Police, Protestors Winter 2012 and the Press

How a wave of across the nation has tested police-press relations, and what it means for journalists who cover them.

“I’m with the press! I’m with the press!” a reporter yelled out as he was getting arrested. “I’ve got a press pass!” The conventional wisdom was that yelling that identi- fying phrase above the din of a rallying crowd or amidst the confusion of police action could help a journalist avoid arrest. But now, as documented in a series of videos that have surfaced across the Internet since the Wall Street protests have swept the nation, such shouts are likely to land journalists in handcuffs. Matthew Hamill, a host at Radio Free Nashville, yelled “I’m with the press” on Dec. 3 while covering . The officer replied “I don’t care who you are,” as he slapped on the handcuffs. These days, credentials dangling around a reporter’s neck intended to provide special access to places are no guarantee that police will not lump the reporter in with protestors on charges, some of which are later dropped, such as disorderly conduct, trespassing or failure to comply with police orders. continued inside If a reporter is lucky enough to avoid arrest, press passes, sure any future civil rights suit can be successful. which once afforded journalist more access than the general This guide is meant as an introduction for journalists to the gen- public to incident scenes, are sometimes used to identify the eral law that governs claims that the government somehow vio- folks who are corralled in press pens out of shot of the stories lated an individual’s civil rights and discusses the factual scenarios developing on the streets. that often determine the results. It does not replace the legal advice And, perhaps most telling, fewer reporters are shouting “I’m from an attorney in one’s own state when confronted with a spe- press!” for fear that it will make them clear targets for get- cific legal problem. Journalists who have additional questions or ting ordered back, harassed, roughed up or even arrested by who need to find a lawyer with experience litigating these types of authorities who would rather not have the press closely docu- claims can contact the Reporters Committee at (800) 336-4243. menting their activities. To be sure, these allegations of deteriorating police-press relations surrounding the coverage of the and similar incidents involving law enforcement officers do not necessarily represent a trend that has spread to police Contents departments across the nation. In fact, many have maintained Main article: good ties with members of the media, and others have been After an arrest...... 3 responsive to concerns voiced by the press. But with the dozens of reporters—members of the main- Other articles: stream media, students, freelancers, bloggers and even car- Who’s impeding whom?...... 2 toonists—that have been arrested or harassed in the months Convention/Event Hotlines...... 5 of covering the Occupy protests, the coverage has reignited an Looking to policy ...... 6 important debate about police-press relations. And at a time What to expect if you can’t avoid arrest...... 8 when it seems the protestor will continue to command the A way forward...... 11 attention of the media with the sustained Occupy movement No fly zone...... 12 and what will likely be the most volatile national political con- Right to record...... 14 ventions of the decade this summer, journalists are beginning Woman faced 15 years for recording police..... 16 to ask what kind of stage is being set as they continue to cover the chaos. And if communications should break down and a journalist Funding for this publication was provided by gets arrested, he or she needs to know what to do during and The McCormick Foundation. after that arrest. That includes knowing what to do to make

Who’s impeding whom? By Kirsten Berg testors.) on WOR-AM. At events with huge crowds, rowdy Take for example New York City, where Although the press quickly dismissed protestors, and large law enforcement the birthplace of the some of these explanations and media presence—high-intensity situations for Movement has become a microcosm advocates as unfounded (do reporters cops and journalists— professions col- of these strained police-press relations. in dangerous war zones get held back lide as adrenaline runs high. Faced with reports of 26 journalists (five of for their own safety?, quipped a few Most of the journalism and law them credentialed by the New York City journos), that question of interference enforcement communities agree that Police Department) arrested the night and reporters rights again dominated reporters should be able to do their of the November eviction debate. work covering these protests, so long alone and allegations of roughing up jour- Press and civil liberties advocates, as they are not breaking laws or inter- nalists and blocking their newgathering, however, seemed to signal that they fering with police action. city officials staunchly defended police thought the actions of press inter- But differing definitions of “inter- actions. ference they had documented dur- fering” and even “law-breaking” have There was no media blackout, they ing the Nov. 15 eviction reflected a enflamed debate between these groups claimed. The media was kept back in press clear, department-wide policy to keep over essentially who-is-impeding-who pens for their own safety. reporters away from the scene. This doing their job. In some situations, Many of the reporters did not hold obstruction, a sternly-worded letter the argument is complicated by the up-to-date NYPD-press passes, the city signed by media organizations includ- somewhat chaotic crowd situations alleged. ing the Reporters Committee for Free- that surround them. (It should be While some of the journalists had their dom of the Press said, amounted to worth noting, however, that some of arrests voided, the city said others were actions “more hostile to the press than the situations of reporter harassment rightfully booked for trespassing or disor- any other event in recent memory” and and arrest also occurred during small, derly conduct. were “inappropriate, if not unconstitu- tame events, such as when visibly cre- “You don’t have a right as a press person, tional.” In short, these actions were not dentialed, equipment-laden Milwau- I don’t think, to stand in the way just in taken out of legitimate concerns about kee Journal-Sentinel reporter Kristyna the interest of getting the story,” said New journalists interfering with police work. Wentz-Graff was one of three arrested York Mayor, and media mogul, Michael “We have never argued, for example, during a street march of only 30 pro- Bloomberg during his weekly radio slot continued on page 4

2 The Reporters Committee for Freedom of the Press “Democracy Now!” host Amy Goodman and two producers were among the more than 40 journalists arrested during the 2008 RNC convention while covering the protests in downtown St. Paul. After an arrest A journalist’s guide to civil rights claims and other remedies for government interference with newsgathering activities

By Kristen Rasmussen teed under the U.S. Constitution, he or action for violation of their right to be More than 40 journalists were arrested she may be able to sue the official in civil free from unlawful searches and seizures while covering protests during the 2008 court. These civil rights claims, brought under the Fourth Amendment. When Republican National Convention in St. under federal law 42 U.S.C. § 1983 and officials confiscate journalists’ notes, film, Paul. All charges were dropped, and a thus often dubbed “Section 1983 claims,” video or other newsgathering equipment broadcast journalist and two producers, allow a plaintiff to seek damages from the or arrest them without probable cause, a the latter of whom said they were blood- government and the official for the latter’s Section 1983 claim or Bivens action under ied during their encounters with police, unlawful conduct. Generally, the purpose this theory may be appropriate. sued the Minneapolis and St. Paul police of a Section 1983 claim is to prevent civil departments. The agencies recently rights violations by government officials. Potential defendants agreed to pay the journalists $100,000 to Section 1983, adopted as part of the Civil Although a civil rights claim can be settle the suit. Rights Act of 1871 and then informally brought only against a government offi- On the other hand, seven student jour- known as the Ku Klux Klan Act, applies cial acting “under color of” law, that does nalists covering International Monetary to state and local officials. The right to not mean an official must be on duty. For Fund and World Bank demonstrations in sue a federal official for such violations — example, a newspaper publisher brought Washington, D.C., were among the more called a Bivens action after the 1971 case a successful Section 1983 action against than 650 people arrested during the cha- in which the U.S. Supreme Court allowed off-duty sheriff deputies who attempted otic event. Four of the students sued the such claims — is not explicitly authorized to buy and throw away all copies of an D.C. police department, U.S. Attorney by the statute but springs from the Fourth election-day newspaper criticizing their General and National Park Service. This Amendment right to be free from unrea- favorite candidates. This attempt to regu- October will mark the 10th anniversary sonable searches and seizures. late or censor the news violated the speak- of the filing of the lawsuit, which is still Most civil rights claims brought by er’s constitutional right to communicate, pending in federal court. journalists allege violation of the report- as well as the audience’s right to receive Scenarios like these raise an obvious ers’ rights to freedom of the press and to the information, the U.S. District Court question: How can such seemingly similar gather news under the First Amendment. in Baltimore ruled in Rossignol v. Voorhaar incidents give rise to such different out- Actions that may constitute an infringe- in 2004. comes? The answer centers on a number ment of this right include the detention Although 42 U.S.C. § 1983 does not of legal doctrines, courts’ interpretation and arrest of reporters as they do their explicitly allow suits against federal offi- of which depends on the specific facts of jobs, interference with their ability to cers for violations of constitutional rights, a particular case. gather information and report on mat- the U.S. Supreme Court in Bivens v. Six ters of public interest and concern by, for Unknown Named Agents held that a victim Elements of a civil rights claim example, denying access to a place where whose Fourth Amendment rights had When a journalist or member of the a newsworthy event has occurred and been violated by Federal Bureau of Nar- public believes that a government official harassment or retaliation for journalists’ cotics agents could sue for the violation of purporting to be performing official duties publishing or newsgathering activities. the amendment itself, despite the lack of deprived the individual of a right guaran- Journalists may also bring a civil rights any federal statute authorizing such a suit.

