December 18th, 2014

Police Intimidation Watch: Photographer Wins $1.1 Million for Malicious Prosecution

A New York woman who was arrested and jailed for four days after photographing an Air National Guard base from a public thoroughfare was awarded $1.1 million in compensatory damages by a federal jury last week.

Nancy Genovese sued the town of Southampton, New York, the Suffolk County sheriff’s department and several individual officers in 2010, alleging violations of her constitutional rights, assault, battery, false arrest, use of unreasonable and excessive force, and malicious prosecution.

In a trial that concluded December 11, jurors concluded that Suffolk County sheriff’s deputy Robert Carlock had maliciously prosecuted Genovese. But Genovese failed to prove that Carlock had initiated criminal proceedings because of her political associations. Therefore, the jury found that Carlock was not liable for violating Genovese’s First Amendment right of free speech.

Although jurors reached agreement on the $1.1 million award for compensatory damages, they were unable to reach a unanimous decision on punitive damages, so deliberations are continuing.

According to court papers, Genovese was driving home in July, 2009 past the Gabreski Airport Air National Guard base in Suffolk County (Long Island) when she stopped her car to photograph a helicopter on display in front of the base. Genovese made the photograph from inside her car, intending to post the photo on a “Support Our Troops” website.

As she was preparing to drive away, a Southampton, New York police officer approached her and asked what she was doing. Genovese explained what she was photographing, tried to show the officer the images on her camera’s LCD, and then ended up giving the officer her camera card to protect her camera, which the officer was treating roughly, according to Genovese’s lawsuit.

At that point, the Southampton police officer ordered Genovese to remain where she was, and called the county sheriff’s department to report Genovese’s presence outside the base, “falsely and wrongly informing” the sheriff’s department that Genovese “posed a terrorist threat,” she said in her claim.

Authorities from the FBI, Homeland Security, the ANG base, and the local police and sheriff’s department rushed to the scene. Genovese was questioned on the roadside for “five or six hours.” She alleged that her car was searched without her consent, and because she had just come from a local shooting range, authorities found an AR 15 rifle, as well as a shotgun and ammunition, in her car. Southampton police seized the guns, which were legally registered, according to court papers.

According to the suit, Suffolk sheriff’s deputy Carlock said to Genovese, “You’re a right winger, aren’t you?” He and another unidentified officer proceeded to taunt Genovese, repeatedly referring to her as a “right winger” and “tea bagger” and allegedly threatening to arrest her for terrorism “to make an example of her to other ‘tea baggers.’”

After hours of questioning, federal authorities concluded that Genovese wasn’t a security threat. After they left the scene, however, an unidentified sheriff’s deputy handcuffed Genovese, and transported her to jail, where Carlock allegedly told her that although authorities “had nothing to charge her with,” they would “find something in order to teach all right wingers and tea baggers a lesson.”

She was charged later that night with “terrorism,” and arraigned the next day on criminal trespass charges. Bail was set at $50,000 because of sheriff’s “inflammatory accusations” that she was a terrorist and a flight risk, she alleges in her lawsuit.

Genovese spent four days in the county jail, until she was finally able to raise the money for her bail. While in jail, she alleges, deputies continued to taunt her, subject her to sleep deprivation, deny her medical care for a leg injury that became infected, and instigate alarmist media coverage by releasing to reporters false information about Genovese and the circumstances of her arrest.

The criminal trespass charges against Genovese were dismissed in November, 2009. She filed suit on July 29, 2010.

In her lawsuit, she alleged violation of her First Amendment right of free speech, as well as violations of her Fourth and Fourteenth Amendments rights of freedom from unreasonable search and seizure. She also claimed she was subject to fear and terror, humiliation, degradation, physical pain and emotional distress.

In 2013, a federal judge dismissed Genovese’s claims against the town of Southampton and its police officers. The judge ruled that the Southampton police officer who originally stopped Genovese had probable cause to do so; that the officer didn’t use excessive force; and that Southampton police seized a gun in her car “under a lawful exception to the warrant requirement of the Fourth Amendment” because it was in plain view insider her car. Therefore, the court said, Southampton police did not violate her constitutional rights.

