainly have declined to charge. Boots could then have brought action under 42 USC 1983. But he well may have better uses for his time. And as I've said, there could be some question as to whether there was a violation of clearly established law. Yeah, again, it's nuts, but that's the way it often goes down, even with district judges who are generally reasonable.

As I've mentioned, I've never had a problem in a State Park, and the experience of most photographers I know has been similar. It's obvious from posts in various forums over the past few years that, although hassles may be infrequent, they are more common than I thought. One reason they continue is that few people complain. The DPR attorney with whom I dealt in obtaining the rulemaking file for 14 CCR 4316 said the DPR office in Sacramento had never had a single complaint about the law, so they don't see a problem. Although it's certainly better to complain to the local region than to do nothing, the message apparently isn't making it up the chain of command. In Boots's instance, the response of Superintendent Lingenfelter demonstrates that he's part of the problem.

One small way to change this would be for Boots (and perhaps David) to formally complain to the DPR in Sacramento. I doubt that a couple of complaints would change much, but at least the DPR could never honestly say never again.

As I've beaten to death, the only real fix is to get the law changed, and I think a well-planned petition to the DPR is the best way to do it. I probably could put together a pretty good case for making a change, but since I've never even been approached by a State Park ranger, and I'm not a Sacramento player, I don't think I'd be taken very seriously.

If past experience is any guide, this will all be forgotten in a few days, and nothing more will come of it, so the beatings will continue until morale improves.

boots mcghee

5-Dec-2009, 18:34

Actually Jeff, you'd be brilliant as a petitioner. I was interviewed on our local radio station today for 2 hours and used many of your helpful comments to achieve credibility and give a sense of legal knowledge. I sincerely thank you for allowing me to sound more intelligent than I am. Unfortunately, call ins migrated to off subject and rediculous comparisons. I kept trying to stay on subject, was called whiney and fragile by a guy and forgot to tell him that it wasn't me who was fragile, it was our constitution.
Thank you all for this thread!

John Kasaian

30-Nov-2011, 09:30

This ougght to get interesting....

BrianShaw

30-Nov-2011, 09:32

Sorry about your experience. Suggest you delete your admission of guilt immediately, lest it be used against you. I think the definition of "commercial" is based on the fact you got paid, not so much on how the buyer will use the images.

Michael Graves

30-Nov-2011, 09:38

In my opinion the ranger was well within his rights and the scope of his responsibility. As stated in the article, the purpose of the regulation is to control the congestion caused by extensive setups involving cameras, tripods and lighting gear. The use of reflectors to control lighting is a dead give-away that the user is at least a few steps above the casual family shooter.

I do, however, think that as soon as it was established that the photographer -- professional or otherwise -- was shooting a family portrait for a holiday card, the ranger should have backed off. Calling him the gestapo, on the other hand, was WAY out of line and a typical liberal over-reaction.

BrianShaw

30-Nov-2011, 09:45

I do, however, think that as soon as it was established that the photographer -- professional or otherwise -- was shooting a family portrait for a holiday card, the ranger should have backed off.

That is why I'm VERY careful about how I represent myself to "authorities". I no longer shoot professionally so I don't call myself a professional.

When asked why I have "professional equipment" I tell people that the equipment I use looks professional, and indeed was at one time, but only a fool would use such gear professionally anymore. Then I tell them that I'm not really very talented. Then I tell them that, and this is the honest truth, I'm just a family man taking pictures of my family (or scenery) to amuse myself.

Seldom have I been questioned, let alone interrogated. In all but one situation they walk away convinced that I'm just a quirky guy who has (had, really) too much spare money to spend on cameras. And in the lone situation where they still had questions, they asked me to sign a release... which they had a clipboard full of. I complied, signing "F. Yu". The lady actually smiled and said, "Thank you Mr. Yu... I hope you get some nice shots." If only I looked Asian!

Robert Oliver

30-Nov-2011, 09:55

I've had more than my fair share of issues with rangers and police officers. If you ever want to get into a good discussion with law enforcement... ask about the "SPIRIT" of the law.

I actually had one ranger tell me it was to keep people from making money on public lands.

As a previous poster pointed out, the law is intended to keep film crews from damaging park property, causing traffic issues and disrupting other visitors.

I got hassled recently at a San Diego County Park regarding not having a permit to use my "professional" 4x5 equipment to photograph a building. I contacted the county parks department and was only given a link to the website below.... The problem is that the website says "all photographers/filmmakers" but when asked for the actual wording of the law, I got no response.

http://www.co.san-diego.ca.us/parks/filmshoot.html

The funny part is that this last Ranger considered 4x5 professional equipment and DSLR cameras as amateur. I tried to educate him on the changes in the industry over the last 10 years, but I don't think he heard any of it.

Try carrying a 4x5 camera into Mission San Juan Capistrano....

Ivan J. Eberle

30-Nov-2011, 10:00

Coming soon to a mailbox near you: A Zombie Christmas Carol

Robert Oliver

30-Nov-2011, 10:01

The sad thing is I imagine with the budget perils facing California state parks, rangers will be forced to become income generators instead of being stewards and protectors.

jb7

30-Nov-2011, 10:04

[...] An officer can justify their actions if they can paint a picture that makes it appear as if you were a threat. They are entitled to respond reasonably in such situations. [...]

Perhaps surprisingly, it would appear that your Park police are a bunch of Stuckists,
and based on the scenario outlined above, are hardly likely to appreciate photography at all.

I suppose it could have been worse; if you had been trying to make some conceptual art,
the officer might have been forced to draw his weapon...

BrianShaw

30-Nov-2011, 10:06

Try carrying a 4x5 camera into Mission San Juan Capistrano....

I get to San Juan C. once per year. Last year I had Hassy (in a bag) and a monopod. As I was paying admission I got a stern warning from the docent about their commercial photography ban. I told him I wan't engaged in commercial photography. He winked. I continued by telling him that I was visiting the Mission to reflect and pray for a cure to my cancer (for those who don't know, they have a chapel dedicated to Saint WhoKnowsWhoHeIs, the patron saint of cancer)... and was surprised that I had to pay. He smiled and handed me my change. This year there were too many bus loads of school kids so I sipped coffee, and then ate a burrito across the street and enjoyed the view of the Mission from ourside the walls.

Richard K.

30-Nov-2011, 10:08

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... :)

BrianShaw

30-Nov-2011, 10:12

I'm assuming you mean she was admiring your CAMERA equipment, right?

Drew Wiley

30-Nov-2011, 10:33

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.

rdenney

30-Nov-2011, 10:47

In my opinion the ranger was well within his rights and the scope of his responsibility. As stated in the article, the purpose of the regulation is to control the congestion caused by extensive setups involving cameras, tripods and lighting gear.

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).

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

BrianShaw

30-Nov-2011, 10:54

Nobody said anything about anyone getting paid (the only definition of "commercial" that makes any sense to me).

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.

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.

Richard K.

30-Nov-2011, 11:12

I'm assuming you mean she was admiring your CAMERA equipment, right?

I did say smile, not laugh...:rolleyes:

Brian Ellis

30-Nov-2011, 12:03

Brian... are you talking about "Merry22" (post 62, this morning) or "SamReeves" (OP, 2009)? I think the latest blast of postings is in response to the former's post earlier this AM. If so, regarding #3... I'd consider a Citation To Appear as basically getting "ticketed". Having received one (non-photographic issue but another one of those "I (LEO) don't think you can do that here but I don't have any real knowledge of that law nor do I have any justification to arrest you but I'm going to make you explain yoruself to a judge" situations), there's not much of a difference except with a "ticket" one can just pay the fine (AKA, plead guilty) and with the Cite To Appear you need to chat with a judge.

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.

BrianShaw

30-Nov-2011, 12:19

classic! :)

Jeff Conrad

1-Dec-2011, 00:09

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 (http://www.largeformatphotography.info/photo-permits/) on the main page here, under California State Parks (http://www.largeformatphotography.info/photo-permits/#DPR).

A glance at the link rulemaking history (http://www.largeformatphotography.info/photo-permits/PermitRegulations.htm#T14CCR4316) 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.

Richard K.

1-Dec-2011, 07:41

||||||||||||||||||||||||||||Having said all this, ||||||||||||||||||||||

And VERY well said, very informative, thank you!

DarkroomDan

1-Dec-2011, 08:17

Next it’ll be the thought police after you.

Hah -- They're not going to find anything.

Dan

BrianShaw

1-Dec-2011, 08:18

"Rick "something's missing here" Denney"

perhaps.

But the 'admission of guilt' is in this thread, "I knew that a permit was required..." ;)

BrianShaw

1-Dec-2011, 08:26

Jeff... are you serious: "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." ? None of these happened!

rdenney

1-Dec-2011, 08:46

"Rick "something's missing here" Denney"

perhaps.

But the 'admission of guilt' is in this thread, "I knew that a permit was required..." ;)

Quote the sentence correctly: "I do realize that commercial shoots require a permit, however, this was for the couple's personal use and we were only 4 people with very little equipment and not disrupting the park in any manner."

This does not sound at all like, "I was hired by a couple to make their engagement portraits..." It sounds to me like a specific disclaimer of "profit and sale".

I think you are extrapolating from what was written. But there may be something not written, as I said from the outset.

Another thought, sparked by Jeff: If the restriction is on photography for "profit and sale", then how could anything on the memory card be used as evidence of that? If the restriction is based in spirit on preventing park disruption (despite how the final law was written), then how could anything on the memory card be used as evidence of that? It's not like the photos on the memory card are likely to show a contract with money changing hands or a lighting setup with hapless park users queued up trying to navigate around it. This gets back to the old problem making the judgement on the basis of the photos looking "professional", which is at the root all manner of stupidity (ref: Walmart clerks refusing to make prints for a customer for fear of violating a professional photographer's copyright on the basis that the photos look professional, especially if the customer appears in the photo--as if the use of competent lighting prevents use of a self-timer).

Rick "who has made many professional-looking portraits and wedding-related photos for friends on a strictly non-commercial basis" Denney

Steve Smith

1-Dec-2011, 08:52

because permits are free, there wasn’t even any potential revenue.

If permits are free and anyone can get one just by asking, what is the point of them?

Steve.

rdenney

1-Dec-2011, 09:02

If permits are free and anyone can get one just by asking, what is the point of them?

It gives the park people a heads-up on what might be a disruption.

That's exactly how it was explained to me by a NPS ranger at a National Historical Park. I might have told that story even in this thread. She asked me what I was about, and I told her I was making photos as a hobby. She looked at the equipment, and my friend deadpanned, "It's an expensive hobby." We all laughed. She then explained that they sometimes had setups that attracted a crowd and required some extra policing, and that's why they wanted the heads-up. That seems to me completely reasonable, especially considering how big some productions can be.

What seems different is the friendly application of good sense in the interactions.

Rick "who would expect some policing if causing a disruption" Denney

BrianShaw

1-Dec-2011, 09:10

Rick, see posts 75 & 76. We already stipulated regarding assumptions. I'm going to continue making my assumption, though, in the absense of clarification from Merry; you can do so with your assumption. I would assume (yes, another assumption but one that is the basis for my other assumption) that this would have been over in a flash had Merry told the Ranger that he was just a friend taking personal pictures of friends.

Altogether too often folks post messages in anger/amazement but leave out facts... and sometimes they don't even return to the thread to clarify. (I sometimes wonder if they are lurking or just got if off their chests and gone on with their lives!)

And, yes dear... I paraphrased Merry but used quotation marks. Bad, bad me. :)

I've experienced receipt of a Citation to Appear in Los Agneles County that was equally without basis (totally different type of "offense"), but was the Sherrifs way of acknowledging that "something" happened that "might" be wrong and but had no just cause or evidence to justify making an arrest. As the Sherrif said, "(paraphrased) You can tell it to the Judge an dhe'll sort things out." In my situation, the Sherrif had the good sense to tear it up before I walked away... based on additional observations that clarified his understanding of the situation. I never understood what good "telling it to a judge" is when there was never an arrestable offense.

The confiscation of the CF card (or was it a SD card) is outrageously wrong, IMO. Chances are that it will never find its way to the hearing... "what memory card?" Handing it over was Merry's mistake. Refusal probably would have caused the Ranger to very quickly retract that request.

Ivan J. Eberle

1-Dec-2011, 09:18

Rampant throughout this discussion is seems to be a conflation of the rules between California State Parks, and the National Park Service. NPS is easygoing most places. CA is cash-strapped and lately seems to be putting the screws to everyone.

CA State Parks has long had arcane policies for commercial photography. Pt Lobos, for instance, has a permit restriction that requires applying to a film commission weeks/months in advance and paying an exorbitant fee for something as silly as shooting a couple's engagement (commercially).

The really annoying part about all this is that such rules have been on the books for several decades, are routinely and blithely ignored for the most part, with the rare enforcement action seemingly at the caprice of a ranger having a bad day.

BrianShaw

1-Dec-2011, 09:32

cyrus

1-Dec-2011, 09:33

The supervisor did suggest calling ahead and announcing that I was coming, or even stopping in the office when I get to the park to tell them that I am going to take photos, and that I am not on a pro gig, and that I have unusual equipment.

Yeah it is precisely this sort of "suggested" thing that little by little becomes a "required" thing. Why not "suggest" that the officers not overstep their authority in the first place? Why is the burden shifted onto the photographers?

rdenney

1-Dec-2011, 09:36

Rampant throughout this discussion is seems to be a conflation of the rules between California State Parks, and the National Park Service. NPS is easygoing most places. CA is cash-strapped and lately seems to be putting the screws to everyone.

I don't understand the cash-strapped part. If there is no fee, are they interested only in seeking a fine? In this case, the ranger so overstepped his bounds (assuming we heard the story correctly) that it is likely to cost the state of California more than they could possibly collect in fines, if Merry were to pursue it. (It would cost Merry also, of course.)

You are right that the NPS and most state park services are separate things. But sometimes they share the same principles and justifications for the rules, and often they use quite similar wording in their rules. If the NPS demonstrates a reasonable enforcement policy, shouldn't we be able to use that as an example of what a state should do?

By the way, on the sign: Even if there is an ordinance authorizing a traffic control device, it must be displayed before it can be enforced. Traffic citations when signs are missing or unclear are routinely overturned. There is a limit to how far "ignorance of the law is no excuse" can be taken, it seems to me.

Rick "who knows a little bit about traffic control devices" Denney

BrianShaw

1-Dec-2011, 09:39

Yeah it is precisely this sort of "suggested" thing that little by little becomes a "required" thing. Why not "suggest" that the officers not overstep their authority in the first place? Why is the burden shifted onto the photographers?

That's a rediculous request.

rdenney

1-Dec-2011, 09:54

cyrus

1-Dec-2011, 09:58

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.

Sign or not, everyone is assumed to be informed of the law. So even if there was no sign, as long as there was a law against commercial photography without a permit, that's all the cop needs to cite you if you were suspected of engaging in commercial photography without a permit. You don't need to be "arrested" in order to have your CF card seized as evidence, and there's no warrant required for that.

(On the other hand, and for the benefit of internet surfers: the police DO NOT have the right to demand to see your photos and/or then demand that you erase them under ANY circumstances. If you were in fact violating the law, the photos constitute evidence and destruction of evidence is itself a crime. And if you weren't violating any laws, then the police dn't have the right to hassle you in the first place.)

BrianShaw

1-Dec-2011, 10:00

Altogether too often folks post messages in anger/amazement but leave out facts... and sometimes they don't even return to the thread to clarify. (I sometimes wonder if they are lurking or just got if off their chests and gone on with their lives!)

So Rick... there might not be much more to speculate or extrapolate about at this point. What's your speculation/extrapolation on the above quote. Where do you think these people go? :D

BrianShaw

1-Dec-2011, 10:05

You don't need to be "arrested" in order to have your CF card seized as evidence, and there's no warrant required for that.