Winter 2012: Police, Protesters and the Press 3 Bivens’ creation in 1971 of a cause of may only be brought against individual knowingly violate the law.” action against federal officers has become officers, not the government agencies that The issue has risen recently in causes of particularly significant in recent years, employ them. actions stemming from arrests for record- said Alexis Agathocleous, a staff attorney ing the police in the performance of their at the Center for Constitutional Rights Immunity issue public duties. Not surprisingly, the split who represented “Democracy Now!” One of the most significant impediments in legal authority about whether a con- news hour host Amy Goodman and to a successful civil rights claim is the gov- stitutional right to videotape the police in producers Sharif Abdel Kouddous and ernment’s invocation of qualified immu- public exists is reflected in courts’ quali- Nicole Salazar in their lawsuit stemming nity. Under this doctrine, government fied immunity decisions. from their arrests while covering the 2008 officials are shielded from civil liability When Simon Glik recorded police offi- Republican National Convention. if their conduct did not violate clearly cers arresting a suspect on the Boston “There has been an increase in the polic- established rights of which a reasonable Common, they arrested him for, among ing [of newsworthy events] by federal law person would have known. Even if offi- other charges, violation of the Massa- enforcement officers around the country, cials violated a well-established right, they chusetts wiretap statute, which criminal- particularly at mass demonstrations,” may still be entitled to immunity if they izes secretly recording an in-person or Agathocleous said. “They view these can show that their actions were objec- telephone conversation without the con- events as matters of national security.” tively reasonable in light of the law and sent of all parties to the conversation. A In addition to the municipal police the information they had at the time of Boston Municipal Court judge dismissed departments, Goodman, Kouddous and the action. The Supreme Court has said the charge after the officers admitted that Salazar also named an unidentified U.S. that the doctrine provides ample room Glik publicly and openly recorded them, Secret Service agent as a defendant. for mistaken judgments by protecting “all in contravention of the law’s requirement Unlike Section 1983 claims, Bivens actions but the plainly incompetent or those who that an unlawful recording be secret.

Who’s impeding whom? citizen’s camera-phone or a journalist’s Amendment rights for newsgathering, continued from page 2 professional video equipment, some offi- however, it is more complicated. that the press or news photographers cers are reacting to being in the spotlight Most courts have ruled that the same should be able to trample all over a for actions that formerly occurred in the laws apply to the press and the public. crime scene, get so close they are in the shadows. So a journalist is not immune from way of arresting people, or get in the In fact, some of the most damning por- charges such as unlawful assembly or way of police going after a suspected traits of police action during the Occupy disobeying a police order, even when criminal, compromising the ability of movement, for example the cop pepper- they are doing so because they are cov- the police to do their jobs,” said David spraying the line of peaceful protestors ering the allegedly law-breaking pro- Diaz, vice president of the New York near Wall Street, came from an observer testors brought in on the same charges. Press Club (NYPC) and spokesperson pointing a camera right at them. Most of An arresting official still has to prove for the Coalition for the First Amend- this coverage was taken from a reasonable probable cause for arrest, however, and ment, a newly formed association of distance in public, but whether some of cannot arrest a journalist simply out of New York-area media outlets that rose the attempts to get close to the action for irritation or frustration. out of deteriorating police-press rela- the perfect shot are interfering with police In a limited number of cases, report- tions in that area. work is still up for debate. But at least one ers can successfully sue police officers “The Zuccotti situation is the quint- police chief, Tim Dolan of Minneapolis, under the First Amendment for unlaw- essential scenario that justifies many thinks it usually does not interfere. fully interfering with their newsgather- of the freedoms of the press,” he said, “Cameras in your face are not going to ing. To be successful, reporters must adding that if the press has any man- impede officers anymore. Everyone who prove that they were detained specifi- date at all under the First Amendment is out there has a camera or a cell phone, cally because they were covering the privileges, it is to report on government and you see scenes of a bunch of people news, not just because they were sus- actions of controversial and potentially charging a police line and 50 people pected of breaking a law. But this is a illegal nature. “Certainly going in and recording him or her. Cameras are not an difficult assertion to prove in court: using police force to evict peaceful pro- obstruction anymore,” he said. Did police arrest the reporter because testors from a park, even if they were So in the disagreement about interfer- they were trying to control the scene, there illegally, is something the press ence and law breaking, where is the line or was it to stop the journalist from has every right to witness and report. drawn? reporting? It was in public. Legally, the rights of reporters to gather And journalists can sometimes turn But when there are organized efforts the news in these types of situations are to other defenses. For example, a law to prevent the press from reporting on somewhat murky. may not give the reporter the right to these events, such as what he said hap- What is absolute is that reporters follow protestors as they trespass on pened during the eviction, it means the have the same rights as other citizens to private property, but he or she may be administration gets to control the nar- observe, photograph, and record in public able to get their charges dismissed on rative of the events, Diaz said. spaces. This means that authorities can- more technical arguments about intent At least part of the problem, media not, for example, keep journalists back for or lack of damages. advocates and police agree, is the per- their own safety or stop them from pho- Ultimately, however, the choice about meation of the everyone-has-a-camera, tographing on a sidewalk if the public is referring reporters for prosecution in gotcha-moment, viral video culture allowed in those areas. these situations comes on a depart- of today. Whether it is the lens of a In terms of specific, guaranteed First ment-by-department basis. u

4 The Reporters Committee for Freedom of the Press AP Photographer Matthew Rourke was arrested during the 2008 Republican National Convention in St. Paul.

AP photos

Glik sued in federal court, alleging that tecting and promoting ‘the free discussion all parties to record in situations where the officers violated his First and Fourth of governmental affairs.’” there is a reasonable expectation of pri- Amendment rights by arresting him for Because the officers allegedly violated a vacy. Before the officer arrested Kelly, openly recording police officers carrying clearly established right, they are not enti- however, he confirmed his decision to do out their duties in public and confiscating tled to immunity from liability, and Glik’s so with the assistant district attorney, who his recording device, his cell phone. lawsuit against them may proceed. Glik told the officer it was appropriate for him The officers moved to dismiss, asserting has said that he plans to pursue the claim. to arrest Kelly for violation of the statute. qualified immunity from liability because But another man arrested for recording Charges against Kelly were dropped, Glik did not have a clearly established the police as they carried out their official and he sued the officer, claiming that sei- First Amendment right to document duties does not have that opportunity. zure of his camera and his arrest violated police conduct. A U.S. District Court Like Glik, Brian Kelly, the passenger in his Fourth and First Amendment rights. in Boston last June denied the officers’ a truck pulled over by law enforcement in A U.S. District Court in Harrisburg, motion to dismiss. Carlisle, Pa., was arrested for violation of Pa., granted the defense motion for sum- The court in Glik v. Cunniffe stated that a state wiretapping law, in his case Penn- mary judgment, holding that the officer “in the First Circuit, this First Amend- sylvania’s, which requires the consent of was immune from liability because any ment right publicly to record the activi- ties of police officers on public business is clearly established.” The officers appealed the denial of the Convention/Event Hotlines motion to the U.S. Court of Appeals The Reporters Committee will be operating special hotlines for journalists in Boston (1st Cir.), which last August during the G8 Summit in in May, as well as the two national political upheld the denial in an opinion that party conventions in late summer. vigorously affirmed that the newsgather- ing protections of the First Amendment Democratic National Convention Republican National Convention extend to “the filming of government Sept. 3-6, Charlotte, N.C.: Aug. 27-30, Tampa, Fla. officials engaged in their duties in a public McGuireWoods LLP Thomas & LoCicero place, including police officers perform- ing their responsibilities.” G-8 Summit This right is a “basic, vital, and well- May 15-22, Chicago established liberty safeguarded by the Mandell Menkes LLC First Amendment,” the court said. “It is firmly established that the First Amend- Local phone numbers will be established closer to the conventions and will be ment’s aegis extends further than the announced on the Reporters Committee website. As a backup, journalists can text’s proscription on laws ‘abridging the always call the Reporters Committee’s main hotline, which operates 24 hours a freedom of speech, or of the press,’ and day, year round. encompasses a range of conduct related to the gathering and dissemination of infor- Reporters Committee Hotline mation. Gathering information about government officials in a form that can 800-336-4243 readily be disseminated to others serves a cardinal First Amendment interest in pro-