The judge also dismissed false arrest claims against Suffolk County sheriffs, on the grounds that they acted on the “probable cause” determination of Southampton police. But the court declined to dismiss Genovese’s malicious prosecution claims against Carlock and the sheriff’s department, clearing the way for the trial, which began December 8 and lasted for three days.

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July 28th, 2014

Photographing Police Is Legal in Texas, Too, Judge Rules in First Amendment Case

A federal court judge in Texas has rejected an argument that the right to photograph or videotape police officers “is not recognized as a constitutional right,” clearing the way for a citizen’s civil rights claim against the City of Austin, its police chief, and various Austin police officers.

“The First Amendment protects the right to videotape police officers in the performance of their official duties, subject to reasonable time, place and manner restrictions,” U.S. Magistrate Judge Mark Lane wrote in the decision handed down last week.

The judge also rejected an argument by the defendants that they should be immune from prosecution in the case because the right to photograph police officers performing their duties was not clearly established when they arrested the plaintiff on three separate occasions.

“A robust consensus of circuit courts of appeals that have addressed this issue have concluded that the First Amendment encompasses a right to record public officials as they perform their official duties,” the judge wrote, citing several right-to-record decisions favorable to plaintiffs from around the country.

The plaintiff in the Texas case, Antonio Buehler, was first arrested on January 1, 2012, when he photographed two Austin police officers engaged in a traffic stop in a parking lot. Buehler was refueling his truck nearby when he heard one of the officers yelling, then saw a passenger of the stopped vehicle being “yanked violently” out of the car and thrown to the ground.

Buehler started taking pictures from a distance, and asked the officers why they were abusing the passenger, according to court papers. One of the officers approached Buehler and arrested him for “resisting arrest, search or transportation” after accusing Buehler of spitting on him, according to court documents.

Buehler filed a complaint with the police, but he alleges that no action was taken. He ended up forming an organization called Peaceful Streets Project to help inform people about their rights “and hold law enforcement accountable.” The organization now routinely video records police officers to prevent and document police brutality, according to court papers.

Buehler was subsequently arrested for recording the arrest of a man in downtown Austin on August 26, 2012. He was arrested a third time about a month later, also for video recording police performing their duties. Both times he was charged with Interference with Public Duties.

In response, Buehler sued for violation of his First and Fourteenth Amendment rights. He also alleged false arrest, excessive force, unlawful search and seizure, and malicious prosecution.

In addition to refusing the city’s motion to throw out Buehler’s federal civil rights claims, Judge Lane sustained his claim for false arrest; his claim that the city and its police chief failed to establish a policy, train, and supervise city police officers about the rights of individuals to record police; and his various state law claims.

But the judge dismissed parts of Buehler’s lawsuit, including claims for malicious prosecution and excessive force, because Buehler’s allegations didn’t meet the legal standards required to sustain those claims.

The ruling was not a final decision on the merits of Buehler’s claims. Instead, it cleared the way for Buehler to continue pursuing the surviving claims.

Related:
PDN Video: A Photographer’s Guide to the First Amendment and Dealing with Police Intimidation

First Amendment Advocate Sues NYPD, NYC Over Right to Record Police Activity
Baltimore to Pay $250K for Videos Deleted by Police: A Vindication for Photographers’ Rights
Police Intimidation Watch: Boston to Pay $170K for Wrongful Arrest of Videographer
NH Town to pay $75K to Settle First Amendment Claim in Traffic Stop Video Case

September 19th, 2013

Police Intimidation Watch: New Haven Police Sued for Arresting Photographer, Erasing iPhone Video

A New Haven man jailed for recording New Haven, Connecticut police arresting three people filed a $500,000 lawsuit suit yesterday against the city and several individual officers for violation of his civil rights.