I did not know that. Thanks for the clarification. I erroneously 'assumed'.

Question... does one get a 'receipt' for seized goods?

cyrus

1-Dec-2011, 10:06

BTW, Rick... did I ever tell you about the time Walmart told me I couldn't copy a photo on the self-serve machine becasue they "(paraphrased) thought it looked like it might have been a professional picture"? I showed it to the clerk and told him it was over 100 years old so who knows if it was professional or not. Clerk asked me to get the photographer to fill out and sign the consent form...

Seriously!

Yeah actually the clerk was probably justified in that. You can't reasonably expect a Walmart clerk to have the training/knowledge to determine when this can constitute copyright infringment and when not. See, the copyright laws are a real bitch and would make them liable if you used their machinery to violate someone else's copyright. What's Walmart supposed to do - they're stuck between a rock and a hardplace. The real problem is with the law not Walmart and certainly not the clerk.

cyrus

1-Dec-2011, 10:07

I did not know that. Thanks for the clarification. I erroneously 'assumed'.

Question... does one get a 'receipt' for seized goods?

The seized "evidence" should be noted on the citation ticket itself.

BrianShaw

1-Dec-2011, 10:09

Yeah actually the clerk was probably justified in that. You can't reasonably expect a Walmart clerk to have the training/knowledge to determine when this can constitute copyright infringment and when not. See, the copyright laws are a real bitch and would make them liable if you decided to use their machinery to violate someone else's copyright. What's Walmart expected to do? The problem is with the law not Walmart and certainly not the clerk.

True enough. In the end I marked the form "Photo not in copyright" and signed it myself. The clerk looked at that and filed the form without question. I find the story amusing because the picture was really, really old... and looked really, really old.

rdenney

1-Dec-2011, 10:16

So Rick... there might not be much more to speculate or extrapolate about at this point. What's your speculation/extrapolation on the above quote. Where do you think these people go? :D

I acknowledged incompleteness (at the least) or deceit (at the most) as a possibility in just about every post I've written since Merry2's post, as did Jeff in his response.

Merry2 has written precisely ONE (1) brief post on this topic, and we only have one side of the story. We are all extrapolating in the absence of facts. The difference is, some of us are admitting it.

Rick "enough, already!" Denney

cyrus

1-Dec-2011, 10:17

True enough. In the end I marked the form "Photo not in copyright" and signed it myself. The clerk looked at that and filed the form without question. I find the story amusing because the picture was really, really old... and looked really, really old.

Yeah these copyright laws are getting ridiculous and are pushed by corporations. Now they want the power to shut down websites without ever going to court too.

BrianShaw

1-Dec-2011, 10:21

The difference is, some of us are admitting it.

Rick "enough, already!" Denney

Now you are being offensive Rick. What's this attitude about? I was just asking a quesiton... what's your problem? Who's not admitting anything?

BrianShaw

1-Dec-2011, 10:25

p.s. Good bye cruel world. I have better things to do today. :)

rdenney

1-Dec-2011, 10:36

The seized "evidence" should be noted on the citation ticket itself.

Shouldn't there be some connection between the seized evidence and the law the cited person is accused of breaking? How could photos on the memory card demonstrate "profit and sale", as is the standard set by the law in question? I thought that seizures of evidence required identification of what the evidence might show, to prevent fishing expeditions without due process. Otherwise, what's to prevent, say, a traffic cop from seizing a vehicle that has a sat-nav system on the hunch that the nav system might show the driver exceeded the speed limit? Why didn't the cop seize the "professional" camera, too? Of the lighting equipment that would really demonstrate disruption? Or a statement from the engaged couple that they had hired the photographer on a commercial basis? (which the cop might actually have done, of course). I would love to see the DA try to prove the case given the wording of the law (as Jeff provided it) and what could possibly be on a memory card.

Rick "who has never heard of property seizure as a part of issuing a citation before" Denney

cyrus

1-Dec-2011, 11:00

Shouldn't there be some connection between the seized evidence and the law the cited person is accused of breaking? How could photos on the memory card demonstrate "profit and sale", as is the standard set by the law in question? I thought that seizures of evidence required identification of what the evidence might show, to prevent fishing expeditions without due process. Otherwise, what's to prevent, say, a traffic cop from seizing a vehicle that has a sat-nav system on the hunch that the nav system might show the driver exceeded the speed limit? Why didn't the cop seize the "professional" camera, too? Of the lighting equipment that would really demonstrate disruption? Or a statement from the engaged couple that they had hired the photographer on a commercial basis? (which the cop might actually have done, of course). I would love to see the DA try to prove the case given the wording of the law (as Jeff provided it) and what could possibly be on a memory card.

Rick "who has never heard of property seizure as a part of issuing a citation before" Denney

That would be up to the judge to decide. The potential relevance of the card is in proving that you were in fact engaged in photography. The way it works is that the police seize whatever they think is relevant, and then the relevancy of the evidence is determined by the judge. They might very well decide to seize the entire camera if they wanted to.

If you think that's silly then you should know about our civil forfeiture laws (http://en.wikipedia.org/wiki/Asset_forfeiture#Asset_forfeiture_in_the_United_States). Under those laws, whatever was used in the commission of a crime (not necessarily by you) can be seized and eventually sold off by the police even if it had only the vaguest relationship with the crime, and even if you are never charged nor convicted of a crime. Someone stole your car and used it to carry drugs? Your car can be seized and sold off. You were carrying a large amount of cash when you were pulled over for driving without a license? Your cash can be seized (http://reason.com/archives/2010/01/26/the-forfeiture-racket). It would be YOUR burden to prove that you were entitled to have the property returned. The potential for abuse is obvious (http://en.wikipedia.org/wiki/Tenaha,_Texas#Police_seizures_scandal)

John Koehrer

1-Dec-2011, 11:00

I doubt that the police could confiscate the card, or the camera, baseball cap,or shoes.
There have been a number of "gestapo" threads on the net.they all seem to end up with the photographer being vindicated of any offense.
If police can't take film, why can they take the card?

BrianShaw

1-Dec-2011, 11:02

Perhaps they can't, or shouldn't, John... but it is reported that they did.

rdenney

1-Dec-2011, 11:10

Now you are being offensive Rick. What's this attitude about? I was just asking a quesiton... what's your problem? Who's not admitting anything?

Let's review. You quite clearly asserted that there had been an admission of guilt (64). I didn't see any such admission and said so (75). You suggested that it was an obvious assumption (76), or maybe I missed that point. Maybe you were acknowledging what I was saying, and that may be the problem. But then you asserted the admission of guilt again (83). I suggested that your assumption was an extrapolation (85). You insisted that your assumption was realistic (88) and that I was not acknowledging that realism (96). I suggested that I had acknowledged that possibility continuously, but thought it was wrong to extrapolate (101). Did I miss something?

Rick "proving Paul's warning that language is imprecise even when precision is assumed" Denney

BrianShaw

1-Dec-2011, 11:14

Did I miss something?

Interesting waste of your time. Yes you did miss something... the fact that I'm putting you on my ignore list. I'm discussing... not trying to win a debate with you (or anyone else). You got the "last word" in. Good for you, Rick "the know it all" Denny... you graduated from passive-agressive to agressive!

Now let's test how good that ignore function works. :)

cyrus

1-Dec-2011, 11:18

Let's review. You quite clearly asserted that there had been an admission of guilt (64). I didn't see any such admission and said so (75). You suggested that it was an obvious assumption (76), or maybe I missed that point. Maybe you were acknowledging what I was saying, and that may be the problem. But then you asserted the admission of guilt again (83). I suggested that your assumption was an extrapolation (85). You insisted that your assumption was realistic (88) and that I was not acknowledging that realism (96). I suggested that I had acknowledged that possibility continuously, but thought it was wrong to extrapolate (101). Did I miss something?

Rick "proving Paul's warning that language is imprecise even when precision is assumed" Denney

There doesn't have to be an admission of guilt. If the cop suspects that the fellow was engaged in commercial photography without a permit, he can issue the ticket and seize whatever evidence he thinks is relevant. Then it is up to the judge/jury to decide.

rdenney

1-Dec-2011, 11:19

Interesting waste of your time. Yes you did miss something... the fact that I'm putting you on my ignore list. I'm discussing... not trying to win a debate with you (or anyone else). You got the "last word" in. Good for you, Rick "the know it all" Denny... you graduated from passive-agressive to agressive!

Now let's test how good that ignore function works. :)

How could this topic be anything but a debate?

Rick "wondering what's wrong with debate" Denney

cyrus

1-Dec-2011, 11:20

I doubt that the police could confiscate the card, or the camera, baseball cap,or shoes. If police can't take film, why can they take the card?

Who says they can't take film, cameras, cars, shoes or whatever else?

BrianShaw

1-Dec-2011, 11:24

There doesn't have to be an admission of guilt. If the cop thinks there the fellow was in fact engaged in commercial photography, he can issue the ticket. Then it is up to the judge/jury to decide.

I wouldn't go there if I were you.

The OP-2 (Merry) never said whether he/she was a professional working a job, or if he/she was just a friend taking pics of a friend... but hen acknowledged a knowledge that permits are required for a pro shooting inthe park. I was simply trying to say that IF the OP-2 was indeed a pro and not just a friend of the subject... stating in public (on this forum, specifically) that he/she knew about the permit requirement MIGHT be construed as an admission of guilt if that were brought to light during whatever happens next. That's all. It had nothing to do with the Ranger's actions or decisions as it was reported in Merry's post.

I'm sure there will be another rendition offered... but that's OK.

cyrus

1-Dec-2011, 13:13

I wouldn't go there if I were you.

The OP-2 (Merry) never said whether he/she was a professional working a job, or if he/she was just a friend taking pics of a friend... but hen acknowledged a knowledge that permits are required for a pro shooting inthe park. I was simply trying to say that IF the OP-2 was indeed a pro and not just a friend of the subject... stating in public (on this forum, specifically) that he/she knew about the permit requirement MIGHT be construed as an admission of guilt if that were brought to light during whatever happens next. That's all. It had nothing to do with the Ranger's actions or decisions as it was reported in Merry's post.

I'm sure there will be another rendition offered... but that's OK.

And I agree with you. Heck even if the OP-2 didn't say anything self-incriminating, if the cop suspects of other reasons that the OP-2 was a pro then the cop can issue the ticket. It would then be up to the judge to decide the issue.

rdenney

1-Dec-2011, 13:20

I was simply trying to say that IF the OP-2 was indeed a pro and not just a friend of the subject... stating in public (on this forum, specifically) that he/she knew about the permit requirement MIGHT be construed as an admission of guilt if that were brought to light during whatever happens next. That's all. It had nothing to do with the Ranger's actions or decisions as it was reported in Merry's post.

I'm sure there will be another rendition offered... but that's OK.

Had you said it this way before, we might have followed a different track.

I don't think that acknowledging the permit requirement is an admission of guilt, though. UNLESS the guy was seeking the mercy of the court on the basis of there being no sign. Or, as you say, UNLESS OP-2 really was working for "profit and sale".

Rick "a guilty guy should really just pay the fine" Denney

BrianShaw

1-Dec-2011, 13:36

Judge: Were you taking pictures of an engaged couple in Malibu State Park on suc-and-such a day?

OP-2: Yes.

Judge: Are you a professional photographer?

OP-2: Yes, but...

Judge: No buts. Are you a professional photographer and were they paying you? Recall that you are under oath.

OP-2: Yes, but not getting paid much because they were friends.

Judge: So, are you stating that you are a professional and were getting paid to take engagement pictuers of your friends at Malibu State Park. Did you know there was a permit required to conduct commercial photography at that location?

OP-2: Well, there wasn't a sign that I saw.

Judge: Please just answer my question.

OP-2: Yes, I even mentioned that in a posting in an online photography forum.

Judge: So you knew you were violating the law, eh?

OP-2: Umm, I guess so.

Judge: Please speak up and repeat what you just said.

OP-2: Yes.

Judge:

BrianShaw

1-Dec-2011, 13:38

Judge: Were you taking pictures of an engaged couple in Malibu State Park on such-and-such a day?

OP-2: Yes.

Judge: Are you a professional photographer?

OP-2: No, just a nice guy being a friend to my friends.

Judge: Are you aware that commercial photography in that park requries a permit?

OP-2: Yes, but I wasn't engaged in comemrcial photography.

Judge:

BrianShaw

1-Dec-2011, 13:41

Judge: Were you taking pictures of an engaged couple in Malibu State Park on such-and-such a day?

OP-2: Yes.

Judge: Are you a professional photographer?

OP-2: No.

Judge: Then why were you using a Hasselblad?

OP-2: I wasn't using a Hasselblad

Judge: Well, the Ranger thought that was a mighty fancy looking camera.

OP-2: Did he notice my expensive shoes also?

Judge:

cyrus

1-Dec-2011, 13:57

Actually, I was watching the footage of the UK embassy attack in Iran, and noticed that several press photographers (who were wearing special vests and jackets) were using P&S cameras.

Final nail in the "expensive camera = pro" argument.

Drew Wiley

1-Dec-2011, 14:52

In certain parks of any sort of jurisdiction a few rangers get under a siege mentality
dealing with riffraff. Best to just stay away from those places. About the most crowded state park around this area would be Pt Lobos on a sunny summer afternoon.
Again, best to visit a weekday or some other time of year. But view cameras and
Hassies are commonly in sight (a lotta Weston wannabees), and nobody seems to
make a fuss. But if you've got an assistant holding a studio-looking reflector and
someone posed specially dressed (or undressedA), I'd guess you'd be fair game. Not exactly like a piece of gatorboard to light up the backside of a cypress limb. I got a
lecture just once by a newbie NP ranger in the Golden Gate area, but once she got
used to things, just gave me a quiet smile any time the 8x10 was propped up thereafter.

tgtaylor

1-Dec-2011, 16:00

Maybe I'm lucky or politically correct or something but I've never been hassled in a state or federal park and I've set-up big cameras as well as big telescopes with power packs in them. Somewhere in this thread someone was relating how he got hassled photographing inside of one of the California missions. Shoot, I remember setting up a Toyo Robos monorail inside Mission Carmel shortly after a service. A priest came out while I was setting-up the camera to get something from the organ's bench and about 30 seconds after he left the lights were turned on! They were turned off after the service and I was comtemplating having to take long exposures in dim light until he turned them on.

I hope my luck or whatever continues.

Thomas

Alan Curtis

1-Dec-2011, 16:34

About three weeks ago I was in Pt. Lobos. The ranger asked me what type of View Camera I was using, I said a Zone VI, his reply was...I've seen several of those recently and wished me a good day of photographing as he walked away.

Vaughn

1-Dec-2011, 17:23

Maybe I'm lucky or politically correct or something but I've never been hassled in a state or federal park...Thomas

I never have either. Though a long while ago, I had a State Park ranger come up and ask me if I was a professional. I think it was my "You mean people can get paid for this?!" look on my face that convinced him otherwise. I think I mumbled something along the lines that I was an artist and I was making art. But in any case, it satisfied him. But I did not feel like I was being hassled, he was just doing his job -- after all, I spent thirteen seasons as a ranger-type (Nat. Forest Service, not State).

The folks at the local State Park where I do most of my photography at (for the last 30+ yrs) have never given me any hassle nor in the other State Parks around here. But then, we rarely meet in the woods. And the level of usage is so much lower up here -- no city of a significant size within a halfday's drive.

I have taken my boys there to race banana slugs at the same Park...it was a yearly event, but stopped when the PETA people stepped in. I'm just joking about the PETA bit, but it was stopped to protect the slugs and for the Park to be more consistant in its protect-the-environment message.