Winter 2012: Police, Protesters and the Press 5 Looking to policy By Kirsten Berg As recent protests have proven, police-press relations are defined on a city-by-city basis, and sometimes even officer-by-officer basis. Some departments have different policies towards reporters doing their jobs as a matter of attitude or train- ing. For example, they may have a rule about not arresting credentialed or otherwise recognizable journalists or about dropping charges against them if they are detained. Some of these regulations are spelled out, such as in New York where a police manual reads, “When incidents spill over or occur on private prop- erty, members of the media will not be arrested for criminal trespass, unless an owner or representative expressly indi- cates that the press is not to be permit- ted.” Though, as the arrests during the Journal Sentinel photo Zuccotti Park eviction proved, these Milwaukee Journal Sentinel photojournalist Kristyna Wentz-Graff was arrested in November regulations were not always followed. while covering an Occupy Milwaukee . Police said it was not clear she was a journalist, though her Journal Sentinel ID badge is visible in the photo. But if the police and the press could work together and form a mutually After a series of meetings that he con- The report also states that police should accepted policy about treatment of the ducted with members of the press, spe- be able to expect that the press will do press during these sometimes chaotic cifically reporters from local newspapers their part by carrying appropriate media events, what would it look like? and television stations, the group came up credentials and understanding depart- One answer may come from the Min- with agreed upon recommendations. The ment policies and laws. neapolis Police Department. In 2008, result: an eight-page section of the report Chief Dolan admits that the topic of the cities of St. Paul and Minneapolis “Principles of Policing Mass Demonstra- how to deal with members of the press co-hosted the Republican National tions” devoted to highlighting the impor- can sometimes be controversial among his Convention, which became a source of tance of police-press relations in a demo- police colleagues in other cities, especially tension for police-press relations when cratic society, bulleted responsibilities for in matters where members of the media dozens of reporters were arrested while the police and the press to follow in these may be considered to be breaking the law. covering the demonstrations outside situations, and enumerated guidelines for Dolan said this even came up during the convention center. police dealing with the media during such the convention, noting that St. Paul had After the Twin Cities finished their protests. (A full copy of these guidelines different policies than its twin city Min- hosting duties, Minneapolis Chief is available on the Reporters Committee neapolis on this same topic. For example, of Police Tim Dolan asked to work Website.) unlike St. Paul, he said, Minneapolis with the Police Executive Research The document, for example, suggests would quickly “unarrest” reporters who Forum (PERF), an organization of law creating a “cooperative” climate by hav- had been caught up in massive sweep enforcement leadership from major ing police meet with journalists before arrests, rather than detaining and charg- cities that focuses on police policies of events when possible, setting up a process ing them. which he is a board member, to craft for easily and uniformly identifying jour- “In these cases we are not talking about a report about the event and evalu- nalists, clarifying rules about access and participation in damaged property, we are ate what would be the best policies to dispersal orders in writing, inviting jour- talking about a failure to obey a command adopt in the future for policing large nalists to observe police training, setting to disperse. In these types of situations, events. Dolan specifically requested up media observation areas when they are we recognize that a reporter covering a that one focus had to be on drafting necessary within a reasonable viewing and story will not obey that order,” he said. best practices for how to deal with audible range of the event and providing He said with future events, especially members of the media. (Lawyers rep- ample numbers of public information offi- ones like the conventions that can be resenting the Reporters Committee cers to relay information or mediate con- planned in advance, he would consider and its hotline during the convention flicts. The guidelines also suggest excluding issuing separate credentials for reporters met with Dolan and others before media from mass arrests of protesters when covering events outside the convention hand to discuss exactly these concerns, possible, for example by warning journal- floor so that his force would not have the and how police would work with the ists when arrests are imminent, or, if media burden of determining who is a reporter media.) arrests occur, quickly releasing them. and who is not on the spot. He said the

6 The Reporters Committee for Freedom of the Press reasonable officer in his situation would have relied on advice given by the assis- process should be open to all and that the matter of approach and attitude,” said tant district attorney. requirements would be set so that new Christopher Dunn, the associate legal Kelly appealed to the U.S. Court of media, such as bloggers, could be accom- director at the New York Civil Liber- Appeals in Philadelphia (3rd Cir.), which modated. ties Union, who has been monitoring held last October in Kelly v. Borough He said he has shared his thoughts and incidents of police-press relations sur- of Carlisle that the officer was entitled experiences, though not necessarily these rounding the Occupy protests in New to qualified immunity on Kelly’s First written guidelines, with other police York. Amendment claim because, due to “insuf- departments though PERF, including “The philosophy that seems to be ficient case law,” there was no established with the future convention host cities coming form the top [of the NYPD] right to videotape a police officer during Tampa and Charlotte. But, he reiterated, is to be aggressive with reporters, and a traffic stop. The finding, however, was it is ultimately up to each department to until you see that change, you are not limited to the particular, narrow context choose what policies they think are best going to see changes on the street,” he of traffic stops, which are often “inher- for them to adopt. said. ently dangerous,” the court said. And police policies alone are not enough, For one, they have been more recep- Generally, qualified immunity will not as New York-area media advocates have tive to complaints and concerns of be a significant issue in civil rights suits had to reiterate in their struggle to get reporter treatment since the eviction brought by journalists arrested for simply better treatment for reporters covering incidents, or at least quicker to respond, doing their job while not interfering with police action. said New York Times vice president and police duties — claims like those of the In New York, the police patrol guide counsel George Freeman. “Democracy Now!” journalists, accord- actually states specific, favorable policies Freeman was also present at a meet- ing to Agathocleous, their lawyer. That’s toward the press, thanks to a 1999 agree- ing between media organizations and because there is a strong body of law ment between the force and the media. the police department requested by nationwide holding that the First Amend- The guidelines include rules such as not advocates a few days after the raid. He ment protects newsgathering activities, interfering with videotaping or photo- explained that the finest message was particularly in public places. Such case law graphing in public places and that the an immediate and welcomed response makes a claim that the right is not clearly media be given access within a clear sight to the concerns being voiced, but that established implausible and an arrest for of events—both of which press advocates it did not seem to produce immediate the exercise of this right unreasonable. say have been clearly violated by the results as demonstrated by the other “In our case, it was so clear,” he said. department despite being on the books interference issues that happened “There was powerful video footage of for over a decade. in the days following. (He noted, (Goodman) backing up from the police To their credit, and as a direct result however, that the NYPD responded and saying, ‘Where should I go? Where of a meeting between press representa- quickly to a letter he sent about the should I go?’ and then her down on the tives and the administration in response incident with the Times’ Stolarik and ground” after an encounter with the to the Zuccotti Park raid, Commissioner said they were looking into the issue police. Raymond Kelly issued a department-wide and would consider disciplinary action The issue is a closer call, however, when “finest” message, an order read at 10 for that officer.) journalists do not comply with police consecutive roll calls reiterating the non- He also said that officers at the meet- instructions intended to maintain public interference clauses of the guide. ing had informed him that there was safety and order, Agathocleous said. This But just days after the Zuccotti Park ongoing police training about how to scenario is often seen when reporters, incidents, more incidents of interfering deal with members of the media, which asserting their First Amendment news- with reporters popped up, including one itself was a response to a summer meet- gathering rights, insist on crossing bound- videotaped encounter of an NYPD officer ing about a separate press interference aries established by law enforcement to stepping back and forth to use his body to incident involving the NYPD. The serve these public interests or otherwise physically block a New York Times photog- department has since elaborated on refuse to observe regulations that apply to rapher from taking a picture of an ongo- the training, saying it includes rehash- all members of the public, he added. ing arrest during an Occupy Wall Street ing NYPD directives about dealing This was the situation in another Min- demonstration in the World Financial with members of the press in lectures, nesota case in which two public access Center. The near cartoonish actions of handouts, slideshows and training. television show hosts arrested at a recep- the officer using his body to stop seasoned But the NYPC’s Diaz said it again tion honoring three departing city council photographer Robert Stolarik prompted is an issue of in-writing, or rather in- members. Their confrontation with police a “Are you really doing this right now?” training, versus in-practice ensued after the pair was asked to leave from the journalist. “You can say ‘yes, come do a class’ the event because they refused to pay the This leads many media advocates to and instruct to the needs of the news $15 entrance fee. Police officers escorted diagnose the problem, at least in New media, what our rights actually are, but the men into a hallway, where a verbal York, as an issue of attitude, not policy. if the culture they are in and the mes- and physical confrontation occurred. The “The problem is not with the policies, sages they are getting are ‘well that is parties disputed the details of the inter- they are good as written. I have been all well and good, but do as you see fit action, with one of the television hosts around long enough to see what this and if you think that the press is over- claiming that he peacefully cooperated department has looked like under differ- stepping its boundaries, you make your with the police until they injured him and ent administrations, and it has been as own subjective judgments,’ it won’t do the police alleging that the man began to u bad as it has been in a long time. It is a any good.” act unruly when asked to leave. The offi- cers said force was necessary to subdue