Luis Luna, a medical interpreter, was jailed in September, 2010 after he came upon police making the arrests, and began recording the incident with his iPhone. At the scene was Assistant Chief Ariel Melendez, who approached Luna, snatched his phone away, and ordered him arrested, according to a report in the New Haven Independent.

Luna’s iPhone was returned when he was released from jail four hours later, but his videos had been erased.

In his court appearance two weeks later, Luna contested the charges of interfering with a police officer. Prosecutors agreed to drop that charge on condition that Luna plead guilty to a charge of “creating a public disturbance,” and pay a $50 fine. Without legal representation to fight the more serious charge, Luna agreed to plead guilty to the lesser charge and pay the fine.

Police internal affairs investigators later issued a report charging the assistant chief who ordered Luna’s arrest and the erasure of the video with “conduct unbecoming an officer.” The investigators said that Luna had acted legally, and that the assistant chief had violated his rights, according to the New Haven Independent.

As a result of the internal affairs report, Luna was able to get his guilty plea for “creating a public disturbance” reversed. Assistant Chief Melendez has since retired, and the New Haven police department also issued a new policy to prevent officers from interfering with the rights of citizen journalists.

In his lawsuit, Luna charged Melendez and the City of New Haven with false arrest, violation of his First Amendment rights, and illegal seizure in violation of his Fourteenth Amendment rights. He is seeking $500,000 in damages and a declaration from the court that it is illegal for the police to arrest anyone for filming them while carrying out their duties in public.

Related:
Department of Justice Warns Police Against Violating Photographers’ Rights
Police Intimidation Watch: Cop Charged with Lying About a Photographer’s Arrest
Police Intimidation Watch: Detroit Police Apologize After Video Shows Them Violating Photographer’s Rights

August 14th, 2012

Police Intimidation Watch: NYPD Returns Cameras to Times Freelancer

The New York City police department has returned camera gear belonging to a freelance photographer who was arrested August 4 after refusing to stop photographing police activity on a public street.

Photographer Robert Stolarik got his camera equipment back on August 10, the National Press Photographers Association reported on its Web site. Stolarik told NPPA, “The next things for me will be getting the charges dropped and having my credentials returned to me.”

Stolarik was charged with obstruction and resisting arrest after police told him to stop taking pictures at the scene of a street altercation. Solarik was on assignment at time for The New York Times. He identified himself to police as a journalist, and continued taking pictures.

He was then arrested and held overnight. NPPA and The New York Times protested Stolarik’s arrest as an act of intimidation–and a violation of his civil rights.

According to NPPA, New York Times attorney George Freeman is calling on the NYPD to “objectively investigate” Stolarik’s arrest. “We are fully confident that if they look at the facts, they will find that the officers who blocked, intimidated and assaulted Mr. Stolarik acted inappropriately and violated NYPD guidelines,” Freeman told NPPA.

Related story:
Police Intimidation Watch: NYPD Arrests Times Freelancer

August 6th, 2012

Police Intimidation Watch: NYPD Arrests Times Freelancer (Update)

A freelance photographer on assignment for The New York Times was arrested in the Bronx on Saturday night, after police got angry at him for refusing to stop taking pictures of another arrest, the Times has reported.

Photographer Robert Stolarik was accompanying two reporters who were conducting street interviews when they came upon a street confrontation. A police officer at the scene reportedly told Stolarik to stop taking pictures. He identified himself as a journalist for The New York Times, and continued taking pictures. A second police officer came along and “slammed” Stolarik’s camera in to his face, according to the Times story.  When the photographer asked police for their badge numbers, they took his cameras, dragged him to the ground, and arrested him.

According to a police report cited by the Times, police said they had ordered the crowd and Stolarik to move back “numerous” times, and that Stolarik “violently resisted being handcuffed.”

Stolarik received scrapes and bruises during his arrest, but was otherwise uninjured, according to the Times. He was released after several hours. A court appearance is pending.

A lawyer for the Times said, “This is an incident where it seemed the photographer was doing his job taking photographs, and the police overacted and attempted to intimidate him and block him, leading to his arrest.”