A ranger did hassle me for walking along a dirt road with a beer in my hand. I was just scouting a little without the 8x10 on my back. She also told me to stay on the trails. I did not bother to tell her that there were no trails to where I wanted to go...I did not think she'd understand. So she drove off, I walked back to my car, grabbed the 8x10 and another beer , and made my way up a narrow canyon

This is what was up the narrow canyon -- this was taken later when my three boys came along, they may be difficult to see in the photo. Image is from a digitally photographed 8x10 platinum/palladium print. 159mm f/12 lens

Bill Burk

1-Dec-2011, 20:19

OP-2 deleted his/her post, or perhaps disappeared entirely.

I drove past same beach two days prior to the OP-2 incident and was struck speechless by the "private property no trespassing" signs posted on EVERY rock on the perfectly manicured lawn of Pepperdine University. There must be a state of high anxiety in the area. Perhaps fear of a popular movement taking camp? Good thing I was out of film at the time.

I have only once been accosted by officials and once they realized it really was a camera and a tripod they were happy to let me go. It was a week or so after a massacre in similar circumstances and I fit the profile of someone about to do in a few innocent patrons of a fast-food establishment. What relief they must have felt to find out I was only a photographer. My friends to this day say I should have told them they'll never take me alive.

I am going to have to make a secret compartment on my 4x5 for an SD card in case I ever get stopped at a State Beach. You can tell me what kinds of images I should plant on it, but since I really am a family man out taking pictures of my family, I will have to pass on rear views.

The trick at Capistrano is to tell them the camera is Catholic...

http://www.beefalobill.com/images/_MG_7229.JPG

Jeff Conrad

1-Dec-2011, 22:02

There doesn't have to be an admission of guilt. If the cop suspects that the fellow was engaged in commercial photography without a permit, he can issue the ticket and seize whatever evidence he thinks is relevant. Then it is up to the judge/jury to decide.

This simply isn’t true—at least legally. If a peace officer has probable cause to believe that the person was engaged in photography “profit and sale,” the officer can issue a citation. Similarly, if there is probable cause that something such as a memory card contains evidence of a crime, the officer can seize that item without a warrant.

Jeff Conrad

1-Dec-2011, 22:21

IF the OP-2 was indeed a pro and not just a friend of the subject... stating in public (on this forum, specifically) that he/she knew about the permit requirement MIGHT be construed as an admission of guilt if that were brought to light during whatever happens next. That's all.

Though it’s possible that a prosecutor might discover a post on this forum, I think it’s unlikely. And in any event, like rdenny, I don’t read OP-2’s statement as an admission of guilt (though I concede that BrianShaw’s interpretation is also possible). What’s far more relevant is what OP-2 said to the ranger, which we don’t know. If indeed OP-2 was shooting for “profit and sale,” there may have been an ostensible violation of §4316—assuming the law is valid, which it almost certainly is not. The main implication of a law’s validity (or lack thereof) is the cost of securing acquittal ...

BrianShaw

2-Dec-2011, 09:15

OP-2 deleted his/her post, or perhaps disappeared entirely.

(snip)

The trick at Capistrano is to tell them the camera is Catholic...

Interesting edits to the thread. Thread makes absolutely no sense now (at least anything written in 2011).

I'm out of here... going to get my cameras baptized. Thanks for the idea, Bill. Holy water is rust-resistant and non-staining, isn't it? If not, the Chrism should help. Ha ha!

p.s. I'm going to plant religous images on my "throwaway SD card" and claim separation of Church and state as a defense!

cyrus

2-Dec-2011, 09:22

This simply isn’t true—at least legally. If a peace officer has probable cause to believe that the person was engaged in photography “profit and sale,” the officer can issue a citation. Similarly, if there is probable cause that something such as a memory card contains evidence of a crime, the officer can seize that item without a warrant.

You've basically just restated what I wrote, merely substituting "probable cause" for suspicion, which in practice makes not a whit of difference.

rdenney

2-Dec-2011, 10:52

You've basically just restated what I wrote, merely substituting "probable cause" for suspicion, which in practice makes not a whit of difference.

I thought probable cause had a specific definition and could be challenged, making it possible to disqualify evidence as well as serve as the basis for disciplinary action or, in egregious cases, an action by the accused.

Again, if the law is based either on "profit and sale" or "disruption", then what probability is there that the pictures on the memory card could provide evidence of that? I suspect that its confiscation was intended as on-the-spot punishment rather than evidence gathering.

Rick "thinking that question needs to be asked in a courtroom" Denney

tgtaylor

2-Dec-2011, 11:17

While I am not an attorney, probable cause means that the police must show that they had legitimate reason to believe that an offense was committed and that the defendant was the one that committed the offence and that the evidence seized was not seized as a result of mere suspicion. If the police are unable to show that they had probable cause but that the item/s seized do unequivocabily indicate the defendent's guilt, then that evidence seized must be thrown out and not admitted into evidence. As far as I am aware that is essentially the way the US Supreme Court has ruled on such seizures. At least that's the way it is on all the Perry Mason episodes I watched!

Thomas

Brian Ellis

2-Dec-2011, 11:36

I thought probable cause had a specific definition and could be challenged, making it possible to disqualify evidence as well as serve as the basis for disciplinary action or, in egregious cases, an action by the accused.

Again, if the law is based either on "profit and sale" or "disruption", then what probability is there that the pictures on the memory card could provide evidence of that? I suspect that its confiscation was intended as on-the-spot punishment rather than evidence gathering.

Rick "thinking that question needs to be asked in a courtroom" Denney

Before proving that a photograph was made for commercial purposes or whatever the offense is supposed to be, it has to be proven that photographs were made for some purpose. Once that's proven then the commercial part would be proven. Two steps - photographs were made and they were made for commercial purposes. The card is itself is probably the best and simplest way to prove that photographs were made. Hence the seizure.

In general, evidence can be seized on the spot if it could be easily disposed or or hidden by the person in question. Given the ease of erasing images, a seizure of the card would seem proper.

Obviously a term like "probable cause" isn't susceptible of a precise definition.There must be literally millions of cases dealing with the issue of whether the police had "probable cause" for something. I'm not a criminal attorney and I remember almost nothing about the standards applied. But I do remember - I think - that it means something more than just a suspicion on the part of the policeman.

rdenney

2-Dec-2011, 12:21

Before proving that a photograph was made for commercial purposes or whatever the offense is supposed to be, it has to be proven that photographs were made for some purpose.

I had not thought of that.

Rick "too obvious" Denney

cyrus

2-Dec-2011, 14:28

I thought probable cause had a specific definition and could be challenged, making it possible to disqualify evidence as well as serve as the basis for disciplinary action or, in egregious cases, an action by the accused.

Again, if the law is based either on "profit and sale" or "disruption", then what probability is there that the pictures on the memory card could provide evidence of that? I suspect that its confiscation was intended as on-the-spot punishment rather than evidence gathering.

Rick "thinking that question needs to be asked in a courtroom" Denney

Yes but I don't think there's any reason to get into what constitutes probable cause ("a reasonable amount of suspicion" by one definition) THat's clearly not at issue in the scenario presented. The point is, the guy was taking photos, and he said something that can be quite reasonably interpretted to mean that he was doing so on a commercial basis, as a paid photographer. Thus the cop had sufficient grounds to issue a citationm and confiscate the evidence. And from there, it would be up to the judge to decide the issue.

The card was no seized as any sort of "punishment" - it is evidence. The card is confiscated because it shows that there were in fact photos being taken. That's a necessary precursor to then also proving that the photos were "commercial" etc.

Jeff Conrad

2-Dec-2011, 16:03

For what it’s worth, OP-2 has assured me privately that the photography was not for “profit and sale,” and that this was clearly conveyed to the ranger by everyone in the group—so there was definitely no admission of guilt. Was this actually what happened? I have no way of knowing, but without the ability to read everyone’s mind, I'm inclined to take the photographer at his word. To the best of my knowledge, the “People of California” cannot read the photographer’s mind, either, and that’s what’s wrong with this and every other similar law. I don’t suggest that there aren’t circumstances that could provide probable cause for arrest, but they definitely don’t follow from a “professional-looking” camera.

A brief description of the interaction made it clear that the ranger was horribly misinformed about the law, and I would not give her even the slightest benefit of the doubt. I’ve heard this same horseshit so many times that I’m really, really, sick of it. And yet nothing ever seems to come of it. The beatings will continue until morale improves.

Jeff Conrad

2-Dec-2011, 16:28

You've basically just restated what I wrote, merely substituting "probable cause" for suspicion, which in practice makes not a whit of difference.
There’s actually quite a bit of difference—at least legally. You may wish to review Terry v. Ohio. Practically? If there’s a big difference, think for a moment about what that really means.

A peace officer can arrest a person if there is probable cause that the person has committed a public offense. For infractions and most misdemeanors, the offense must have been committed in the officer’s presence; for felonies, this isn’t necessary. The requirement for probable cause comes from the Fourth Amendment, incidentally, applying the same standard to warrantless arrests as to the issuance of warrants.

What is “probable cause”? It’s a much lower standard than proof beyond a reasonable doubt, but I don’t think anyone has ever been able to define it. A reasonable guide might be akin to preponderance of the evidence, i.e., more likely than not, but not all courts have required even this level of proof.

A peace officer can briefly detain a suspect if specific and articulable facts would indicate to a reasonable person that the suspect is involved in a crime. “Reasonable suspicion” is a lower standard than probable cause, but it still requires more than a mere inchoate hunch. The classic example is from Terry, in which an experienced (30 years) detective observed three people who looked like they were casing a store for a stickup—compare this to almost anything conceivable that might have happened at Malibu State Beach. Could there have been reasonable suspicion in this case? Perhaps, but I’d say it would require a lot more than a fancy camera.

To further complicate matters, the California Penal Code uses “reasonable cause” to mean probable cause, which of course is different from reasonable suspicion ...

As with warrantless arrests, warrantless searches or confiscation of property require probable cause, again dictated by the Fourth Amendment. If there was probable cause to arrest, there may have been probable cause to confiscate the memory card as evidence. Absent probable cause to arrest, there cannot have been probable cause to confiscate the memory card. And unless something really significant has been left out, if there was “probable cause,” the Fourth Amendment is without effect.

BrianShaw

2-Dec-2011, 16:58

For what it’s worth, OP-2 has assured me privately that ...

So, Jeff, have any insights on why Merry22 cut and ran from this discussion, and why his/her posts were deleted? Not that it matters much, but nquiring minds...

Jeff Conrad

2-Dec-2011, 17:38

So, Jeff, have any insights on why Merry22 cut and ran from this discussion, and why his/her posts were deleted? Not that it matters much, but nquiring minds...

It seems a bit unusual to me as well, and it’s something I can’t answer. But it well could have been just to avoid getting beaten up—in light of some of the responses, I’m not sure this was unreasonable. It could also be recognition of the usual advice that if you have a pending case, avoid discussing it except with an attorney—especially after the comment that the post was an admission of guilt.

I think the prosecution have an unwinnable case that will probably be dropped, but it’s never over until it’s over, and there’s no sense giving them any possible assistance.

Jeff Conrad

2-Dec-2011, 17:45

Before proving that a photograph was made for commercial purposes or whatever the offense is supposed to be, it has to be proven that photographs were made for some purpose. Once that's proven then the commercial part would be proven. Two steps - photographs were made and they were made for commercial purposes. The card is itself is probably the best and simplest way to prove that photographs were made. Hence the seizure.

In general, evidence can be seized on the spot if it could be easily disposed or or hidden by the person in question. Given the ease of erasing images, a seizure of the card would seem proper.

No question that evidence can be seized on the spot, but I‘m mighty skeptical that the memory card would constitute “evidence” in this case, without at least some suggestion that the photos were for “profit and sale.” I don’t think I’ve ever heard of a comparable seizure where the images didn’t themselves contain evidence of a crime.

I’m certainly nothing approaching an expert on search and seizure, but the suggested two-pronged legal analysis seems mighty fancy for something so simple. Conceivably, the photographer could deny being at the beach that day, but this would require successfully suborning perjury from at least three other people—and no one in his right mind would go along with such a request. The existence of images on the memory card would only demonstrate that images were taken on that day, not that the cited photographer actually took them, and taking would be far easier to plausibly deny than being at the beach that day. And as regards proving intent for “profit and sale,” the ranger didn’t observe the photographs being taken, so unless the memory card would prove something more than that images were made, it wouldn’t be much in the way of evidence. Again, absent something really significant that we don’t know, if there was “probable cause” that the memory card contained evidence of a crime, the Fourth Amendment is without meaning.

Of course, absent a court opinion, it’s all just speculation. And unless the photographer seeks suppression of “evidence” (implausible in this instance) or later files a §1983 action (probably not worth the time, money, and hassle), we aren’t likely to get any guidance.

I might add here that it never ceases to amaze me how many people here (and on other forums) are so ready to side against other photograhers. Were we talking a fashion shoot with a crew of five ordering people out of the way, and banks of diffusers and reflectors, I’d have a mighty different take on this. Quite honestly, I couldn’t care less whether the photography was for “profit and sale.” The intent of the law was to regulate large-scale, potentially disruptive or damaging activities, primarily those involved in making commercial motion pictures—which is perfectly reasonable. But the drafting fell to someone insufficiently skilled in such activity, and has been enforced by a few petty individuals who severely misperceive their roles in life. This is especially galling at a time when the DPR are desperately trying to avoid numerous park closures, and simply cannot afford to indulge this sort of nonsense.

BrianShaw

2-Dec-2011, 17:54

It seems a bit unusual to me as well, and it’s something I can’t answer. But it well could have been just to avoid getting beaten up—in light of some of the responses, I’m not sure this was unreasonable. It could also be recognition of the usual advice that if you have a pending case, avoid discussing it except with an attorney—especially after the comment that the post was an admission of guilt.

I think the prosecution have an unwinnable case that will probably be dropped, but it’s never over until it’s over, and there’s no sense giving them any possible assistance.

Interestingly, I think if Merry22 (AKA OP-2) had simply clarified that he isn't a professional and wasn't working for pay then everyone would have rallied behind him without the assumptions, speculations, and discussion that ensued. That fact was omitted from his report of the situation and was a total unknown. If I heard that clarification information from him like you did, I would certainly believe him too. I can't imagine this going anywhere... except a lot of heartache for Merry22. Best of luck to him... wherever he may be.

Jeff Conrad

2-Dec-2011, 17:59

Interestingly, I think if Merry22 (AKA OP-2) had simply clarified that he isn't a professional and wasn't working for pay then everyone would have rallied behind him without the assumptions, speculations, and discussion that ensued.

Brian, you and I don’t disagree. But it’s Merry22’s call—each to his own.

Ivan J. Eberle

2-Dec-2011, 22:22

tgtaylor

2-Dec-2011, 22:36

Somewhere I heard that in California 3 infactions = 1 misdomeanor.

cyrus

2-Dec-2011, 23:00

In CA, when it's an activity that's legal with a permit, it's most likely merely an infraction not to have said permit. An infraction-- equivalent to a parking ticket. Maybe an expensive one, but not a misdemeanor, not considered a criminal offense. Courts only need the direct observation of the ranger, don't need any physical evidence for an infraction of a rule. The confiscation of the flash card was really stepping over the line.

We're also giving this far, far more time here than it will probably receive in the CA court system.

While it may be true that an infraction is minor, nevertheless it is the duty of the police to prove it beyond a reasonable doubt and so evidence is necessary. Now, this evidence can indeed be the officer's statement alone but he can choose to back it up with the seized card. It may be a dick move, sure.

tgtaylor

2-Dec-2011, 23:12

Everyone has flash cards and everyone wears shoes.

http://www.flickr.com//photos/gallery_alternative/show/

Jeff Conrad

2-Dec-2011, 23:31

In CA, when it's an activity that's legal with a permit, it's most likely merely an infraction not to have said permit.