Winter 2012: Police, Protesters and the Press 7 this man, who was arrested and charged with disorderly conduct, obstructing legal process and obstructing legal process with force. Throughout this confrontation, the television host who was arrested operated a video recorder, which he passed to his co-host when he was arrested. The co- host refused to voluntarily give the vid- eotape inside the recorder to the officers when they asked him to do so. As a result, the police restrained the man and then confiscated the tape without a warrant. The arrested man later sued, claiming, among other violations, that the officers infringed his Fourth Amendment right by seizing his tape without a warrant. The police argued that they were immune

till from NBC New York video York NBC New S till from from liability, and a U.S. District Court A local NBC New York reporter was held back and threatened with arrest as New York in Minneapolis agreed. The officers’ con- police removed Occupy Wall Street protesters from Zuccotti Park in November 2011. fiscation of the tape was proper, the judge Several journalists were detained during the event, although they were not charged. held in Berglund v. City of Maplewood, Minn., because they reasonably believed

What to expect if you Be mindful, however, that following such a procedure does not guarantee your protection from arrest, as self-described can’t avoid arrest adventure photographer Jerry Nelson, also an Occupy D.C. The Reporters Committee for Freedom of the Press offers protester who camped out full-time, said he discovered while some tips on how to avoid common problems experienced by taking photographs of the police as they prepared to evict the reporters while covering demonstrations and other mass public demonstrators from a public park in early February. events, and provides some insight about what to expect if you “I was standing alone watching the activity when about five are arrested during one of them. park police surrounded me and told me they wanted to speak Journalists should be prepared for a large-scale disturbance by with me,” Nelson wrote in a column published on HuffPost always carrying several essential items, including: DC, the Washington, D.C., edition of the online newspaper • a government-issued photo identification card. If you are The Huffington Post. “When I asked what this was about one of detained without a government-issued I.D., the police will hold them took the cigarette from my mouth while another slipped you until you can be fingerprinted and positively identified, a the plasti-cuffs over my wrists and pulled them so tight I could process that can take several hours and makes you ineligible for feel the skin tear beneath them.” immediate release on bond. In the event police detain you during a disturbance, remain • If you have a police-issued press pass, credential or other calm and obey instructions. In addition: documentation of your function as someone who gathers and • notify the arresting officer that you are a news reporter and disseminates information to the public, be sure it is with you at show your credentials if you have any; all times as well. • ask that a supervising officer be notified that a reporter is • Carry cash and/or a credit card with you to post bond. being detained; and • Make it visually obvious you are a member of the press. It • seek permission to call your organization’s lawyer or the is advisable to always wear a hat and/or shirt that displays the Reporters Committee legal defense hotline at your earliest word “PRESS” prominently. opportunity, as the attorney can be of little, if any, assistance If an event becomes the subject of law enforcement activity, before speaking with you. If you are taken into custody and the best way to avoid being arrested is to report on those activi- unable to place this call, try to inform a colleague, employer or ties in a manner that does not obstruct the law enforcement somebody else to contact those individuals on your behalf. You activity, and to follow all police orders. Do not walk through may wish to keep an open phone line with an editor during the a police line without first showing your press pass or I.D. and event if you expect trouble. obtaining permission. Keep in mind that press credentials If you are arrested for disorderly conduct, disturbing the issued by various government entities may be recognized in peace, failure to follow a police order or any other non-felony some places but not others. infraction, the quickest way to get back onto the streets to con- Identifying yourself as a news reporter may reduce the likeli- tinue reporting is to cooperate and post bond. hood of arrest, and may facilitate your release if you are caught Your arrest may be videotaped; if so, both you and the officer up in a mass arrest. If you are covering the activities of a crowd will be visible on the tape, and the officer will identify you and that invites arrest and want to avoid being arrested along with verbally state the probable cause for the arrest, although at least them, move to the periphery of the activity so you can readily two journalists, including Nelson, have reported that police detach yourself should that prove necessary. declined to provide details of why they were arrested. This

8 The Reporters Committee for Freedom of the Press that the film contained evidence of a newsgathering activities is often a critical objections to law enforcement officers crime, the man’s alleged disorderly con- element of a successful civil rights claim. at the scene and in the aftermath of the duct, that might be destroyed if they did “The best-case (factual) scenario is that encounter may very well affect its out- not seize the tape — circumstances that of a journalist who can show that he really come, Kissinger said. Beyond perhaps allow the police to seize material without went above and beyond in following instigating the official discipline in the a warrant. Moreover, the officers acted instructions,” Kissinger said. “If you can first place, “the fact that a journalist had reasonably when viewing and copying the show that you objected (to the restriction) been disrespectful might get in the way of tape, the original of which they held as without violating rules or with minimum a (subsequent) negotiation” between the evidence, and provided a copy to the host interference of the police duties and fol- parties, she said. within a reasonable amount of time, the low their rules as closely as you can, but court said. The police also acted reason- your rights were still violated, the fact that Remedies for harassing or ably, according to the judge, in denying you did not break the law is going to help retaliatory behavior the hosts access to the event because they you a lot.” Journalists regularly call The Report- did not pay the entrance fee and used an Accordingly, journalists are well-served ers Committee for Freedom of the acceptable amount of force to arrest the by adhering to the law, even if doing so Press’ legal defense hotline complaining one host and remove the tape from the means their coverage of a particular event that local government officials who are other. is severely restricted, and challenging the displeased with their newsgathering or Ashley Kissinger, the media lawyer who restriction after the fact. This may mean, publishing activities engage in harass- represented the Maryland publisher who for example, leaving a cordoned-off area ing or retaliatory conduct that makes the successfully sued the local sheriff deputies or accepting a citation and then appealing job nearly impossible. These acts range for trying to buy and throw away all cop- the actions later. from asking the journalist’s supervisor to ies of a paper, said a journalist’s full com- Along these lines, the language journal- bar the reporter from gathering or pub- pliance with rules and orders restricting ists and others use when communicating lishing information about the official, to

also was the case for Jacquie Kubin, online communities edi- cash as you are comfortable carrying. Posting bond is only a tor at The Washington Times, who was charged with assaulting a means whereby officials may release you from custody and still police officer and crossing police lines while she was covering ensure your appearance at a future court proceeding and is not the Conservative Political Action Conference in Washington, the equivalent of pleading guilty or taking any other action D.C., in mid-February. related to the pending charge or charges. However, be aware After the arrest, you will then likely be taken to a facility of whether what you are signing is such a bond arrangement, being used by the police during the event for initial process- or contains language suggesting that you are admitting guilt. ing. Nelson, for example, said he was led to a processing tent • If you cannot or refuse to post bond, you will likely be taken the police had set up on site earlier in the day before being to the local county courthouse for arraignment. The court- transported to a processing unit of a National Park Police house’s operating hours may be extended during the event, substation. although it is possible, if you are arrested over a weekend, for Once at this facility, a routine booking procedure will be con- example, that you will not be arraigned until normal business ducted in which you will be fingerprinted, your photograph will hours. be taken, and your identity will be verified. Again, you should Arrestees may receive video advisements in groups concern- cooperate in giving your name, address and other basic iden- ing the maximum penalties and bond setting procedures. Then tifying information, but remember that other statements you each arrestee will appear before a judge individually. You have make can and will be used against you in later proceedings. the right to have an attorney represent you at arraignment. If Phones may be available for your use once your processing is you are an independent journalist or your organization is unable complete, but you may not be permitted to meet in person with to provide an attorney, you may call the Reporters Committee an attorney there. to request a referral to an attorney in your area who can provide Depending on the location of the event, there are a number of assistance in connection with your arraignment. possibilities as to what will happen next: At the arraignment, you will enter a plea. If you plead not • If you do not have proof of your identity or refuse to provide guilty, it is in your best interest to file a written demand for jury it, you may be transported to the local jail and detained until trial, and pay any required fee for such, within 20 days after your identity is determined. This could substantially delay your the plea is entered. (Indigent arrestees may be able to obtain release, so be sure to carry your government-issued I.D. card a waiver of the fee). If you decide later that you wish to have at all times. a trial by the judge instead of a jury, you may do so and may • If you have provided proof of your identity and indicate receive a refund of the fee. Securing the right at the outset, you are able and willing to post the required bond to ensure however, is important from a negotiation standpoint, among your later appearance in court, after your identity is verified other reasons. and you clear a criminal history check, you may be taken to After you enter your plea during arraignment, you likely will the jail where you will post your bond, receive a date for future then be taken to the government holding facility to retrieve court appearance and be released. Again depending on the your property before you are transferred to the jail where you location, municipal offenses with which reporters likely would will either pay the required bond to secure your immediate be charged could carry a bond ranging from about $150 up to release, or be held pending trial. nearly $600. You should therefore carry with you, at all times, You can reach the Reporters Committee 24/7 legal defense a minimum of $150 in cash as well as a credit card, or as much hotline at 1-800-336-4243. u