Update: In an interview with New York Magazine, Stolarik says he’s out $20,000 in gear and materials, and that the NYPD’s claims that he hit a police officer with his camera is untrue. Trade associations and a journalism organization have taken up his cause. Read more here.

Related Stories:
Police Intimidation Watch: Deputies Rough Up Nevada News Photographer
Police Intimidation Watch: Mannie Garcia Files $500K Lawsuit for Unlawful Arrest

July 25th, 2012

DC Police Department Issues Order Affirming Photographers’ Rights

To settle a right-to-photograph lawsuit filed by an aspiring photojournalist and the ACLU, the Washington DC Metropolitan Police Department has issued a general order stating that “a bystander has the right under the First Amendment to observe and record [DC police officers] in the public discharge of their duties.”

The order instructs police not to interfere with anyone photographing police activity as long as the photographer is standing in a public setting or private facility where they have the right to be, and as long as they are not interfering with police activity.

The order also reminds police that still and video photography “of places, buildings, structures and events are common and lawful activities.” And it spells out the limited terms and conditions under which police can seize recordings for evidence.

For photographers and civil rights activists fighting what they perceive as a rising tide of police intimidation and interference against photographers nationwide, the order represents progress. It follows closely a blueprint for police policy to protect the rights of photographers that the US Department of Justice issued earlier this year.

The DOJ blueprint was directed at the Baltimore Police Department, which is being sued for unlawfully seizing, searching and deleting the contents of a citizen’s cell phone after he used it to record police officers making an arrest. The Baltimore Police Department subsequently issued an order declaring that citizens had the right to photograph police activity. But the DOJ said the Baltimore order didn’t go far enough to protect photographers’ (and citizens’) rights because it wasn’t specific enough.

The order issued last week by the Washington DC police department follows the DOJ blueprint almost to the letter, spelling out citizens’ constitutional rights, providing explanations and examples of legal activity and limited exceptions.

The lawsuit lodged against DC police was similar to the case in Baltimore. Jerome Vorus, a student and aspiring photojournalist, began photographing a traffic stop in the Georgetown neighborhood of DC in June, 2010. Police officers told him he was not allowed to photograph, and detained him for half an hour. With help from the ACLU, Vorus sued police for violating his rights. Vorus and the ACLU dropped the claim last week after police agreed to issue the order protecting the right of citizens who photograph the police.

The case in Baltimore, meanwhile, is still pending.

Related stories:
Department of Justice Warns Police Agains Violating Photographers’ Rights
Police Intimidation Watch: Mannie Garcia Files $500K Lawsuit for Unlawful Arrest
Police Intimidation Watch: Photographer Sues Long Island Police Department
Police Intimidation Watch: Boston to Pay $170K for Wrongful Arrest of Videographer

July 19th, 2012

Activist Carlos Miller Laughs at Plea Bargain Offer

Give state prosecutors in Miami Dade County, Florida credit for moxie, if not for unintentional Orwellian humor.

Photojournalist and First Amendment activist Carlos Miller, who is facing charges for resisting arrest during a police raid on an Occupy encampment last January 31, says the Miami Dade County prosecutors have offered to drop charges against him–if he agrees to produce a video promoting the county.
(more…)

July 6th, 2012

Police Intimidation Watch: University of California to Pay Photog $162,500 for Wrongful Arrest

A news photographer who claimed wrongful arrest while covering a student protest in 2009 will receive a $162,500 settlement from the University of California, the San Francisco Chronicle has reported. UC Berkeley police will also receive media rights training as part of the settlement.

UC Berkeley police arrested photographer David Morse at the scene of a protest at the home of the University of California chancellor. Police allegedly told Morse they wanted his camera in order to identify protesters who committed acts of vandalism at the scene. They then arrested Morse along with several others on charges of rioting, arson and vandalism.

Police then got a search warrant to access his images, and they published several of them to get public help identifying people in the photos, according to the San Francisco Chronicle report.