A violation of State Park regulations is, by default, a misdemeanor, but can be reduced to an infraction by the DA. As an infraction, violation of §4316 results in a $400 fine with all the adders; as a misdemeanor, the fine with adders is $2000, with the possibility of 90 days in jail, though jail time is probably unlikely for a first offense. California law has “public offenses” rather than crimes, and infractions, misdemeanors, and felonies are all public offenses. An infraction differs from the others in that it cannot result in incarceration.

Courts only need the direct observation of the ranger, don't need any physical evidence for an infraction of a rule.
The standard of proof is the same in either case—beyond a reasonable doubt. A greater issue is probably that prosecutors, especially in LA County, simply don’t have the resources to aggressively contest infractions—the LA County court system is swamped with felonies. Any trial is by the court, often with the arresting officer as prosecutor and witness. I doubt the ranger in question would make an effective advocate, and with a bit of preparation by the defendant, could probably be played for the utter fool that she is ... “Well, he had a fancy camera ...” Sorry if that’s a bit harsh.

The confiscation of the flash card was really stepping over the line.
On this we agree, although the operative issue is whether the card contained evidence of a crime. I seriously doubt a good case can be made that it did.

We're also giving this far, far more time here than it will probably receive in the CA court system.
I suspect that it won’t be given any time, because the DA will see a sure loser and drop the charge.

Jeff Conrad

2-Dec-2011, 23:45

but he can choose to back it up with the seized card. It may be a dick move, sure.
Again, the ranger lawfully seized the card if she had probable cause that it contained evidence of a crime; otherwise, the seizure was unlawful. In this case, I don’t think there was anything close to probable cause, so both the citation and seizure were likely unlawful. The same was probably true in the case of “Boots” McGhee. And though it didn’t get much press, the same ranger who detained “Boots” hassled a person taking pictures of his family the same day—all because the ranger thought the photographer had a fancy camera. I simply cannot give that ranger the benefit of the doubt.

Please don’t misconstrue some of my rather harsh comments in this thread—I think the vast majority of park rangers and cops in general do an admirable job. But unfortunately, there are a few bad apples who need to get on with their life’s work, which is most assuredly not in law enforcement.

BrianShaw

3-Dec-2011, 06:22

I suspect that it won’t be given any time, because the DA will see a sure loser and drop the charge.

Question - is there really a DA involved in reviewing charges on a Citation to Appear. I thought they were like a speeding ticket where one shows up to "explain it to the Judge". Unlike a speeding ticket I thought these Citation to Appears don't allow just paying the fine and being done with it. Or is it at that point that you suggest a DA gets involved? No matter... I suspect it will all be dropped, but if apearance is a requirement then Merry22 ends up making a heretofore unplanned visit to the Malibu Court House to clarify the facts and reclaim his CF card. What a pain.

cyrus

3-Dec-2011, 13:30

Again, the ranger lawfully seized the card if she had probable cause that it contained evidence of a crime; otherwise, the seizure was unlawful. In this case, I don’t think there was anything close to probable cause, so both the citation and seizure were likely unlawful. The same was probably true in the case of “Boots” McGhee. And though it didn’t get much press, the same ranger who detained “Boots” hassled a person taking pictures of his family the same day—all because the ranger thought the photographer had a fancy camera. I simply cannot give that ranger the benefit of the doubt.

Please don’t misconstrue some of my rather harsh comments in this thread—I think the vast majority of park rangers and cops in general do an admirable job. But unfortunately, there are a few bad apples who need to get on with their life’s work, which is most assuredly not in law enforcement.

Yes but the question of whether there was PC or not is itself something to be decided by the judge AFTER the seizure/citation happens.

John Koehrer

3-Dec-2011, 14:28

Who says they can't take film, cameras, cars, shoes or whatever else?

Posts # 131 and 136.

In seizing cars etc there are specific laws regarding that situation, most involving drug related crimes. DUI/Driving recklessly/public endangerment. Carrying an unlicensed firearm(Canon w/large lens?).

Some arguments are becoming long winded and silly

John Koehrer

3-Dec-2011, 14:31

Perhaps they can't, or shouldn't, John... but it is reported that they did.

Is it also reported that in the end, any charges were dropped and the "evidence" returned to the criminal?
Reported=rumored?

Just a question, I certainly don't know.

BrianShaw

3-Dec-2011, 15:39

Is it also reported that in the end, any charges were dropped and the "evidence" returned to the criminal?
Reported=rumored?

Just a question, I certainly don't know.

John, that comment I made was ONLY in response to YOUR comment (post #106). Nothing has been reported, rumored, or speculated about the conclusion... especially by me. I'm waiting in hopes that Merry22 will re-appear one day and tell us the "rest of the story".

Jeff Conrad

3-Dec-2011, 16:43

Question - is there really a DA involved in reviewing charges on a Citation to Appear. I thought they were like a speeding ticket where one shows up to "explain it to the Judge". Unlike a speeding ticket I thought these Citation to Appears don't allow just paying the fine and being done with it. Or is it at that point that you suggest a DA gets involved?

I’m sure a DA doesn’t review routine traffic citations; in a case like this, I’m not sure there is a review unless the DA’s office is contacted by the accused or an attorney.

No matter... I suspect it will all be dropped, but if apearance is a requirement then Merry22 ends up making a heretofore unplanned visit to the Malibu Court House to clarify the facts and reclaim his CF card. What a pain.

In California, a person charged with an infraction, sometimes even one such as this with a mandatory appearance, can usually request “trial by declaration,” in which the accused submits a written version of his side of the story, and the citing officer submits hers. The judge then decides, based on the merits of the presentations. Sometimes the citing officer fails to respond, resulting in an automatic dismissal. If the judge’s decision isn’t to the accused’s liking, he can still request a trial in person. I’ve helped a couple of people prepare responses, and they both got off. To be fair, the citations were as flaky as this one.

I think trial by declaration is an option for a citation for an offense such as this one; if so, it could, of course, obviate the need for an appearance—at least initially. If that didn’t work, it might be cheaper to retain an attorney, who probably could get the charge dropped with a phone call, than to fly across the country.

Yeah, it’s a real pain ... I can’t remember whether we discussed it here, but a few years ago, another Florida photographer (troublemakers, aren’t they?) was cited for photographing a nude model in a National Park in Utah without a permit. Faced with $2500 for airfare alone, he elected to pay a $150 fine for a totally bogus charge. Though I’m a lot closer to Malibu than is Merry22, I’d be mighty upset if I had to make a trip there just to clear up nonsense like this. Of course, I might have told the ranger to go stick it where the Sunny 16 rule is inapplicable, and be dead or facing 5−10, so the memory card could be a minor concern ;)

Jeff Conrad

3-Dec-2011, 17:07

Yes but the question of whether there was PC or not is itself something to be decided by the judge AFTER the seizure/citation happens.

So are you suggesting that it’s fine for a ranger to issue a citation and seize property without probable cause and hope she gets away with it? I readily concede that this is a common occurrence; however, it seems one thing to acknowledge it, but quite another to consider it acceptable. If you allow this, any cop can seize anything from anyone at any time, and unless the totality of the actions are pretty egregious and the victim has the time, money, and patience to pursue an action, nothing will happen to the cop. It could similarly be observed that most arsonists get away it—does that make it OK?

The question of whether a seizure was lawful usually isn’t addressed unless

The accused request suppression of the seized evidence, or
Prevails at trial and later files an action under 42 USC §1983.

As I’ve said, I don’t think either is likely in this case.

It’s possible that there is some reasonably apposite jurisprudence for a seizure like this, and if so, it might suggest an answer to question. Absent that, or citation of a jury instruction suggesting that an offense such as this comprises two separate elements, I think calling the memory card here “evidence” is a stretch.

Joel Brown

3-Dec-2011, 19:15

He was out there with his Canon 30D APS-C dslr, and thats what caught the rangers attention as it 'looked like pro gear' Its a consumer dslr!You bought them at Circut City and Best Buy!Sheesh!Every mom pop aunt and uncle is running around with a consumer dslr these days.Jimminy Christmas!So I wonder if he'd been out there with his Deardorf if he would have been hassled since the Deardorf isn't 'pro looking' like them thar consumer dslr's

I have been questioned by park rangers numerous times. Shooting with my 8x10 Deardorff at the beach usually draws a crowd, including the rangers. One time at Crystal Cove state park I was with a group of plein air painters, every one of them sells their paintings at the gift shop there. When I set up my 8x10, the ranger came up to me and said if I photographed the old cottages he would take my camera and film.

BrianShaw

3-Dec-2011, 19:24

Though I’m a lot closer to Malibu than is Merry22, I’d be mighty upset if I had to make a trip there just to clear up nonsense like this. Of course, I might have told the ranger to go stick it where the Sunny 16 rule is inapplicable...

I'm even closer than you are... and I'd be really, really, really upset. I KNOW that I would have said that to the Ranger. What's the worse she could do, add "being rude" to the alleged offence?

Jeff Conrad

3-Dec-2011, 20:08

What's the worse she could do, add "being rude" to the alleged offence?
She could cite you for “contempt of cop.” In California, it usually is formally expressed as a violation of Penal Code §148(a)(1), resisting, obstructing, or delaying a peace officer. But sometimes it may also take the form of assaulting a peace officer and other very nasty things.

As much as it may surprise, responding to any inquiry with “F—k off!” while extending the middle finger is protected speech—see City of Houston v. Hill (1987) and Duran v. City of Douglas (9th Cir 1990). Now I wouldn’t recommend trying this at home, because dead photographers typically make very poor witnesses ... But my point is that with anything halfway reasonable, you’re on pretty solid ground—the freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state. At least in theory ...

Unfortunately, you’re rolling the dice whenever you stand up to People with Guns. But sometimes it works if you’re well versed in the applicable law and can convey that—more often than not, the cop will not be, and will probably realize it. Of course, some times it doesn’t work, and what may persuade a judge may fail to impress a Glock. So sanity must ultimately prevail.

Most folks caught in these situations aren’t well versed in some of the subtleties, and quite honestly, why should they need to be? Should experience in the practice of criminal law be a requirement to photograph on a state beach?

We gotta stop this nonsense ... somehow ...

Brian Ellis

3-Dec-2011, 20:21

No question that evidence can be seized on the spot, but I‘m mighty skeptical that the memory card would constitute “evidence” in this case, without at least some suggestion that the photos were for “profit and sale.” I don’t think I’ve ever heard of a comparable seizure where the images didn’t themselves contain evidence of a crime.

I’m certainly nothing approaching an expert on search and seizure, but the suggested two-pronged legal analysis seems mighty fancy for something so simple. Conceivably, the photographer could deny being at the beach that day, but this would require successfully suborning perjury from at least three other people—and no one in his right mind would go along with such a request. . . .

You mention the photographer denying he was at the beach that day. You seem to be forgetting that the photographer is the defendant and the defendant can't be compelled to testify in a criminal case. So the defendant wouldn't have to deny anything or ask others to commit perjury, he would just leave it up to the prosecution to prove by some means other than his own testimony that photographs were made and they were made for a commercial purpose.

If the prosecution doesn't have the card, how would you propose to prove that photographs were made? I suppose the police officer might be put on the stand to testify that what he observed certainly looked like the photographer was making photographs. Or possibly some of the subjects could be called to testify that they understood they were being photographed. But much better and easier just to produce the card from the photographer's camera. Any testimony of the police officer or the subjects could be subject to cross examination, the card can't be.

Maybe that seems too fancy for you, it doesn't to me.

Jeff Conrad

3-Dec-2011, 20:30

When I set up my 8x10, the ranger came up to me and said if I photographed the old cottages he would take my camera and film.
This is simply outrageous—as was the similar threat to David Karp. The only correct term for this ranger is “violent felon.” Now I recognize that such a direct description may not play with everyone in Duckburg, but I prefer to tell it like it is ...

Crystal Cove apparently has more than one ranger who would be more suited to cleaning toilets than “enforcing” the law—see, for example, http://www.birdphotographers.net/forums/showthread.php/7149-I-was-told-to-leave-Crystal-Cove-State-Park-by-a-ranger

Like Drew Wiley, nearly all of my interactions with State Park rangers have been positive. But as with Drew, they’ve primarily been in northern California. And perhaps I’ve just been lucky ...

The only way to stop this is to change a stupid law that is utterly unjustifiable and doesn’t even reflect its intent. Until that’s done, the beatings will continue, especially if we serve as apologists for those responsible for the beatings ...

Bill Burk

3-Dec-2011, 21:09

We gotta stop this nonsense ... somehow ...

We gotta stop this or I'll be next...

http://beefalobill.com/imgs/_MG_7028crop.JPG

So what is the most effective strategy?

I think it shouldn't be unlawful to take pictures... define as needed, but make it clear that regular people doing ordinary things should not be considered unlawful unless they do something really bad.

Waiving the permit seems trivial. But a big issue might be the insurance requirement. Is there any way the parks could sell insurance as a line item fee collected at the gate?

Jeff Conrad

3-Dec-2011, 21:55

So the defendant wouldn't have to deny anything or ask others to commit perjury,
Of course. But if the ranger (who'd probably be the prosecutor in this case) were to testify that the photgrapher was on Malibu State Beach that day, and didn’t unimaginably flub it in cross examination, that testimony would be unrebutted absent an alibi, which would require perjury.

he would just leave it up to the prosecution to prove by some means other than his own testimony that photographs were made
Again, unrebutted, the ranger’s testimony would probably more than suffice.

and they were made for a commercial purpose.
Ay, there’s the rub. And here the memory card is probably of no help.

If the prosecution doesn't have the card, how would you propose to prove that photographs were made? I suppose the police officer might be put on the stand to testify that what he observed certainly looked like the photographer was making photographs.
But this part of the ranger’s claim would probably not be questioned unless the photographer denied being at the beach or taking photographs, which would entail perjury that would likely go nowhere anyway. And why would the photographer deny this, anyway? Taking pictures at the beach? Big deal ... The photographs look ... gasp ... professional. My goodness gracious ... but perhaps not every amateur photographer is as inept as the ranger at taking such pictures. And the memory card still doesn’t demonstrate that the cited photographer took the pictures.

But much better and easier just to produce the card from the photographer's camera. Any testimony of the police officer or the subjects could be subject to cross examination, the card can't be.
But what’s the point of proving beyond a reasonable doubt that which the photographer would almost certainly not contest?

The point I questioned was the contention that this simple offense comprised two distinct elements. A glance at the California Criminal Jury Instructions has done nothing to convince me that such a breakdown would be made. I am more than ready to stand corrected in the face of reasonably relevant jurisprudence supporting such a seizure or a jury instruction making such a breakdown. I remain unpersuaded of any of this as a justification for seizure of the card.

I suppose I could add that, according to what I’ve been told, the ranger claimed that the images were not the photographer’s property because they were taken in a State Park. Gimme a break ... Does this serve to enhance her position as an evidentiary whiz? This ranger is clearly clueless about the law, and probably needs to be separated from a badge and firearm as quickly as possible, if not sooner, so that she can get on with her life’s work. “Would you like that super sized?”

Clearly, I am cutting this ranger less and less slack by the minute. I’ll concede that I’m biased by the experiences of “Boots” and others at Seacliff, David at Malibu Creek, and several at Crystal Cove. Hearing the same horseshit enough times compels the conclusion that it’s, well, horseshit ... and I am more than weary of it. Am I being excessively judgmental? Perhaps ... but I utterly fail to see the purpose of this nonsense.