Winter 2012: Police, Protesters and the Press 9 refusing to grant interviews to this jour- differ from that of the arresting offi- Privacy Protection Act of 1980 makes nalist only, to ordering staff members to cer, but what is recorded by a camera is it “unlawful for a government officer or decline to provide materials requested by objective evidence of what took place,” employee . . . to search for or seize any the reporter, to, in the extreme example of Martin wrote in a recent newsletter of work product materials possessed by a the Maryland sheriff deputies, confiscat- the North Carolina Press Association, person reasonably believed to have a ing publications to prohibit community which she represents. “A partial record- purpose to disseminate to the public a members from reading the material. ing that remained after law enforce- newspaper, book, broadcast or other simi- An assessment of whether these acts ment attempted to erase a recording was lar form of public communication.” The amount to an unconstitutional interfer- enough information to prompt the First statute applies to all searches and seizures ence with the journalist’s of all types of journalists in First Amendment rights is a any situation. difficult one that will likely Contrary to many authori- turn on the ability, or lack ties’ understanding, federal thereof, to prove that the law requires officials (includ- officials acted with retalia- ing police) to obtain a sub- tory motives, Kissinger said. poena — not simply a search As such, journalists who warrant — in order to gather suspect they are being tar- evidence, including film, geted for their publishing notebooks and recordings of or newsgathering activities all types, from a newsroom should be able to identify or from a journalist. When specific examples indicat- authorities fail to do so, jour- ing this ill will. These can nalists may file a civil lawsuit include statements the under the Privacy Protection official made directly to Act, which mandates a mini- the reporter or others or a mum $1,000 damages award timeline establishing that to journalists who prevail on the official’s acts followed their claim. or somehow otherwise There have been several corresponded to particular cases nationwide where offi- newsgathering or reporting cials unlawfully searched activities. newsrooms either because AP PHOTO Amanda Martin, a North Police arrest a protester during an they were ignorant of the Carolina media attorney, march and protest in Chicago in October 2011. laws or because they chose to likewise emphasized the ignore them. In April 2010, importance of accurately documenting Circuit (in Iacobucci v. Boulter) to write, ‘A officials executed a search warrant on the encounters with the police, noting that police officer is not a law unto himself; he newsroom of the student paper at James “minor, isolated incidents are not likely cannot give an order that has no colorable Madison University in Harrisonburg, Va., to trigger liability on behalf of the law legal basis and then arrest a person who and confiscated hundreds of photographs enforcement agency, but repeated or defies it.’” of a campus event that the editor-in- egregious violations can.” Agathocleous agreed, saying the case chief refused to hand over. The students Martin represented a freelance photog- of the “Democracy Now!” journalists obtained a $10,000 settlement award from rapher in Durham, N.C., who in 2007 provides a compelling example of how the local prosecutor after filing a civil sued the city’s police chief and a captain important contemporaneous audio and rights suit. for allegedly violating his civil rights on video footage of an arrest can be in a law- A 2011 Pennsylvania case indicates that several occasions dating back 15 years. suit alleging that the detention was unlaw- the problem may extend to the judiciary as The suit alleged that Julian Harrison, ful. Reporters involved in encounters well. Senior District Judge Andrew Bari- while working as a journalist, had been with police should obtain as much docu- lla in Wilkes-Barre authorized a search “harassed, assaulted, battered, unjustifi- mentary evidence as they can, including warrant on local TV station WNEP that ably arrested and falsely charged with arrest, incident and other reports, he said. authorities attempted to carry out in crimes,” detailing seven separate arrests. These journalists should also take great search of unedited, unaired video foot- All charges against Harrison, which efforts to identify, preferably by name age of a fatal house fire, according to The included trespassing and interference but at a minimum by badge number, the (Wilkes-Barre) Times Leader. with investigation, were eventually dis- officers involved in the event. The more When WNEP employees turned offi- missed. The defendants settled the case identifying information a reporter is able cers away, Judge Tina Polachek Gartley for $11,500, according to court docu- to ascertain, the easier it is to narrow the ordered the station to hand over the video ments. large field of officers assigned to work footage. However, WNEP challenged the Martin advised that journalists who public events to those who may have acted order, arguing the footage was protected are arrested should do what they can to unlawfully in doing so. under the state’s shield law, and the judge document events as they occur, including rescinded her order. keeping detailed written notes and asking Other remedies Despite the reversal, newspaper reports another reporter on the scene to record In addition to the Constitution, federal indicated that Polachek Gartley ques- what transpires. law prohibits the police from confiscating tioned WNEP’s “authority” to refuse a “Months later, your recollection may journalists’ newsgathering materials. The search after a judge signed a valid war-

10 The Reporters Committee for Freedom of the Press rant. There was no mention of authori- ing suing under them should always keep A potential plaintiff has two years ties’ need for a subpoena. track of the specific deadline, he added. from the time the claim arose to file the State statutes may also provide another Finally, the Federal Tort Claims Act administrative claim with the appropri- remedy, Agathocleous said, noting that allows journalists and others to sue fed- ate federal agency. Once the claim is his clients, in addition to the constitu- eral officers for damages for wrongs that submitted, the agency has six months tional violations, alleged that officers at resulted from an intentional act on the to rule on it. In some cases, the agency the Republican National Convention also part of the defendant, such as an assault may acknowledge that the claim is valid were liable for false arrest, assault, negli- or battery, Agathocleous said. Before a and agree to pay the individual some gence, negligent supervision and training plaintiff can bring such a cause of action, or all of the money damages he or she and battery under Minnesota law. however, he or she must first file a claim demanded, obviating the need to go to Agathocleous pointed out, however, that with the federal agency responsible court. If an agency rejects the claim or rights under many state laws are deemed for the alleged misconduct. While this refuses to pay all the money damages waived when a plaintiff fails to bring suit claim is being reviewed by the agency, it demanded, however, the claimant has for violation of the right within a certain is referred to as an administrative claim. six months from the date on which the amount of time after the occurrence of Although not required, the easiest way decision was mailed to file a lawsuit. A the event at issue. Depending on the par- to prepare an administrative claim is to downloadable copy of an SF 95 is avail- ticular law and state, these time limits are use the federal government’s standard able on the U.S. Department of Justice’s fairly generous and usually range from claim form, known as a Standard Form web site at http://www.justice.gov/civil/ one to two years, but journalists consider- 95 or SF 95. docs_forms/SF-95.pdf. u

to the three journalists and a commitment from St. Paul police A way forward to undertake additional training and possibly new policies. The By Kirsten Berg Reporters Committee has helped prepare materials for the During the cold winter months, the issue of police-press training presentations, although many of the details of this have relations while covering the Occupy protests quieted some- yet to be fleshed out, according to Azmy. what. Cities have quietly dropped charges against some The case highlights that reporters have rights when covering journalists, though others still await trail for alleged offenses. police activities, and at a time when there seems to be a nation- In some incidents across the U.S., journalists have contem- wide problem with police officers not distinguishing between plated legal action, but thus far no concrete challenge has members of the public and the press, it is an important mes- seen its day in court. sage to law enforcement personnel who may have never been That is not to say that the issue is dormant for police informed about these issues, he said. departments and journalists. In New York, for example, the “I think about an officer who in one of the depositions said outcry of media condemnation of the treatment of report- that he arrested [one of the journalists] because she crossed the ers during the November raid led to some changes in the threshold of what they thought was okay. It was very reveal- department, though it is yet to be seen if these are effective ing. Part of the democratic process is that police shouldn’t think or simply artificial moves by the administration. they can give orders when they feel like a journalist is simply Organizations such as the NYCLU and New York Press being intrusive or annoying,” he said. Club are also contemplating taking legislative, legal or other It was no coincidence, he added, that the journalists and their action to remedy the problems that the media has faced, but lawyers first announced the Minnesota-based federal settlement representatives said they are waiting to see how the situation at a press conference next to the Occupy Wall Street encamp- progresses and to gauge support for such moves. ment in New York City in October: They wanted to send a clear And they are not completely without recent precedent. message to the nation that the rights of dissenters and of the Just this October, three Democracy Now! journalists arrested journalists who cover them are protected. during the protests surrounding the 2008 Republican In the same way that the protestor seemed to define many news National Convention in Minneapolis-St. Paul announced a stories in 2011, the new year seems poised to be another year settlement over what they claimed were unlawful arrests as with public protest in full force. And with an enduring occupy they were trying to cover a protest. movement and a level of public frustration that could channel Although charges were eventually dropped, but the jour- into the massive demonstrations expected outside this summer’s nalists eventually sued the police deparcotments and Secret national political conventions, it is inevitable that police will Service for violations of their first amendment rights to have to continue to deal with the protestors and the press. gather information, unlawful search and seizure, false arrest, The question remains, however, if the peppered but tangible assault and negligence of the officers and their supervisors. trend of strained police-press relations will continue into the The St. Paul police, in explaining theirs and many other new year. reporter arrests made that day at a press conference while Azmy says that for him, protecting the press in these situations the convention was still going on, said that police officers means fighting on more than one front of the First Amendment. were unable to make “fine distinctions” between reporters “We’ve been interested in protecting First Amendment rights, and other members of the public and that the fact that just and we know that you cannot meaningfully protect the rights of because someone is a journalist did not “give them additional dissenters and advocates for social change, the protestors, if you rights to commit any crimes.” don’t also advocate for the rights of the journalists who cover Their suit was eventually settled after the evidence gath- these demonstrations,” he said. “Whether or not law enforce- ering in the case was completed, but before the case went ment is on our side on this, it is critical for democracies for before a judge at trial, with $100,000 total in compensation these protests to be heard and covered.” u

Winter 2012: Police, Protesters and the Press 11 News Media and the Law file photo No fly zone Unjustified temporary flight restrictions ground journalists

By Andrea Papagianis people both on the ground and in the air instances, it should not be difficult for the Local and state police vehicles swarmed from any harm. FAA to demand, and for law enforcement around a suburban apartment com- Under the Code of Federal Regula- to provide, a clear explanation for why plex — 50 miles northwest of Boston tions, each TFR must provide a hazard or the restrictions are warranted,” Stephen — as authorities geared up for what was condition as to why these restrictive mea- Yuhan, legal counsel for Hearst, said in believed to be a standoff with a shooting sures are being implemented. But recent the letter. suspect. Early that morning a 27-year-old flight restriction approvals have raised the According to the FAA, local law enforce- man was found bleeding from a gunshot question as to whether the FAA is allow- ment must establish a threat to aviation in wound outside an apartment complex, ing local law enforcement to place overly the area covered by the flight restrictions triggering a heavily armed search for the restrictive measures limiting the scope of or from aircraft operating in the area pos- gunman. helicopter newsgathering without provid- ing threats to people or situations on the As authorities searched for the armed ing sufficient reason. ground. An example of a threat to people suspect Massachusetts State Police In the Fitchburg incident, the stated rea- or situations on the ground might be a requested media outlets to voluntarily son in the FAA-issued Notice to Airmen crime scene in which low-flying aircraft “refrain from filming live shots from the — commonly called a NOTAM — failed could scatter evidence or a fire that could airspace above the Fitchburg scene.” to specify any hazard or condition for be worsened by the helicopter rotors. “The State Police are asking you to limiting the airspace. The given reason If no credible threat exists to people in NOT FILM LIVE shot above the scene,” was “temporary flight restrictions,” reaf- the air or on the ground, TFR requests wrote police spokesman David Procopio firming what was already known, but not are denied, the FAA said. While they in an email to members of the news elaborating further. try to refrain from limiting airspace, media. “We are making this request in the In response to the TFR imposition, the an FAA spokesman said officials grant- interest of tactical, operational, and offi- Hearst Corporation, which owns WCVB- ing restrictions generally do not ask law cer security reasons. Your compliance is TV in Boston, sent a letter to FAA officials enforcement elaborate details about their appreciated.” calling attention to what they considered requests, but rather use personal judg- But news organizations had the right to to be “serious deficiencies in the FAA’s ment on individual cases as they arise. film above the scene up until the point practices relating to TFRs.” According federal restrictions were handed down. to the letter, “these deficiencies” led the Unjustified restrictions The Federal Aviation Administration FAA to execute “overly restrictive, base- On Oct. 18, the search for 11-year-old issued flight restrictions — at the request less TFRs at the request of State Police.” William McQuain came to an end. of local law enforcement — curbing the The letter cited other similar situations After a six day search, authorities discov- aerial view of the events. in which the media organization felt that ered the body of a young black male in a These restrictions, called Temporary TFRs were improperly approved. wooded area on the outskirts of Clarks- Flight Restrictions (TFRs), are measures “WCVB recognizes that there may be burg, Md. — about 35 miles northwest of administered by the FAA to limit certain certain limited circumstances justifying a Washington D.C. aircraft from operating within a desig- TFR, where the very presence of aircraft Regional media outlets flocked to the nated area over a specified period of time. in the vicinity of law enforcement activity town as local authorities and volunteers, Technically, TFRs are issued to protect may pose a danger to others. In those rare clinging to the hope of finding McQuain

12 The Reporters Committee for Freedom of the Press alive, combed the area where he was last secure airspace over the areas visited and world to determine what was going on out seen. But in the end, the young boy’s traveled by the president. These security there,” Jackson said. “Nobody knew how remains were found with the baseball bat measures extend to the vice president and bad it was going to be.” authorities believed was used in his attack. other high profile public figures. After hearing reports of tarballs — dark Almost a week before McQuain’s body When events create a high level of pub- pieces of crude oil — washing ashore, was found, the boy’s mother was found lic interest — such as the Super Bowl and Jackson made the two hour drive south brutally beaten and stabbed to death in World Series — airspace will be closed. from New Orleans to Grand Isle, La., the home she shared with her young son. Standard flight restrictions are also imple- where he met a posted guard securing That morning the Montgom- access to the beach. As more journal- ery County Police Department ists arrived that day, each was allowed requested a temporary flight access to the beach — but only in restriction for a five mile radius about 10 minute shifts. What should surrounding the area where the have been a simple photo shoot 11-year-old was found. The FAA turned into an ordeal with authori- granted the request and the speci- ties that only escalated as conditions fied airspace was closed. of the spill worsened. Depending on the severity of an “It’s hard enough sometimes to do event or the security need, flight journalism and to be held back at arm’s restrictions can be issued in as little length where you can’t see; it had kind as 20 minutes, according to the of a strangle hold effect on the journal- FAA. There is no standard timeline. ism that we could do,” Jackson said. On the morning McQuain was Because there was no way of know- found, the issued notice stated the ing where or if the oil would reach reason for closing airspace around land, Jackson took to the sky. When the crime scene was “to provide a AP Photo by Lynne Sladky he chartered a plane to fly over the safe environment for law enforce- A spokesperson for Customs and Border Protection, left, coast, the event became even more ment activity.” Pilots are expected holds a map showing a Temporary Flight Restriction. difficult to cover when it was not to check the alert system before clear who was in charge. each flight. mented in the area surrounding aerial per- Jackson thought BP might have been But news organizations in the area did not formances and all space flight operations. in charge since journalists were not only believe law enforcement provided a valid According to Kirby, the Radio Televi- dealing with local and federal authorities, reason for limiting access to news aircraft. sion Digital News Association plans to but with BP officials as well. “The fear is that these law enforcement work with the FAA, local law enforcement The day Jackson chartered a flight, the agencies — who taxpayers are paying for and media organizations to ensure there aircraft could not descend below 3,000 — simply do not want to be observed as is an appropriate issuing process in place, feet. Jackson said even with his longest opposed to offering any justifiable reason- so the interests of law enforcement are lens you could not tell if there was a human ing for cutting off access,” said Kathleen equally weighed with media interests. being on a boat from that height. In hopes Kirby, legal counsel for the Radio Tele- of getting closer to the disaster, Southern vision Digital News Association. “As a Gulf oil spill and TFRs Seaplane owner Lyle Panepinto requested matter of public policy there’s a right to By land, sea and air, journalists struggle to fly at a lower altitude, but when author- gather the news and, absent any counter- to gain access. ities questioned who was on the plane, the vailing interests that law enforcement has, Ted Jackson gripped his camera as the request was immediately denied when he that right should be upheld,” Kirby said. tailgate of the U.S. Coast Guard plane answered that he was with a photographer Numerous entities can request TFRs, opened over the oil streaked Gulf of from The Times-Picayune in New Orleans. such as military commands, intelligence Mexico. Shooting down the belly of the “This was our coast, these were public agencies, local law enforcement, gover- plane he glanced to see his photos, as luck beaches, Louisiana wetlands and we felt nors, and major event organizers. Law would have it, Jackson said he got his shot that we had a right to be able to see that,” enforcement officials making airspace — this time at least. Jackson said. “We felt like, especially with closure inquiries can contact both local On April 20, 2010 — about 50 miles a foreign company, that BP was calling all and national air traffic facilities to request off the Louisiana coast — an explosion the shots.” a temporary flight restriction, which are aboard the Deepwater Horizon offshore After complaints emerged, the FAA then approved at the national level. oil rig killed 11 workers. After burning for revised fight restrictions over the gulf, For the most part, safety and security 36 hours the rig — registered to British allowing fly-overs on a case-by-case basis. reasons are cited when issuing flight Petroleum — sank into the ocean, spilling Eventually authorities coordinated boat restrictions. Circumstances under which millions of gallons of oil into the Gulf of and plane media tours operated by the airspace may be closed vary and may Mexico and quickly becoming one of the Coast Guard. include a chemical plant explosion or a greatest environment disasters in United As Jackson described it, the tours felt, volcanic eruption, when toxic gases or States history. “almost like a ride at Disney World where fumes are on the ground or in the air. The From the initial explosion to cleanup you get in and are assigned a seat and you FAA also approves such restrictions after efforts, access to journalists was limited are asked not to move around too much.” natural disasters when rescue and relief Jackson, a photographer with The Times- But Jackson said he didn’t have much of efforts are being executed by other aircraft. Picayune, fought for access every step of a choice in the matter — while the situa- Widespread flight restrictions are the way. tion wasn’t ideal for reporting, “at least it implemented during presidential travel to “We were certainly the eyes for the was access,” he said. u