The DPR obviously need to do a far better job training and controlling some of these people. And perhaps weeding out the more combustible of the deadwood. But the only way to really address this is to get the law changed. It’s probably doable if nontrivial. But the time we’d save discussing nonsense like this might alone justify the effort.

cyrus

3-Dec-2011, 22:40

So are you suggesting that it’s fine for a ranger to issue a citation and seize property without probable cause and hope she gets away with it? I readily concede that this is a common occurrence; however, it seems one thing to acknowledge it, but quite another to consider it acceptable. If you allow this, any cop can seize anything from anyone at any time, and unless the totality of the actions are pretty egregious and the victim has the time, money, and patience to pursue an action, nothing will happen to the cop. It could similarly be observed that most arsonists get away it—does that make it OK?

I didn't say it was ok to issue a citation "without probable cause" - I said whether there was sufficient or insufficient PC is to be determined by a judge AFTER the fact, when the defendant goes to court as required by the citation.
See, when you're issued a citation, you are given two choices. You can either decide to contest the matter, or just pay the fine. If you decide to contest, you get a court date. THEN, when you come before the judge you can say, "Judge, the officer didn't have PC and so that evidence should be tossed and the citation dismissed". If the judge agrees, then the evidence can be tossed and potentially the case can be dismissed (or not.) This is pretty normal and standard procedure.

So yes, basically, the cop can issue you a citation without PC, if he really had nothing better to do and wants to be a dick, and make you go to court and dispute it. Similarly, a cop can issue you a parking ticket or speeding ticket when you weren't speeding. There is no Superman who descends from the skies instantaneously and renders judgment right there and then on the legality of the cops action. Other than going to court, there is no other system in place to prevent that, sorry. I'm not justifying it, just saying what's the case. ideally of course the cop should NOT do so, but he CAN do so. Maybe he'll get in trouble if he makes a habit of it. But cops have quotas. Heck an NYPD cop just admitted that they regularly planted drugs on innocent people (http://www.huffingtonpost.com/2011/10/13/ex-nypd-cop-we-planted-ev_n_1009754.html) to make their quota of drug busts.

AND THEN, if you can meet the requirements of section 1983 (deprivation of civil rights under color of authority) you can sue the police for hassling you without PC, but there are all sorts of limitations to that and you probably will lose (look up "qualified immunity", for one thing.)

cyrus

3-Dec-2011, 22:57

Posts # 131 and 136.

In seizing cars etc there are specific laws regarding that situation, most involving drug related crimes. DUI/Driving recklessly/public endangerment. Carrying an unlicensed firearm(Canon w/large lens?).

Some arguments are becoming long winded and silly

There may be specific laws that allow seizure of cars for specific crimes, but that doesn't mean that seizure of cars under other circumstances are not allowed. Those laws aren't exclusive.

As a general matter anything that is considered to be potential evidence of a crime can be seized - anything: Houses, cars, caps, cameras, flash cards, baseballs, underwear, whatever (more recently, under "material witness" laws, even people can be "seized" or detained - indefinitely (http://en.wikipedia.org/wiki/Material_witness). Ironically, this means you're better off being a suspect rather than a witness!) The "relevancy" of the seized evidence and the legality of its seizure can only be challenged by you (or your attorney) once the Police/DA try to introduce it into evidence against you, at your trial. Until then, there's really nothing preventing the police from seizing whatever they think is necessary.

Of course the cop has to have sufficient legal justification for seizing the evidence - but whether there was sufficient justification or not is only determined by a judge AFTER the item is seized (the only real exception to this is when a warrant is required to search your house. But if you're out in public, there's no warrant required.) And as I said, the cops can even keep and sell off the seized items (http://www.forbes.com/2011/06/08/property-civil-forfeiture.html), even if you're never even charged, let alone convicted, of a crime.The cops keep about 90% of the revenue generated for themselves - nicer uniforms, bigger office parties, etc. (thus freeing up the budget for raises.)

I know this sounds unbelievable, but follow the links.

FYI in fact even if something was seized improperly and without probable cause, doesn't mean that the judge will automatically toss it out. There are alllllllllllllllllllllllllll sorts of exceptions (http://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree) to the rule that cops need probable cause to do various things including seizing evidence. Thanks to the "War on Drugs" the exceptions have overtaken the general rule that improperly-seized evidence can't be used against a defendant.

Jeff Conrad

3-Dec-2011, 23:19

We gotta stop this or I'll be next...

I think it shouldn't be unlawful to take pictures... define as needed, but make it clear that regular people doing ordinary things should not be considered unlawful unless they do something really bad.
And it was never the intent of the DPR to require permits for the photography in which most of us engage. The DPR really aren’t out to get us—the drafter of the legislation just didn’t do a very good job of it. Never attribute to malice what’s adequately explained by incompetence ... In defense of the drafter, I should add that writing a regulation that achieves the justifiable regulatory effect while avoiding overbreadth is no mean feat.

I will suggest that the DPR may have been a bit remiss in reigning in some of the true zealots.

Waiving the permit seems trivial. But a big issue might be the insurance requirement. Is there any way the parks could sell insurance as a line item fee collected at the gate?

And indeed some park units routinely do this. As several of us have said, the majority of folks in the DPR seem to focus on protecting park resources and making the visitor experience as enjoyable as possible. Really.

But there is no way to mandate waiving permit requirements. Insurance? I can’t see the DPR getting into that business. Recall that the original intent seemed to be regulation of commercial motion picture production, a large-scale activity for which damage to park resources is a real possibility. But it’s essentially a non-issue for most still photographers—what greater risk is posed by a photographer with an 8x10 and a tripod than by any other park visitor? Again, the only reason insurance is ostensibly required is protection from activities that actually could damage park resources.

So what is the most effective strategy?

There are two theoretically straightforward remedies specifically provided by the California Administrative Procedure Act, Government Code §11340 et seq.:

Petition the DPR to amend §4316 to reflect the orginal intent (GC §11340.6).
Seek judicial determination of the validity of §4316 (GC §11350). In this case, we would claim that it is invalid for several reasons, including considerable disparity with the stated intent and failure to provide any justification for its adoption in regard to most still photography.

Submitting a petition is simple—and the cost is right. The agency must respond within 30 days, but of course they are not required to take any action. I’ve had such a petition ready for a dozen years but have not submitted it because:

Changing a regulation is more onerous than it may seem. The new regulation must be drafted, the proposed change announced to the public, public comments must be addressed, and the final version submitted to the California Office of Administrative Law for review before it can be adopted.
The DPR, perhaps even more than the rest of California, are in dire financial straits, so the last thing on their list is anything that requires time, money, or people. Quite honestly, I don’t blame them.
The DPR aren’t likely to take action solely on the basis of one person’s comment (Jeff Conrad??? WhoHe?), especially because
They haven’t received any complaints. Or so they have told me.

Seeking judicial declaration of validity (or in this case, lack thereof) is straightforward except for the small matter of legal costs ... I am an outsider to the game of challenging California regulations, but a glance at jurisprudence suggests that it is a remedy most available to monied players. In this case, I think it would be difficult for the DPR to show that they had justified requiring permits for all still photography for “profit and sale,” but the ante to even play the game would be significant. Suffice it to say that it’s not covered in my budget.

Perhaps a petition would have a better chance if reviewed and revised by someone familiar with how the game is played in Sacramento. But until California finances are addressed (and don’t hold yer breath), I doubt the DPR will do anything without a gun to their heads.

Perhaps someone here knows someone who’s a player in challenging California regulations, and who would be willing to advise on the odds of prevailing, and if so, provide rough guidance for a successful brief.

The easiest initial step is simply to complain when there is reason for complaint—after the first complaint, the DPR can never say “never” again. It’s my impression that Merry22 has complained in no uncertain terms. It’s only a start, but the journey of a thousand miles ...

Bill Burk

3-Dec-2011, 23:56

Changing a regulation is more onerous than it may seem. .

You haven't disguised this option as easy. That's why I was thinking of working within the law as written.

Even a volunteer organization that I help out with provides insurance to their members. The way it is effected is by filing a tour permit.

So register with the films commission, it's free. Obtain insurance (Create a framework that makes this reasonably easy. Imagine a non-profit organization of photographers created for the purpose of doing just that).

Then with insurance certificate and registration card in hand, discuss with the park that your intention is to stay within normal visitor guidelines as you do what may or may not appear to be professional photography which may or may not result in salable photographs. Now all that is left is something the law says the parks CAN do. Ask them to please waive the permit and day fees for commercial photography because you plan to observe normal visitor guidelines and require no disruption of park activity.

I assume the parks are able to say yes. And at this point I am still thinking out loud about something that may be bigger and harder to solve than this idea can handle.

But it seems to turn this into a reality, the parks just need to send out a memo to rangers that professional photographers can be treated like any other park visitor if they abide by visitor regulations and provide evidence of insurance.

Brian Ellis

4-Dec-2011, 00:11

Of course. But if the ranger (who'd probably be the prosecutor in this case) were to testify that the photgrapher was on Malibu State Beach that day, and didn’t unimaginably flub it in cross examination, that testimony would be unrebutted absent an alibi, which would require perjury.

Again, unrebutted, the ranger’s testimony would probably more than suffice.

Ay, there’s the rub. And here the memory card is probably of no help.

But this part of the ranger’s claim would probably not be questioned unless the photographer denied being at the beach or taking photographs, which would entail perjury that would likely go nowhere anyway. And why would the photographer deny this, anyway? Taking pictures at the beach? Big deal ... The photographs look ... gasp ... professional. My goodness gracious ... but perhaps not every amateur photographer is as inept as the ranger at taking such pictures. And the memory card still doesn’t demonstrate that the cited photographer took the pictures.

But what’s the point of proving beyond a reasonable doubt that which the photographer would almost certainly not contest?

The point I questioned was the contention that this simple offense comprised two distinct elements. A glance at the California Criminal Jury Instructions has done nothing to convince me that such a breakdown would be made. I am more than ready to stand corrected in the face of reasonably relevant jurisprudence supporting such a seizure or a jury instruction making such a breakdown. I remain unpersuaded of any of this as a justification for seizure of the card.

I suppose I could add that, according to what I’ve been told, the ranger claimed that the images were not the photographer’s property because they were taken in a State Park. Gimme a break ... Does this serve to enhance her position as an evidentiary whiz? This ranger is clearly clueless about the law, and probably needs to be separated from a badge and firearm as quickly as possible, if not sooner, so that she can get on with her life’s work. “Would you like that super sized?”

Clearly, I am cutting this ranger less and less slack by the minute. I’ll concede that I’m biased by the experiences of “Boots” and others at Seacliff, David at Malibu Creek, and several at Crystal Cove. Hearing the same horseshit enough times compels the conclusion that it’s, well, horseshit ... and I am more than weary of it. Am I being excessively judgmental? Perhaps ... but I utterly fail to see the purpose of this nonsense.

The DPR obviously need to do a far better job training and controlling some of these people. And perhaps weeding out the more combustible of the deadwood. But the only way to really address this is to get the law changed. It’s probably doable if nontrivial. But the time we’d save discussing nonsense like this might alone justify the effort.

I don't have a clue as to what you're talking about. The ranger serving as prosecutor? And the prosecutor also testifying as a witness? The photographer having an alibi? California Jury Instructions not talking about two elements of this particular offense (of course not, they're standard instructions of a general nature, they don't purport to be tailored to every kind of criminal case, the jury instructions peculiar to a particular case are prepared by and made at the request of the prosecutor and the defense attorney and are given in addition to the standard instructions)?

I didn't know that in California park rangers served as prosecutors in criminal trials. And I certainly didn't know that if they did they could also testify as witnesses in the cases they were prosecuting. That's not a type of proceeding with which I have any familiarity so I don't think I should say anything more.

Jeff Conrad

4-Dec-2011, 01:18

The ranger serving as prosecutor? And the prosecutor also testifying as a witness?

Much as happens with a traffic ticket ... calling the ranger a “prosecutor” is probably a bit of a stretch ... the ranger presents her side, and the photographer presents his—I honestly don’t know if the ranger cross examines. The point was more that the DA normally doesn’t dispatch a representative for infractions. My direct experience doesn’t go beyond a couple of traffic citations, so perhaps I should stop ...

The photographer having an alibi?

“I was nowhere near Malibu that day ...” Otherwise, the ranger’s statement that the photographer was on the beach on or about that day would be undisputed. Of course, the ranger would need to present more than that for the People to have a case—at the very least, she’d need to prove that the cited hotographer took the pictures. And because that’s something she didn’t observe, she’d need a witness.. who to my knowledge, doesn’t exist.

California Jury Instructions not talking about two elements of this particular offenseNot quite what I said, but of course they don’t deal with this particular offense. In the universe of offenses, this one hardly tops the list. I simply observed that the standard instructions don’t seem to make as fine a breakout as would be implied by the two-pronged analysis you suggested. I assure you that I did not read every standard instruction, so one exception could undercut my position.

the jury instructions peculiar to a particular case are prepared by and made at the request of the prosecutor and the defense attorney and are given in addition to the standard instructions)?For misdemeanors and felonies, yes. But a person charged with an infraction isn’t entitled to trial by jury, so most of this isn’t applicable.

I think we’re making this into a much bigger deal than it is—my point was and remains that the seizure of the memory card as “evidence” was marginal at best. Again, I’d quickly stand corrected upon being shown some jurisprudence upholding a similar seizure, or a jury instruction from any reasonably similar trial, realizing, of course, that a particular trial judge might boldly go where the Judicial Council of California fear to tread.

Jeff Conrad

4-Dec-2011, 01:37

when you come before the judge you can say, "Judge, the officer didn't have PC and so that evidence should be tossed and the citation dismissed". If the judge agrees, then the evidence can be tossed and potentially the case can be dismissed (or not.)
Assuming, of course, that there was any reason to have the “evidence” dismissed. The operative issue here is whether images were made for “profit and sale,” and the memory card is of no value in making this call.

So yes, basically, the cop can issue you a citation without PC, if he really had nothing better to do and wants to be a dick, and make you go to court and dispute it.
And a person like Lovelle Mixon can blow several cops away if he has nothing better to do, and the cops can charge him accordingly if so inclined. Unless, of course, he is no longer able to stand trial. Is this really how you would have it?

I thought what several of us questioned the legality of the seizure. I don’t think anyone but the most hopelessly naive disputes the ability of People with Guns to do damn near whatever they please in the field (and in most cases, get away with it). A Glock always beats four aces.

Would you propose that the Mixon Method or La Forza del Clemmons should govern?

Again, the objection was that the seizure of the memory card was most likely unlawful. We know an armed ranger can pull it off—she obviously did it.

Jeff Conrad

4-Dec-2011, 02:42

So register with the films commission,
Once you’re over the initial hurdle, the insurance really isn’t much of an issue—at least with respect to California State Parks. The California Film Commission will keep an insurance certificate on file, and will notify a park unit of the coverage. It gets messier when a photographer visits many different locations under the jurisdictions of many different agencies, each requiring an insurance certificate specifically listing them as an additional insured.

Some park units already waive the insurance requirement for single still photographers, recognizing that there’s little benefit from requiring protection from a nonexistent hazard.

The problem is that waiver, formally or informally, of either permit or insurance requirements is at the whim of each park unit. Some units will accept a verbal heads up on locations, dates, and times from a professional photographer, but others require a permit, insurance, and a fully completed DPR245 for every visit. In these cases, logistics ultimately becomes the killer.

On the other hand, I’ve discussed this with a fair number of well-known nature photographers who’ve told me they’ve never bothered with permits and never have been hassled. Of course, probably left unsaid was that they all had long-established contacts at fairly high levels in the DPR.

But it seems to turn this into a reality, the parks just need to send out a memo to rangers that professional photographers can be treated like any other park visitor if they abide by visitor regulations and provide evidence of insurance.
As I’ve said, insurance is often a minor issue.

It would seem obvious that the DPR could start by doing a better job of directing all enforcement personnel to follow the law, including avoiding detention without reasonable suspicion, and citation or confiscation of property without probable cause. Stated otherwise, do not commit felony false imprisonment or armed robbery. As we’ve discussed, probable cause is sometimes tough to define, and reasonable suspicion even more so. A reasonable approach might be something like, if a photographer who “looks professional” claims otherwise, take him at his word unless circumstances (e.g., large crew. people who look like professional models, support vehicles, large props, large banks of reflectors, diffusers, or the like) strongly suggest otherwise, and focus on more important things.

To be honest, though, I think most enforcement personnel already do this. The folks who hassled “Boots,” David, Merry22, and others are for the most part petty little people who relish the exercise of petty authority, and I’m doubtful that any directive would work to much effect. And as cyrus seems to keep suggesting, some cops just don’t follow the law anyway (I’m shocked ... shocked).

It’s possible that a directive to follow other than the ostensible letter of the current regulation could be construed as illegal, leaving a ranger free to ignore it.

I suppose another option would be to propose an interpretation of §4316 that was similar to 36 CFR 5.5(b), and ask the attorney general for an opinion, but I somehow just don’t see this happening. And even if it did and the attorney general gave an opinion supporting such an interpretation, it would be only an opinion, if an authoritative one, and a ranger might feel free to ignore it.

I had suggested that a narrowing construction of §4316 that achieved the desired effect while passing constitutional muster and satisfying APA while staying within the limits of judicial discretion would be difficult. But I can think of one that would be simple. It is far from clear that it was the intent of §4316 to cover anything other than motion picture production, so an interpretation to that effect might be reasonable. Unfortunately, the only way to give this any teeth would be to obtain a judicial opinion to that effect, leading us back to ...

We gotta get the law changed.

cyrus

4-Dec-2011, 03:30

Assuming, of course, that there was any reason to have the “evidence” dismissed. The operative issue here is whether images were made for “profit and sale,” and the memory card is of no value in making this call.

Yes, it is - because first it has to be established that photos were in fact taken before the question of whether they were made for profit etc is dealt with. As it was stated on this thread previously, the card is evidence of photos having been taken. Thus they are relevant.

And a person like Lovelle Mixon can blow several cops away if he has nothing better to do, and the cops can charge him accordingly if so inclined. Unless, of course, he is no longer able to stand trial. Is this really how you would have it?

I thought what several of us questioned the legality of the seizure. I don’t think anyone but the most hopelessly naive disputes the ability of People with Guns to do damn near whatever they please in the field (and in most cases, get away with it). A Glock always beats four aces.

Would you propose that the Mixon Method or La Forza del Clemmons should govern?

Again, the objection was that the seizure of the memory card was most likely unlawful. We know an armed ranger can pull it off—she obviously did it.

I don't know who any of these people are and don't have the inclination to check. The fact is, the card was simply not seized illegally, and whether it was or was not is up to the judge to decide after the seizure.

Jeff Conrad

4-Dec-2011, 05:11

Yes, it is - because first it has to be established that photos were in fact taken
But this would be essentially uncontested, so the the memory card would be of little practical value. Again, not all of us are convinced of that the two-element theory of such a simple offense—especially if it’s an infraction, where it’s essentially ranger’s story vs. photographer’s story. And this ranger is going to come up with this theory? I somehow just can’t see the DA spending a lot of time coaching her on this one. This ain’t exactly OJ Simpson ...

As it was stated on this thread previously, the card is evidence of photos having been taken.

One poster’s opinion—yet you seem to take it as established fact. Support the assertion, and I’ll be more accepting of it.

I simply cannot understand the seeming obsession with a detail that’s easily established as essentially incontrovertible fact while glossing over far more significant issues that will be nearly impossible to prove beyond a reasonable doubt. Wanna make this a multi-element offense? No problemo ... the People must prove that pictures were taken, that they were taken at Malibu Beach, that they were taken on the day in question, that they were taken by the photographer who was cited, and that they were were made for “profit and sale.” The People might also need to prove that the photographer knew that it was a State Beach (mistake of fact is a defense, even though mistake of law is not).

Now that this has been stated, I assume it’s undisputed that the offense comprises these elements ...

I don't know who any of these people are and don't have the inclination to check.
You could have done a Google search in less time than it took to write this ... in a sense, this speaks volumes.

The fact is, the card was simply not seized illegally, and whether it was or was not is up to the judge to decide after the seizure.
This takes the cake for begging the question ... And by this theory, no seizure of anything is illegal—and that’s simply crazy. I’ve never insisted that the seizure was illegal, but simply that the case for it seems pretty marginal. Again, support your contention. For what it’s worth, all warrantless searches and seizures are presumptively illegal, so the burden is on the ranger who made the seizure to justify it.

And let’s not overlook the ranger’s absolutely crazy assertion that the images were not the photographer’s property because the images were made in the park, and this additionally justified the seizure. Because of this alone, I’m disinclined to believe anything this ranger might claim. Now of course I wasn’t on the scene, so I don’t really know what was actually said. Had I not heard similar drivel from a few other people in the DPR and a few other places (e.g., the California Film Commission), I might have been a bit skeptical. Unfortunately, that’s not the case, so based on the totality of the circumstances, I’ve chosen to believe what’s plausible rather than what’s implausible. Doesn’t ensure that I'm right, but simply that I think I’ve maximized the odds.

Again, we’re all just speculating. As has repeatedly been said, absent extraordinary circumstances, the question of the seizure’s legality will never come before the court. That such a question is not called does not automatically bootstrap the ranger’s actions to legitimacy.

We’re getting pretty deep into crazyland here ... We’re talking about the legality of the seizure rather than whether the ranger will be held accountable for lack thereof. Quite honestly, absent unusual and unlikely circumstances in which the latter is made an issue, we’ll never have an authoritative answer to the former. Some of us at least recognize that more than one interpretation is possible; others apparently do not.

I remain astonished that so many here are so quick to stand against another photographer on what’s at worst a pointless citation for a far-from-established de minimis violation of a law that’s likely invalid anyway. Aside from this, the ranger is awesome ... if the DPR had more like her, their budget issues would soon disappear.

BrianShaw

4-Dec-2011, 11:27

As much as it may surprise, responding to any inquiry with “F—k off!” while extending the middle finger is protected speech—see City of Houston v. Hill (1987) and Duran v. City of Douglas (9th Cir 1990). Now I wouldn’t recommend trying this at home ...

Very useful information. I'm tempted to use this "right" on occasion, but I always end up heeding your recommendation/warning.

BrianShaw

4-Dec-2011, 11:56

I still have doubts (and take this for what it is worth, I am not a lawyer) that all of this legaleze will be of interest to a Judge in a citation situation. Isn't it more likely to be a Judge hearing both sides of the story and determining what he/she believes to be the truth? Aren't issues like submission of evidence, cross-examination, and evidence suppression an artifact of jury trials? Judge Milian (yes, that's primarily where I get my law experience from) recently counseled a defendent that her role as Judge was to determine what she thinks the truth is, who she thinks is lying, and what she thinks (knows, I assume) the related law is... and then she renders a judgement. Sure, that's small claims court, but it is consistent with my limited experience in traffic court.

Wouldn't it be nice if Merry22 took the administrative option mentioned earlier (by Jeff, I think) and the whole thing just got dropped (and his CF card was mailed to him in FL)? Wouldn't it be nicer if the Ranger gets counseled at some point in the process for being a (insert expression for "female dick")... and then everyone went their "Merry" way?

Bill Burk

4-Dec-2011, 13:28

I remain astonished that so many here are so quick to stand against another photographer on what’s at worst a pointless citation...

The echo of your statement rings loud in my head.

But I sense something greater "at worst," I see this as having a potential chill over this community.

Have we discussed how much experience the ranger likely has with motion picture companies, the type for which the law was intended? My brother in law tells me when he drives down the coast he sees no fewer than half a dozen production companies at work.

I'd recommend consulting the ranger for the extensive experience, though vilified here, that could provide valuable input for the rewording of the law.

rdenney

4-Dec-2011, 14:25

Very useful information. I'm tempted to use this "right" on occasion, but I always end up heeding your recommendation/warning.

Heh. Me, too. But I'm getting crustier as I get older, and less prepared to bottle it up.

Rick "who sometimes needs to be more careful, especially around similar types in the TSA" Denney

D. Bryant

4-Dec-2011, 15:27

If you are using a rig that's not a camera phone you are a pro in the eyes of the law.

It's been my experience that occasionally some Federal rangers are total pricks and that includes some in Cali. but also in other jurisdictions and in state parks other than California.

Most are good guys and gals and have a difficult job to do.

John Koehrer

4-Dec-2011, 17:21

If I have a communicable infection, go to the state beach/park/rest area, am eaten by a bear/cougar/flock of gulls and it(they) die. Am I then liable for the death of the aforementioned critters and can/will my estate be sued, found responsible and forced to pay the state for the damages I've caused??

=@P

Jeff Conrad

4-Dec-2011, 21:15

As much as it may surprise, responding to any inquiry with “F—k off!” while extending the middle finger is protected speech—see City of Houston v. Hill (1987) and Duran v. City of Douglas (9th Cir 1990).
Some of you may have surmised that following orders is not one of my hobbies. But neither is recovering from multiple skull fractures. First Amendment rights, unfortunately, are directly proportional to the number of witness, and are further predicated on your being alive to testify.

My point was that, given what’s protected by the First Amendment, a polite but firm disagreement with the ranger’s actions is well in line, though I think we all recognize that some cops don’t take kindly to any challenge to their authority, and couldn’t care less about some hill in Houston.

Be assured that I have as short a fuse for this as anyone, but there are many reasons to keep a civil tongue, not the least of which is that you lessen the chance for citation for “contempt of cop” or getting roughed up or having your equipment damaged. And you also stand a much better chance of getting your point across. If you get belligerent, bystanders will often assume you’re at fault—and you won’t look so hot on YouTube later in the evening.

Jeff Conrad

4-Dec-2011, 23:18

But I sense something greater "at worst," I see this as having a potential chill over this community.I was referring here to the evil perpetrated by the photographer ... I’m not sure this would chill me (at least not yet ...), but it should be clear that I’d be mighty upset—irate even—if something similar happened to me.

Have we discussed how much experience the ranger likely has with motion picture companies, the type for which the law was intended?
Ha ha ha ha ...

Had the ranger even a modicum of understanding, she’d probably have realized that she more important things to do with the DPR’s severely limited budget. Now perhaps I’m rushing to judgment, but for now, I’ll stand by the comment.

I'd recommend consulting the ranger for the extensive experience, though vilified here, that could provide valuable input for the rewording of the law.
It’s hard for me to tell whether this is tongue-in-cheek ...

I think it would be great to sit down with a diverse (but manageable) group and discuss some of these issues. But coming up with answers would no easy task, as numerous agencies from New York City to the US Bureau of Land Management have discovered. Despite some fairly extensive efforts, I don’t think any have really succeeded. And I’m not sure what could be done to assemble such a group with a mandate to do something with their findings.

A Crude Proposal

If I had the perfect answer, I’d have suggested it long ago. As I’ve said, the best wording I’ve seen to date is in 36 CFR 5.5(b) that covers photography in US National Parks. Borrowing from that, 14 CCR 4316 might be revised to something to the effect of

“Except where authorized by the Department, no person shall film or photograph for commercial purposes in any unit, or portion thereof, owned, operated or administered by the Department without a permit from the California Film Commission, pursuant to Government Code section 14998.8.

“For the purpose of this section, ‘commercial purposes’ shall mean filming or video recording for sale for profit, or photography using models or props for the purpose of commercial advertising. ‘Photograph’ shall include video recording with a still-photography camera.”

Many tweaks could be made to the wording—in particular, I don’t know enough about commercial filming to even be dangerous. But the result would still probably have many shortcomings. For example, how does one determine wether it’s for commercial advertising? It’s sometimes tough. But the requirement that the photography also involve models or props (assuming standard definitions for both, and probably taking “prop” to include commercial articles [such as vehicles] photographed to promote their sale or use), the call would be much less subjective than the current §4316. And despite occasional hiccups, this wording has worked pretty well in National Parks for years.

Unintended Consequences of the “Perfect” Regulation

A few shortcomings? It would exempt almost all portrait and wedding photography. In most cases, I don’t see the problem—one or two photographers, perhaps a couple of assistants with handheld reflectors, and perhaps even a stand-mounted reflector or two—especially when the photographer has no assistants. Could this be abused? Of course. I suppose someone could (and probably would do a shoot with larger stand-mounted reflector or diffuser banks; in some locations, this still wouldn’t be a problem, though in others it would. Where do you draw the line? I don’t have the answer.

In theory, the cutoff could be based on the crew size, the number of talent, and some inventory of equipment. Of course it would require definitions of “crew” and “talent,” and the more specific the list of equipment, the more loopholes for items not specifically included. For example, what about a local camera club that has seven or eight people go to a state park for an outing? Should the club (which may not even be a legal entity) need a permit, insurance certificate, and a complete DPR245? What about a group of friends who aren’t members of club? From the “talent” side, should a school group need to meet the same requirements? What if they were from out of state, and, heaven forbid, mistook a pullout on SR 1, and illegally had a photograph taken at a location not specified in DPR245? And should the permit requirement apply only if the photographer was a professional rather than a faculty member (who just happened to be the moderator for the school’s photo club, and a very skilled amateur photographer)? And how would you tell? Of course, the resource impact of the group would be the same whether they posed for a professional or amateur photographer—or probably about the same as if they simply got out of the bus.

Other creative approaches have been tried. New York City introduced the idea of “assertion of control” (e.g, when blocking a sidewalk with a tripod)—probably a good idea. But they also had initially suggested requiring a permit when members of the “crew” communicated with each other by means that included hand signals—probably a bad idea (“Communicating with another crew member? Oh no, officer—the middle finger was directed at you. Protected speech, baby!”). (Full disclosure: the Ninth Circuit case doesn’t bind New York).

I'm not sure a systematic effort to address some of these issues has ever been made. New York made a stab at it, but I think they began with something “to argue away from,” and as so often is the case with this, most of the subsequent discussion focused on arguing. Perhaps a group such as I suggested, with a specific mandate from the outset could make a better attempt. In the interim, I think what I suggested above would be a lesser evil than we currently have.

Back to Reality

As I mentioned, I have no idea what could cause a sanctioned group to undertake such a project.

Several years ago, I briefly discussed some of the problems with the current regulation with the DPR staff attorney from whom I obtained the rulemaking history. She said that

The DPR don’t necessarily change a regulation just because someone requests it. Supposedly, I was the first one to have suggested there was a problem.
Changing a regulation is a big deal, with public notice, public hearings, written comments, review by the OAL and probably others. And all this at a time when the DPR were looking at laying off some of the people who would need to do this work.

Of course, financial picture is now even worse. In short, I just don’t see a petition, however persuasive, getting anywhere unless the DPR perceive some very serious problems with the current regulation ... perhaps a few crushing §1983 judgments. I’m not holding my breath.

Conceivably, our friend in Malibu could pull the same stunt on a wealthy local who sues to have §4316 declared invalid to avoid a misdemeanor on his record—or just to send the DPR a message. Perhaps the ranger will win the lottery and feel so guilty about what she did to Merry22 (and from what I’ve been told, more than a few others) that she decides to fund an effort to invalidate §4316 with the proceeds ...

If enough photographers and photographer’s organizations got together, it might be feasible to at least explore a legal challenge to the current regulation. As I’ve said, have little practical knowledge about how this game is really played, except that’s usually done by well-funded entities rather than individuals. I haven’t found much jurisprudence that’s very helpful, but what I have seen suggests that the grounds on which I would make a challenge have reasonable legal foundation.

Based on extensive past experience, I am fully confident that this discussion will quickly fade to black, and nothing of consequence will come of it. Until the next similar incident, at which the cycle will repeat.