Winter 2012: Police, Protesters and the Press 13 The right to record in the wrong places Documenting police arrests with smart phones increases — with consequences

By Chris Healy At the 2010 Preakness Stakes horse race in Baltimore, a young woman in a yellow dress is held on the ground by uniformed Baltimore City police officers. She is bleeding profusely from her face. Several police officers push her into a prone posi- tion and place her arms behind her back. She is intoxicated, and apparently had gotten into an altercation with another man attending the race. Police intervened to break it up, but a large crowd is watch- ing and some people are expressing alarm at what they believe to be an excessive use of force. “Is that really fucking neces- sary?” a voice off camera asks a police officer. The response: “Do me a favor and take a walk. Now. Do me a favor and turn that AP Photo by Greg Payan off. It’s illegal to videotape (Top) Partiers watch the race from inside the track of the 2010 Preakness anybody’s voice or anything horse race at Pimlico Race Course in Baltimore. else. It’s against the law in the (Left) Chris Sharp and his son, Josh. state of Maryland.” The video ends abruptly. erage service at the track. He knows that to only be able to call 911. A growing number of citizen activists, it can get rowdy, and that there is always a “That was the last thing I was going to lawyers and journalists are questioning large police presence at the race. In 2010, do at that point,” Sharp said. the constitutionality of laws and policies he was a spectator. that prohibit people from recording the When the police intervened in the The ongoing cases actions of police officers and public offi- altercation, Sharp started to record it. Whether the First Amendment creates cials engaged in their public duties. Three He knew his friend was intoxicated, and a right to take audio recordings of public high-profile cases involving this issue are that she was not dealing with the police officials, performing their public duties pending before courts across the country. in the best way possible. Nonetheless, he in public places, is a question front and The Preakness video was posted to You- thought the situation might be getting out center in three major pending cases. Two Tube by an individual believed to have of hand. Without interfering or otherwise cases — ACLU of Illinois v. Alvarez and been an off-duty Maryland State Trooper, getting involved, Sharp decided to record Illinois v. Allison — involve challenges to according to attorney Deborah Jeon of the arrest. Passersby asked if he’d gotten the state of Illinois’ eavesdropping law, the American Civil Liberties Union in it. “Yeah I got it. I got it all,” he replied. one of the most limiting of recording in Maryland. She says it depicts the same Sharp says several officers ordered him the country. The third, Sharp’s case, is a incident that her client Christopher to turn over his phone, and several times civil rights lawsuit asking for damages and Sharp recorded on his cell phone. The he nervously but respectfully refused, policy changes at the Baltimore Police woman in the video was an acquaintance believing that he was under no obligation Department. of Sharp’s, as was another man who is seen to do so. He was not arrested, nor directly In all three cases, the extent to which the being arrested. threatened with arrest, but Sharp main- First Amendment creates a right to audio- Sharp’s recording, however, no longer tains that he felt extremely intimidated. record these public officials is a central exists. Police officers seized the cell phone When an officer who identified himself question. And all three take place against and deleted the videos, along with more as a sergeant told him they would need the backdrop of Glik v. Cunniffe, a deci- than 20 others he had taken of his then- to take the phone and download the vid- sion from August of last year in which the six-year-old son’s soccer and basketball eos to a laptop “for evidence,” and then U.S. Court of Appeals in Boston (1st Cir.) games, according to a lawsuit Sharp filed return the phone, Sharp complied. While recognized that the First Amendment against the Baltimore Police Department. he waited for his phone to be returned, protects the right to record. Sharp is well familiar with the Preakness Sharp says another officer told him In Glik, the court wrote that the First Stakes, a major horse race that is part of “they’ll probably just erase it and give it Amendment creates a broad prohibition the Triple Crown and is a notorious party back.” on government attempting to restrict event in Baltimore. He has attended the Indeed, all the videos on his phone — the “stock of public information.” This race many times, both as a spectator and those of the arrest, and the videos of his includes a right to gather information on as a former manager of the food and bev- son — were deleted, and his phone was set how police officers perform their public