Perhaps someone else has a better idea. In this instance, I’d love to be proven wrong.

Jeff Conrad

5-Dec-2011, 02:37

Aren't issues like submission of evidence, cross-examination, and evidence suppression an artifact of jury trials? ...

Wouldn't it be nice if Merry22 took the administrative option mentioned earlier (by Jeff, I think) and the whole thing just got dropped (and his CF card was mailed to him in FL)?

For California residents who may be interested, the California Courts Web site has a pretty good page on infraction trials (http://www.courts.ca.gov/8450.htm), including a good summary of trial by declaration.

A person charged with an infraction is not entitled to trial by jury, but the trial by the court (a judge) is much like any other trial by the court, except that the proceedings are usually less formal, and the citing officer is usually the People’s only representative. The defendant can cross-examine the officer; I assume the officer can cross examine a defendant who testifies in his own behalf, but cannot confirm this. The defendant can argue matters of law as well as fact; I don’t know whether formal motions can be presented, but would guess that the more hifalutin a defendant tries to act, the less slack a judge is likely to cut him.

I’ve never been to such a trial in Calfornia. I had one long, long ago in Illinois; I did cross examimine the officer, and he tripped up pretty badly, causing the judge to dimiss the charge. This probably was fortunate, because he shut me up before I could say anything more that might lost the case.

Trial by declaration is good option, yet one of which many people apparently don’t take advantage. It’s especially good if the citation was issued in a jurisdiction far from the defendant’s home, and is equally good for people who may be nervous in front of a judge and a peace office.
If the officer fails to respond, the defendant is usually not guilty. If the defendant loses, he still has the option of a trial de novo before a judge—essentially two chances without appeal or extra cost.

According to the LA County bail schedule (www.lasuperiorcourt.org/bail/pdf/misd.pdf) (PDF), a violation of §4316 requires a court appearance whether charged as an infraction or a misdemeanor, so I’m not sure trial by declaration is available. But there may be a way to request it.

Let’s hope no one here needs to avail himself of either alternative in the near future.

Bill Burk

5-Dec-2011, 08:05

...couldn’t care less about some hill in Houston.

There's no such thing. Maybe an overpass...

bigguy88

5-Dec-2011, 08:27

interesting views :) http://edslrvideo.com/line.jpg :)

rdenney

5-Dec-2011, 08:32

Most are good guys and gals and have a difficult job to do.

The pricks surely don't reduce the difficulty of their jobs by being so.

Rick "who sympathizes with the non-pricks" Denney

John Kasaian

5-Dec-2011, 08:40

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.

rdenney

5-Dec-2011, 09:00

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

cyrus

5-Dec-2011, 09:14

But this would be essentially uncontested, so the the memory card would be of little practical value.

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.

Jeff Conrad

5-Dec-2011, 20:01

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?

[quote]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.
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).

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.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 again direct people to the section on California State Parks in the article I linked earlier. In particular, look at the citations (http://www.largeformatphotography.info/photo-permits/PermitRegulations.htm#T14CCR4316); 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).

"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."
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.

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.

Jeff Conrad

5-Dec-2011, 20:42

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.
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.

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.
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 ...

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 ...

Bill Burk

5-Dec-2011, 21:07

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)

---

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.

Jeff Conrad

6-Dec-2011, 00:21

Perhaps the idea was that "nobody should profit by exploiting park resources"
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.

rdenney

6-Dec-2011, 07:46

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.

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

cyrus

6-Dec-2011, 08:15

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..

It is the job and duty of the govt is to prove each element beyond a reasonable doubt. A heavy burden & a good thing. They will not just traipse into court thinking that there is a gentleman's agreement between the photographer and the ranger that the photographer will just admit to the judge that yes, he was taking photos that day. There is nothing assumed to be "uncontensted" - it is the job of the ranger to obtain and gather as much evidence as is necessary to prove the case beyond a reasonable doubt, Supreme Court or not.

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 ...

Because the temporary seizure is legal pending a final determination by the judge. The ranger, as part of issuing a cititation, has the legal authority to gather evidence, and ultimately if he did so illegally nor not is determined by a judge. I know this may cause inconvenience for the person whose card is confiscated pending a hearing, how else is the legality to be determined?

rdenney

6-Dec-2011, 08:44

It is the job and duty of the govt is to prove each element beyond a reasonable doubt.

Only if it is not stipulated. Would you actually try to force the state to prove that you took pictures when the ranger observed you pushing the button on the camera? My thinking is that would seriously annoy the judge (and the jury if there is one). And forcing them to prove it suggests you are arguing it is not true, which would open you up to perjury if you testified that way and did actually press that button.

And if you are using a flash, the ranger would have an indicator easier to see than you pushing the button. Would you insist it was a test flash? Let us know how that type of arguing in court works out.

Rick "who doesn't want the prosecutor challenging me to prove stuff that should be stipulated, so why make them?" Denney

cyrus

6-Dec-2011, 10:28

Only if it is not stipulated. Would you actually try to force the state to prove that you took pictures when the ranger observed you pushing the button on the camera?

It would be the job of the state to prove it. They have to at least be prepared to do so.

rdenney

6-Dec-2011, 10:35

It would be the job of the state to prove it. They have to at least be prepared to do so.

You don't think the ranger's statement, "I saw him push the button" would be accepted as proof beyond a reasonable doubt by 99.9% of judges and juries, absent the defendant's challenge with witness accounts?

That's why my proposed wording doesn't even require that an exposure be made. It only requires disruptive activity, which is defined.

Rick "who has never yet heard a judge dismiss an officer's eyewitness account for an infraction case, and who has seen many traffic-related cases" Denney

cyrus

6-Dec-2011, 13:03

You don't think the ranger's statement, "I saw him push the button" would be accepted as proof beyond a reasonable doubt by 99.9% of judges and juries, absent the defendant's challenge with witness accounts?

Maybe maybe not. Point is, the cop is legally empowered to seize evidence of a crime. Like I said, there's no question that this was a dick move on his part, but dick moves aren't necessarily illegal.

Drew Wiley

6-Dec-2011, 14:49

It's a pretty well known fact that on certain So Cal beaches, adjacent property owners
and sympathetic public or private security folks are illegally restricting beach access
to the public, which is guaranteed by state law. There is entire groups of folks already
fighting this in the courts. But if it is in fact a state park ranger involved, it is a helluva
lot easier just to write a complaint letter to someone higher up in the specific organization. With all kinds of layoffs pending, this would be a helluva dumb time to
rile up the public. We once had a highway patrolman who was constantly starting
unreasonable fights with the locals on the route to Yosemite. He couldn't be fired by
contract, so he got "promoted" to Barstow. That probably made him think twice before
misbehaving again.

rdenney

6-Dec-2011, 14:55

That probably made him think twice before
misbehaving again.

Hell, no. In Barstow he can rough up hung-over Los Angeleans coming back from Vegas.

Rick "who'll watch his speed next time he goes that way" Denney

Brian Ellis

6-Dec-2011, 15:06

You don't think the ranger's statement, "I saw him push the button" would be accepted as proof beyond a reasonable doubt by 99.9% of judges and juries, absent the defendant's challenge with witness accounts?

That's why my proposed wording doesn't even require that an exposure be made. It only requires disruptive activity, which is defined.

Rick "who has never yet heard a judge dismiss an officer's eyewitness account for an infraction case, and who has seen many traffic-related cases" Denney

Defense attorney on cross-examination of the ranger: "How do you know a photograph was made?"

Ranger: "I saw the photographer push a button on the camera."

Defense attorney: "There are lots of buttons on cameras. Which one did he push?"

Ranger: "I don't know which button was pushed, I wasn't standing on top of the photographer."

Defense attorney: "Your honor, at this time I move for a directed verdict on the ground that the prosecution hasn't shown that a photograph was made, all that has been shown is that some unknown button on a camera was pushed."

Court: "Granted, case dismissed."

Of course like much of this thread, that's not only an over-simplification, it's completely unrealistic. No prosecutor would rely on that kind of testimony to prove a photograph had been made. What would really happen if the ranger and the prosecution did their jobs is that the ranger would testify that he took custody of the card and after going through some technicalities (e.g. establishing the chain of custody and identification of the card) the card itself would be introduced into evidence and used to establish that photographs were made.

Brian "who spent four years in law school to obtain two law degrees and practiced law for 31 years" Ellis

Greg Miller

6-Dec-2011, 15:37

Some folks here don't consider digital images to be photos in the first place. I think I'd grab a few of those people as subject matter witnesses, and the flash card that was seized, and deny that any photography, commercial or not, ever occurred ;)

BrianShaw

6-Dec-2011, 15:42

Rick "who has never yet heard a judge dismiss an officer's eyewitness account for an infraction case...

Not that it matters much, but a friend of mine presented evidence to a judge that "proved" a policeman "wrong" in a traffic infraction case. Geometry and the limits of human perception were the basis of his evidence. My friend, who has a PhD in the field of human perception even served as his own subject-matter expert.

Court: "Granted, case dismissed."

Drew Wiley

6-Dec-2011, 16:05

Rick - Barstow is just one slight step up from living in the bottom of hell where this
state is concerned (Bakerfield being the very bottom probably). Hot and dusty and nowhere. Getting relocated there is definitely punitive, though probably better than moving to Texas or some other dessicated third world country where even a jackrabbit has to carry a canteen and lunchbox. But hey - I figure anyone even packing a
digital camera is worthy of at least a felony charge for impersonating a photographer.
Kinda like identity theft.

Jeff Conrad

6-Dec-2011, 17:45

Defense attorney on cross-examination of the ranger: "How do you know a photograph was made?"

Ranger: "I saw the photographer push a button on the camera."

I am told that the ranger had to ask which person was the photographer, so she apparently didn’t see the photographer actually taking pictures. So if I were questioning the ranger, you can guess my first question before asking for dismissal (there probably would be no jury unless for some reason the photographer wanted the case tried as a misdemeanor).

I’ve questioned the suggested breakdown of the elements of the offense, but I suppose if there were a jury, a judge could arrive at an instruction something like:
To find the defendant guilty, you must determine, beyond a reasonable doubt, that the defendant

Photographed
In a Californa State Park
For commercial (profit and sale) purposes
Without a permit from the DPR

And if I were the defendant, I'd insist on a definition of ”profit and sale.” Self-evident, you say? Is “profit” simply the excess of receipts over costs? Do costs include labor? What about if the photogrpher were an employee of a non-profit? And you can get as pedantic as you want ...

In this case, everything falls apart with the first element, and accordingly, probably everything else. Absent such an easy out, the final element should be easy to prove, although there’s no indication that the ranger ever asked for a permit, and that would be my first question. The penultimate element, of course, would be the tough one to prove, and except in extraordinary circumstances, I don’t see how it’s possible.

Were I the defendant, even in pro per, I’d challenge the lawfulness of the stop (which the ranger would probably say was “consensual”), the search of the camera’s images (“the photographer voluntarily showed them as I fondled my weapon”), and I’d then ask how the ranger found probable cause to arrest. Especially if she didn’t actually observe me taking the pictures (if not, how was the offense committed in her presence?). Now, of course, anyone who dared to play this game in front of a judge who's spent the last four hours hearing traffic cases would probably get sentenced to six months in jail for contempt ... But there also are judges who would turn to the ranger and say, “Get the hell out of my courtroom and don’t ever come back with this sort of nonsense.”

What puzzles me here is that we seem to be focusing on the gerbil in the room rather than the elephant. Absent probable cause that a violation (all elements thereof) was committed in her presence, both the citation and the confiscation of the memory card were unlawful. Now I only have a smattering of the facts, and I’d never say “never,” but I’d need to see something a lot more convincing. If there’s any relevant precedent, I’ve yet to find it, because offenses like this seldom make it to the appellate courts unless they involve “molesting or annoying a minor,” which requires registration for life as a sex offender.

Police detain and arrest people all the time without lawful basis—witness the clowns in the LA County Sheriff’s Department that the ACLU are suing. Does that make it ”legal” until someone with deep pockets manages to have them held accountable?

Returning to the main point: if indeed the ranger had probable cause to issue the citation, she may have had cause to seize the memory card as evidence. Absent that, she did not. Period. We can argue forever about the determination of probable cause, but to me, to insist that such actions are “legal” until a court has determined otherwise is just plain nuts—were that the case, police could seize anything from anyone at any time and be fine. If a cop were to come up to you on the street, stick a gun in your face, and demand your camera for no reason at all, would you be OK with that? I’d need to see it to believe it ...

Again, it’s the elephant, not the gerbil. If there was probable cause that a public offense was committed in the ranger’s presence, I don’t question the legality of her actions. But nothing is even close to persuading me that such was the case. YMMV ...

rdenney

6-Dec-2011, 17:46

Not that it matters much, but a friend of mine presented evidence to a judge that "proved" a policeman "wrong" in a traffic infraction case. Geometry and the limits of human perception were the basis of his evidence. My friend, who has a PhD in the field of human perception even served as his own subject-matter expert.

Court: "Granted, case dismissed."

Yeah, I've helped people like that a couple of times, but then that's central to my line of work.

Point is, when I've been in such courtrooms, it was the judge asking the questions and rarely were attorneys even present to cross-examine anybody. But maybe this would be different. I've also heard judges put up the palm of their hand and tell the defendant to tell it to a court of record, which the infraction court was not. Guilty. The defendant had to appeal it to the county court, which required a bond and a bunch more red tape. Probably also not applicable.

But I don't think I'd let my lawyer intimate that I had not made photographs unless I really hadn't.

Rick "honesty has to start somewhere" Denney

lenser

6-Dec-2011, 18:29

So, I want to ask for a different approach to this. Has anyone simply contacted the appropriate offices about getting such a permit and asked within the context of their intended image making, "Do I need a permit" to take this kind of photograph?"

If told no (preferably in writing) does this not constitute the perfect basis for discussion with any ranger (enforcer) and subsequently the perfect defense if it goes in front of a judge?

Also, without going back through the entire thread to see if this has been noted, just what is the cost of this permit, if told that it was needed?

Jeff Conrad

6-Dec-2011, 19:00

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.
I’m all for at least starting with a list, much like collecting items in a brainstorming session—in my experience, it works a lot better than starting with potential final language and “arguing away from it”—people spend too much time arguing whether a phrase should use an en dash rather than a hyphen, and completely miss the substance. I’ve been there and done that too many times ...

Ideally, regulation would be based on objectively observable activity. For the wording of a law, though, it’s more easily said than done, and often opens cans of worms that no one previously knew existed. I again suggest looking at the rules for New York City and the definitions in the US Forest Service Handbook for some examples.

The problem with specific lists is that they necessarily involve arguably capricious choices—for example, why the limit of one off-camera flash? And why only one reflector? And what about diffusers? And so on. The California APA requires that a regulation be justified by ”substantial evidence,” and it would seem tough to provide that for arbitrary choices. Assuming, of course, that any photographers were even aware of a proposed regulation and bothered to comment ...

Some of the less concrete things can also be tough—for example, having the tendency to attract a crowd of onlookers. Although I agree in theory this probably is to be discouraged, the gathering of onlookers is arguably beyond the photographer’s control, and what constitutes such an activity is essentially at the whim of enforcement personnel, making it unsuitable for regulatory language. And a US District Court and Court of Appeals agreed in the case of Lederman v. US. Believe it or not, the “requirement” for permits for tripod on the US Capitol grounds derives from the traffic regulations, which also cover demonstrations, and require permits for demonstration that have a tendency to attract a crowd of onlookers. The Court found this language void for vagueness on its face and enjoined the US Capitol Police from enforcing it. Now Lederman didn’t involve photography, but I assume when a law is voided, it’s dead ... unless, of course, it isn’t—recall Cindy Sheehan’s arrest at the State of the Union under this regulation after it had been voided ... But I digress.

Many groups, especially businesses, prefer performance standards to prescriptive standards. The enacting legislation for the California APA also indicated such a preference; APA doesn’t formally require them, but does require that they be considered. In the case at had, there are pros and cons with either approach: performance standards (e.g., permits for potentially damaging or disruptive activities) can be so vague that they’re almost meaningless, but prescriptive standards (e.g., permits for specific activities and perhaps equipment) can become unmanageable because to be usable, a list must be almost perfect. So it’s no easy task, as those who have attempted it have discovered.

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,
In this case, it would also be a violation of the DPR’s authority under the Public Resources Code, and in any event, as I’ve repeatedly said, it really wasn’t the intent of §4316. I think we’re giving it more attention than it merits—what’s key is convincing the DPR that “profit and sale” isn’t equivalent to “potentially damaging or disruptive.”

So I think starting with a list is a good approach, and one I’ve suggested many times. But with everything considered, it would become quite a long one (the reason to have a fairly diverse group so that little of consequence gets overlooked), and might not prove workable for regulatory language. And of course, who and what would cause the list to be assembled?

During the development of what became Public Law 106-206 (which directs the Department of Agriculture and the Department of the Interior how to handle permits), a session something like this was actually held—but the final law still had many problems, as yet unresolved. Perhaps the problem here was that this law derived from several bills that would have required permits for all “commercial visual depictions” (Senator Campbell’s wording), and the effort for still photography mainly focused on arguing away from that position.

It seems to me that, for the main topic of this thread, the issue is how to persuade the DPR to change §4316, and I’ve suggested that’s no simple task. But of course we do need to know how we would like to have it read.

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.
Yep. And what about a writer or businessperson who uses a laptop in a park? Raise this issue to agency personnel (and it was raised in Santa Barbara), and the answer is usually, ”I don’t wanna go there.”

BrianShaw

6-Dec-2011, 19:42

But I don't think I'd let my lawyer intimate that I had not made photographs unless I really hadn't.

Rick "honesty has to start somewhere" Denney

What are you talking about? Has anyone but you even suggested perjury as a defense in this thread?

Jeff Conrad

6-Dec-2011, 19:46

So, I want to ask for a different approach to this. Has anyone simply contacted the appropriate offices about getting such a permit and asked within the context of their intended image making, "Do I need a permit" to take this kind of photograph?"
I’ve spoken with dozens of people at all levels in the DPR, and the answer you get depends on who happens to answer the phone. There are a fair number who have more important things to do with their time than harass photographers, and this applies to people with whom I’ve spoken on the phone and in park units. In many cases, unless the activity is outrageous, DPR personnel won’t raise the issue unless you raise it first (and they’ll then say you need a permit for any “commercial” photography, and perhaps direct you to the Guidelines for Filming in California State Parks (http://www.parks.ca.gov/pages/782/files/film.pdf)). But as we’ve seen, the “don’t ask, don’t tell” policy doesn’t always apply.

If told no (preferably in writing) does this not constitute the perfect basis for discussion with any ranger (enforcer) and subsequently the perfect defense if it goes in front of a judge?
Aside from the Guidelines noted above, there is no legal mechanism for doing so, and anyone who tried to provide it would be putting herself at risk by ostensibly defying the law. And whatever might be provided, enforcement personnel would be under no obligation to honor what they would probably see as a directive to avoid the law. Defense in court? A mistake of law, despite any advice that an action is legal, is not a defense to an offense.

Also, without going back through the entire thread to see if this has been noted, just what is the cost of this permit, if told that it was needed?
There is no charge for a permit. But that’s not the obstacle. A permit requires a certificate of insurance, which is a hassle for the small-scale photographer. But even the insurance is manageable once you get over the initial hurdle—the California Film Office will keep the certificate on file and confirm insurance to the park unit of interest. The killer is logistics—technically, every permitted shoot requires submission of form DPR 245A, with detailed descriptions of locations, dates, and times, and this must usually be submitted at leas 48 hours in advance. Some park units waive this nonsense for small-scale still photography, but many don’t.

Getting back to the original problem:

The regulation requires permits on a basis (”profit and sale”) that often simply cannot be determined, yet some rangers assume this intent when there are no objective indicia that this is the case.
The ostensible circumstances were never the intent, and the regulation accordingly is arguably invalid.
Getting the regulation changed is difficult, more because of the time, money, and effort entailed than because of substantive objection from the DPR.

Again, it’s the elephant, not the gerbil.

Jeff Conrad

6-Dec-2011, 20:42

What are you talking about? Has anyone but you even suggested perjury as a defense in this thread?
I think I was the only one who hinted at the “P” word, though I didn’t use it quite in this context. As Brian Ellis has repeatedly pointed out, it is the burden of the People to prove the offense rather than the burden of the photographer to deny it.

We seem to have run through several different courtroom scenarios, based on what we ass-u-me-d happened. If indeed the ranger didn’t see the cited photographer take pictures, the People’s case implodes at the outset. Rumor has it that even an assistant DA was stunned by the incident. Accordingly, I think the People will drop the case.

Hopefully, we’ll find that’s exactly what happened, and can drop this discussion as well. Until the next incident, at which time the cycle will repeat ...

BrianShaw

7-Dec-2011, 07:33

I think I was the only one who hinted at the “P” word, though I didn’t use it quite in this context. ...

Yes, I recall what you said. But what you said is a far cry from a thought that should elicit a comment like "honesty has to start somewhere", which more-than-implies that dishonesty is being promoted or suggested in this thread. I find that highly offensive and a total mischaracterization of the discussion. But that's just me.

BrianShaw

7-Dec-2011, 07:46

Rumor has it that even an assistant DA was stunned by the incident. Accordingly, I think the People will drop the case.

Hopefully, we’ll find that’s exactly what happened, and can drop this discussion as well. Until the next incident, at which time the cycle will repeat ...

Interesting. I mentioned it to a friend who is a DA... and he just rolled his eyes and shook his head. As a lawyer he spoke no opinion but said something like 'the judge will work this out, and probably won't take too much time reaching a conclusion'; as a photographer he was surprised and maybe a bit miffed; as a citizen he was offended; as a tax-payer he was outraged; as a LEO he said the Ranger might need a bit of 'job enrichement' if that's her biggest concern; as a DA he simply said something like 'we really don't have time for these chicken-shit cases and its a real shame - a lot of time, effort, and money is getting wasted by lots of people when there seems to be no harm done'.

I, too, can't wait to hear the end. I find it interesting that all of the lawyers and court-knowledgable people in this discussion can't really say what the format of this kind of hearing/trial is. I'm suspecting something more like "The People's Court", "Judge Judy", "Judge Roy Brown"... but hoping for something more like Judge Extreme Akim"!

rdenney

7-Dec-2011, 07:51

What are you talking about? Has anyone but you even suggested perjury as a defense in this thread?

Actually, this was something I extracted from Jeff's point, as I read it. If the defendant argues that pictures weren't taken, he may have to accuse the officer of perjury if the officer testifies that pictures were taken based on what the officer witnessed. If pictures were taken, but those pictures were not for profit and sale, then the fact that the pictures were taken doesn't matter and will probably be stipulated (especially if they really were taken). That was Jeff's point that I was describing in a different way. But perhaps I misunderstood Jeff.

I certainly did not draw that conclusion or repeat it with the intent of offending you. And I agree with Jeff that truth in this situation does not hinge on this issue.

Rick "honestly trying to be logical in an illogical situation" Denney

rdenney

7-Dec-2011, 07:57

I, too, can't wait to hear the end. I find it interesting that all of the lawyers and court-knowledgable people in this discussion can't really say what the format of this kind of hearing/trial is. I'm suspecting something more like "The People's Court", "Judge Judy", "Judge Roy Brown"... but hoping for something more like Judge Extreme Akim"!

"Night Court" is what keeps popping into my mind.

Rick "Fifty dollars and time served!" Denney

BrianShaw

7-Dec-2011, 08:12

Actually, this was something I extracted from Jeff's point, as I read it. ... But perhaps I misunderstood Jeff.

OK... perhaps he should have written something like, "... IF, and this is just a hypothetical 'if' and is nothing anyone here who has ethics would consider doing, and I'm certainly not advocating - or even implying advocation - of such an option..."

That's how I read it.

No problem, though.

p.s. I forgot about Night Court. I never watched that... was too busy. Funny show, I've heard.

Bill Burk

7-Dec-2011, 09:57

I’m all for at least starting with a list, much like collecting items in a brainstorming session—in my experience, it works a lot better than starting with potential final language and “arguing away from it”...

The problem with specific lists is that they necessarily involve arguably capricious choices—for example, why the limit of one off-camera flash? And why only one reflector? And what about diffusers?

I meant for us to make the list to use for vetting the proposed language. Then set it aside and check the change that gets passed.

A quick run through the brainstormed list will tell if the change met our needs.

It would possibly help us avoid prohibiting "resting equipment on any surface" which would be incompatible with a list item such as...

Taking sharp, high-quality, high resolution pictures - should be encouraged.

---
p.s. I got a laugh out of the idea to testify "digital is not photography so no photographs were taken".

p.p.s. - forgive me I can't resist deriving from Python -

Judge: This is a Fire Permit with the word "Fire" crossed-out and the word "Film" written-in in crayon.

Defendant: The man at the van didn't have the right form.

rdenney

7-Dec-2011, 10:42

The problem with specific lists is that they necessarily involve arguably capricious choices—for example, why the limit of one off-camera flash? And why only one reflector? And what about diffusers? And so on. The California APA requires that a regulation be justified by ”substantial evidence,” and it would seem tough to provide that for arbitrary choices. Assuming, of course, that any photographers were even aware of a proposed regulation and bothered to comment ...

My intent (hinted previously) was that these could be adjusted to suit the specific situation at a given park, and then posted at the park and on their website. The law would be more general to the rule-making that enables it.

I like Bill's list because it's based on activities. Each of these should be traced directly to one of those items as a way to verify that the requirement is not overly arbitrary.

I can think of some parks (not necessarily in California) where my rules would be appropriate to avoid disruption, but there are certainly other places where they would be excessive. And I've been to parks that required visitors stay on narrow trails or even boardwalks--any tripod would be disruptive to the park's other users, depending on how busy the park is.

Rick "traceability between the policy and the objective should be overt" Denney

Jeff Conrad

7-Dec-2011, 17:43

Interesting.I mentioned it to a friend who is a DA... and he just rolled his eyes and shook his head.
Honesty does have to start somewhere ... When a DA says a charge is bogus, you know it’s bogus. Here’s someone who apparently can spot the elephant among the gerbils.

Jeff Conrad

7-Dec-2011, 19:54

I meant for us to make the list to use for vetting the proposed language. Then set it aside and check the change that gets passed
As I said earlier, I think this is the ideal approach—at least that’s how it’s worked for me. What I suggested was more of a stopgap approach, suggestive of an alternative to having §4316 invalidated. But perhaps it’s not the right approach.

The trick is finding the right forum. A “start from basics” approach would rework the entire regulation, and would consequently be a major effort. To have any credibility (and to comply with open-government requirements), the effort would need to involve many different points of view, including motion-picture people, a broader spectrum of still photographers, people from the DPR, and probably a few NGOs to ensure that “commercial filmmakers and photographers” weren’t simply trying to gut the current regulation. This is much what was done at the workshops that discussed the same topic during the development of Public Law 106-206.

Unfortunately, such an effort quickly gets unwieldy because of the number of people involved. And it usually gets dominated by the motion-picture people, for the same reason Willie Sutton robbed banks. Could we get away with just changing the requirements for still photography? I don’t know, but I doubt it. The motion-picture people, especially small-scale documentary filmmakers, would probably cry foul, as they did for the new rules in National Parks. And the complaint has extended to all small- scale filmmakers—bills to have a single annual fee with a blanket permit for all filmmaking activities with crews of five or fewer people have been introduced from both sides of the aisle (though the NPS have strongly objected, and the efforts have not found traction). I’ve suggested that if they cut filmmakers such a break, they also should fix a couple of problems with the still-photography requirements. I’m sure in this case filmmakers would raise the same issue. If you have any doubts, take a look at the makeup of the California Film Commission.

Every group tend to focus on their own specific interests, and I don’t think we’re any different. Again, though I’d love to just cover still photography, I doubt we could get away with it.

The historical separation of still- and motion-picture photography probably needs to be reexamined because of the ability of many current digital still cameras (technically, including cell phones) to record high-quality video. Most regulations have traditionally treated “commercial” video recording the same as filmmaking; is it reasonable to do this for someone recording video with a digital SLR? And how would enforcement personnel know whether the images were still or moving without a Constitutionally impermissible search? But perhaps this is just another item in the list of things to consider.

And perhaps getting back to the list: I’ve had the best luck starting with the general (but readily articulable), and working to the specific, filling in the details on the way. Toward that end, I might start with list of types of photography and filmmaking from the most minimal to the most intrusive, perhaps something like

Snapshots (including cell phone cameras)
Landscape
Closeup
Wildlife
Portrait
Wedding (if it’s sufficiently different from portrait)
Fashion
Small-product advertising
Large-product (e.g., vehicles) advertising
Television commercials
Radio commercials (assuming sound recording should be regulated as well)
Documentary sound recordings
Documentary films
Feature motion pictures.

The list could be expanded, and each category further broken down and activity and equipment added. At some point, the need for regulation could then be assessed for each subcategory. For the California DPR, the only valid considerations would seem to be the potential for damage or disruption, essentially circumscribed by Public Resources Code. I can’t speak for other jurisdictions, but suspect that in many cases the situation is similar. And if we exclude “making money off public land,” what else is there? And finally, we might see if there is a way of expressing the requirements in a way that’s clear, justifiable, and enforceable.

As I’ve said, although this how I would ideally approach it, doing it in such a way that would gain any traction is a tall order, even if we just focused on the DPR (ya gotta start somewhere ...)

In any event, this thread has bounced in so many directions that I wonder if this shouldn’t be addressed in a new thread.

Jeff Conrad

7-Dec-2011, 20:51

My intent (hinted previously) was that these could be adjusted to suit the specific situation at a given park, and then posted at the park and on their website. The law would be more general to the rule-making that enables it.
The problem with tailoring it to each park is that raises the question of who does the tailoring. If it’s done at the whim of park managers, it essentially delegates regulatory authority to enforcement personnel, and runs into serious problems with due process. We couldn’t do it in California; every park that has specific rules has them in the California Code of Regulations. Even then, there are problems, for example, that under 14 CCR §4613 for the California State Railroad Museum:

(b) Photography.

No person shall use photographic equipment or techniques when informed by staff or posted notice that their use is prohibited.

The “rules” consequently depend on who’s collecting the admission fee and who’s walking around the museum. This regulation is so blatantly void for vagueness that a beginning law student probably wouldn’t believe it wasn’t made up (someone who’s practiced law for 31 years probably wouldn’t be surprised by anything ...). Yet we’re stuck with this unless someone has the funds to get it voided.

The Office of Administrative Law did object to the initial wording, which was, in relevant part,

... the Department may limit photographic equipment and techniques.

The initial justification was essentially nonexistent, and the DPR’s response to the OAL’s objection was laughable. Think what the rules would be like if left up to the manager of each park unit. Or the ticket clerk for the day. Or our friend in Malibu (Merry22 didn’t say whether it was Malibu Creek or Malibu Lagoon) ...

In some cases, there may be a workable alternative. San Francisco parks are a good example; the Park Code contains the general rules, but authorizes the Recreation and Park Commission to adopt additional rules for specific parks and post them at those locations. It’s yet another delegation of authority, but at least it ensures some process.

So I remain skeptical of very specific lists of equipment and activities, simply because I’ve yet to see anyone pull this off. And I’m very leary about letting individual locations set their own rules without some assurance of process.