14 The Reporters Committee for Freedom of the Press duties by recording them, the court held. Alvarez, which was argued before the the eavesdropping law, read it aloud, and Indeed, prominent in the court’s opin- U.S. Court of Appeals in Chicago (7th had him arrested on the spot. He faces ion was the recognition that the prolifera- Cir.) in September, is a pre-enforcement five felony counts. tion of recording equipment on portable challenge brought by the ACLU. That In September, Judge David Frankland devices like cell phones has changed the means that nobody in the case was actu- found the law unconstitutional. Because media landscape. “News stories are now ally arrested for violating the law. Rather, of that, the case has skipped the interme- just as likely to be broken by a blogger the ACLU alleges that they have chosen diate appellate court and is now before the at her computer as a reporter at a major state Supreme Court. newspaper,” the court wrote. Robert Corn-Revere, a partner at Davis Justice weighs in Wright Tremaine in Washington, D.C. Christopher Sharp may have in who has worked extensively on First high places. On Jan. 10, the Department Amendment and media law issues, agrees of Justice filed a statement of interest in that changing technology could influence his case, arguing that Sharp was protected how a court views these issues. “[Eaves- by the First and Fourth Amendments. dropping laws] risk the possibility of mak- The right to record police officers, the ing all citizens criminals.” department said, is “consistent with our Jim Covington, Director of Legislative fundamental notions of liberty, promote[s] Affairs for the Illinois State Bar Asso- the accountability of our governmental ciation, believes that recording devices officers, and instill[s] public confidence allow greater accuracy in settling disputes in the police officers who serve us daily.” between police and citizens. “[Recordings The department declined to comment for provide] an instant replay of what really this article. happened” in interactions with police, he For the United States to take such an said. unequivocally pro-speech position on this The three current cases share parallels issue is unusual. Jeon said that Sharp’s with Glik. That case involved a young case is the first time that Justice has taken man who was walking on Boston Com- an official stance on the right to record. mon when he saw police using excessive She believes that the department has been force in an arrest. He began to record the watching this issue percolate in various arrest on his phone. When confronted courts across the country for some time, by the police and asked whether he was AP Photo by Paul Beaty and chose to become involved in Sharp’s recording audio — which he was — Glik Chicago Police Superintendent Garry McCarthy case partly because Sharp’s case has just was arrested and charged with violating opposes the Illinois eavesdropping law that bars begun, and the department could get the Massachusetts wiretapping law. The recording police in public. involved early. charges were eventually dismissed as base- The department’s actions could have an less because to violate the law, the record- not to record certain public events out of impact on the Illinois cases. Sunderman ing had to have been made in secret, fear that they would be arrested. called it the “cherry on top” of what he and all parties agreed that Glik recorded In Allison, by contrast, a man was believes to be his strong legal position. openly. Glik filed a civil rights lawsuit, and arrested, and faces serious jail time. “The Illinois Supreme Court could find the First Circuit affirmed that his conduct Michael Allison is a hobbyist mechanic the department’s position interesting and was constitutionally protected. who had been cited under an Oblong, Ill., persuasive.” Unlike Glik, Sharp was never arrested city ordinance for keeping an abandoned And while such a clear statement of sup- or charged with violating the Maryland vehicle on his property. In the course of port for speech rights may be rare, it is wel- wiretapping statute, and Jeon maintains trying to sort out this citation, Allison come. “I have to applaud the government that his actions were legal. But as in Glik, allegedly violated the eavesdropping law anytime it stands up for constitutional Sharp’s case is a civil rights lawsuit against by recording a police officer, the Oblong rights,” Corn-Revere said. the department. He is seeking clarity of Chief of Police, the clerk of the court Jim Covington concurs. “You want to be the law through a declaratory judgment for Crawford County, two Oblong city proud of your government from time to that his actions were protected. attorneys, and Crawford County Judge time.” The Illinois cases, by contrast, are direct Kimbara Harrell, according to a lower constitutional challenges to that state’s court opinion striking the law as uncon- Efforts at reform in the Illinois eavesdropping law. The law makes it a stitutional. General Assembly crime to audio record any conversation Indeed, Allison had been told that no The battle in Illinois over the eaves- without the consent of all parties recorded. court reporter would be present to create dropping law has not been limited to There is no exception for recording police a transcript at his citation hearing, and the courts. Covington has worked exten- officers in public performing their public because of that had told the clerk of the sively on getting the General Assembly duties. court he would bring a recorder, accord- to reform the law. He said that the cases In fact, recording police officers is pun- ing to William Sunderman, who repre- pending in the Illinois courts have has- ished more severely than recording other sents Allison. Sunderman says that the tened the calls for reform. “But for the parties. The statute makes it a class 1 judge asked Allison at the hearing whether cases, the effort wouldn’t have the legs felony to record a police officer, state’s he was recording. When Allison answered that it does,” he said. attorney, or judge, while any other viola- that he was, Judge Barney Harrell turned House Bill 3944, whose chief sponsor tion is a less serious class 4 felony. to a code book which was already open to is Rep. Elaine Nekritz, would create an

Winter 2012: Police, Protesters and the Press 15 exemption to the law allowing citizens to record police officers performing public duties in a public place. Notably, the bill Woman faced 15 years for recording police would not apply to all public officials, but solely to police officers, she said. By Chris Healy plaint. She alleges that after she tried Support for reform has come from at The two cases currently on appeal to report the misconduct and was least one unexpected place. At a panel dis- in the Illinois Supreme Court and rebuffed by two officers, she was told cussion on police recording at the Loyola the U.S. Court of Appeals (7th Cir.) to go into a small interview room and University Chicago, which included are not the only ones involving the that she could not leave. Believing Reporters Committee for Freedom of the Illinois eavesdropping law. In Janu- that this detention was illegal, Moore Press Executive Director Lucy Dalglish, ary, Tiawanda Moore filed a lawsuit began to record the conversation with Chicago Police Superintendent Garry in federal court against the city of the officers on her Blackberry. McCarthy expressed his belief that record- Chicago, alleging that officers vio- When they realized that she was ings protect both police and citizens. “I lated her Fourth Amendment rights recording them, the officers arrested actually am a person who endorses video when they arrested her for recording her. She faced 15 years in prison, but and audio recording,” McCarthy was two police officers who she said were in August, a jury found her not guilty. reported saying by the Chicago Sun-Times. interfering with her attempts to file a Johnson says that the pending bill to “There’s no arguments when you can look complaint. reform the law would likely not have at a videotape and see what happened.” “The law is designed to protect cor- influenced Moore’s case, as the record- On Feb. 8, the Civil Law Committee of ruption and is not in the public inter- ing she made was not in a public place the House of Representatives Judiciary I est,” said Robert Johnson, Moore’s but in a closed interview room in the Committee approved H.B. 3944 by a 9-2 attorney. police station. He also said that Allison vote. The Reporters Committee submit- In July 2010, police officers responded and Alvarez likely would have little ted written testimony in support of the to a call from Moore’s boyfriend impact on her case because she is no bill. The bill will now proceed to the full regarding a domestic dispute at their longer facing prosecution. House of Representatives. house. One of the officers, in the The potential 15-year sentence for The principal objections to the bill course of interviewing Moore, groped recording police officers is extreme, raised during debate related to individu- her, according to Moore’s complaint. Johnson says. “You could sell crack als interfering with police investigations, Soon thereafter, Moore went to the cocaine on the streets of Chicago and Nekritz said, though doing so would police department to report her com- not be looking at that kind of time.” u remain a crime. Covington said that their efforts should not be viewed as anti-police, but anti-bad law. He says that the bill would cure a double standard in the law allowing police to record citizens, but not vice versa. Cases and statutes cited in this guide Am. Civil Liberties Union of Ill. v. Alvarez, No. 10 C 5235, 2011 WL 66030 (N.D. The damage has been done Ill. Jan. 10, 2011), appeal docketed, No. 11-1286 (7th Cir. Feb. 4, 2011) With the support of the United States Berglund v. City of Maplewood, Minn., 173 F. Supp. 2d 935 (D. Minn. 2001) government in his lawsuit, Chris Sharp and his legal team are optimistic. Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) At a hearing on Feb. 13, a federal judge Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) denied the Baltimore Police Department’s Iacobucci v. Boulter, 193 F.3d 14 (1st Cir. 1999) motion to dismiss. Jean said that the , No. 2009-CF-50 (Ill. Cir. Ct. Crawford County Sept. 15, 2011), department conceded a the hearing that Illinois v. Allison appeal docketed, No. 113221 (Ill.) the First Amendment creates a right to record. The case will not move forward to Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010) discovery, she said. Moore v. City of Chi., No. 1:12-cv-00238 (N.D. Ill. filed Jan. 12, 2012) But for Sharp, some of the worst dam- Rossignol v. Voorhaar, 321 F. Supp. 2d 642 (D. Md. 2004) age cannot be easily rectified by winning the suit. Despite his best efforts, Sharp has Sharp v. Baltimore Police Dep’t, No. 1:11-cv-02888 (D. Md., U.S. Dep’t of Justice been unable to recover the lost videos of Statement of Interest filed Oct. 11, 2011) his son. “My son is my life,” Sharp says, and the videos represented 18 months of Civil action for deprivation of rights, 42 U.S.C. § 1983 (2012) memories that he cannot get back. Fed. Aviation Admin., Temporary Flight Restrictions in the Vicinity of Disaster/ Less tangible, but no less permanent, is Hazard Areas, 14 C.F.R. § 91.137 (2012) the damage done to Sharp’s perception of law enforcement. “I was reared to trust the Federal Tort Claims Act, 28 U.S.C. § 1346(b) (2012) police,” Sharp says. “They have a difficult H.B. 3944, 97th Gen. Assem., Reg. Sess. (Ill. 2012) job.” His faith may not have been shaken Illinois Eavesdropping Act, 720 Ill. Comp. Stat. 5/14 (2008) had his experience reflected “one or two Jerry Nelson, A Day in Jail for a Photojournalist, Huff Post DC, Feb. 8, 2012, bad seeds,” but the fact that all of the offi- http://www.huffingtonpost.com/jerry-nelson/a-day-in-jail-for-a-photo_b_1261311.html cers on the scene seemed to collaborate together has damaged — perhaps irrepa- Privacy Protection Act of 1980, 42 U.S.C. § 2000aa et seq. (2012) rably so — Sharp’s view of the police. u 16 The Reporters Committee for Freedom of the Press