Prosecutors declined to pursue the charges against Morse, who then sued the University of California in federal court after UC Berkeley police refused to compensate him for violation of his rights.

Related stories:
Boston to Pay $170K for Wrongful Arrest of Videographer
Mannie Garcia Files $500K Lawsuit for Unlawful Arrest
Department of Justice Warns Police Against Violating Photographers’ Rights

June 14th, 2012

Police Intimidation Watch: Mannie Garcia Files $500K Lawsuit for Unlawful Arrest

Veteran news photographer Mannie Garcia has sued several Montgomery County, Maryland police officers, alleging violation of his civil rights and physical and emotional suffering as a result of being “manhandled” and arrested without cause in June, 2011. Garcia is seeking $500,000 in compensatory damages, plus punitive damages to be determined.

Garcia, who lost his White House Press Pass as a result of his arrest, was confronted by the police officers after he began recording them arresting two Hispanic men on the night of June 16, 2011. The incident occurred in Wheaton, Maryland after Garcia left a restaurant and happened to see police arresting the men.

According to his claim, Garcia became concerned that the police action “might be inappropriate and/or that they might be using excessive force.” Garcia took his camera out and began recording. He was then approached by one of the officers, and identified himself as a member of the press.

Garcia said nothing else, however, but moved further back when a second officer shined a flashlight in his face.

According to Garcia’s lawsuit, the first officer “did not like the fact that Mr. Garcia continued to record their actions with the camera, so he lost his temper, became enraged, screamed, ‘That’s it!’ and placed Mr. Garcia under arrest.”

Garcia alleges that the first officer placed him in a choke hold, dragged him across the street to a police cruiser, and “repeatedly threw Mr. Garcia to the ground” before handcuffing him. He alleges that he sustained injuries to his neck, shoulder and back “while being manhandled” during his arrest.

According to police reports, Garcia was arrested for disorderly conduct. His camera was confiscated at the scene, and Garcia was taken to a police station, where he alleges that he saw one of the officers remove the battery and memory card from his camera. The camera was eventually returned without the memory card.

While he was awaiting trial, the Secret Service became aware of the charges against him and revoked his White House Press Pass. He was unable to work as a result, he says in his lawsuit.

Finally, Garcia came before a judge in a bench trial last December and was found not guilty on all charges against him.

Garcia is suing on the grounds that the Montgomery Count police officers violated his First, Fourth, Eighth, and Fourteenth Amendment rights. The violations included unlawful arrest, false imprisonment, cruel and unusual punishment, malicious prosecution, deprivation of his property without due process, and interference with his right of free speech.

In addition to naming the arresting officers as defendants, Garcia is also suing Montgomery County and its chief of police for failing to properly train police officers–specifically, for failing to train them that openly recording a police officer is a lawful act in Maryland.

Garcia also alleges that the county is indifferent to police misconduct, and that it fails to investigate complaints of misconduct or discipline officers who engage in misconduct. (Garcia says his complaints to the police about misconduct of the officers were ignored.)

Garcia filed his claim in the US District Court for the District of Maryland, Southern Division. (Case 8:12-cv-01711-DKC)

A trial date has not been set.

Related articles:

Police Intimidation Watch: Photog Sues a Long Island Police Department
Police Intimidation Watch: Photographers Cleared of Charges in New York, Seattle
Department of Justice Warns Police Against Violating Photographers’ Rights

May 16th, 2012

Police Intimidation Watch: Photogs Cleared of Charges in New York, Seattle

A student photographer has been cleared in court of disorderly conduct charges stemming from his arrest in New York City at the scene of an Occupy march in January, the Associated Press reports. Separately, prosecutors in Seattle decided to drop charges against a photographer arrested for allegedly assaulting a police officer there during May Day protest, The Seattle Times reports.

Video from the scene of the arrests helped clear the photographers in both cases.

In New York, police accused New York University photography student Alexander Arbuckle of blocking traffic at an Occupy protest march on January 1. He maintained that he was photographing from the sidewalk at the time of his arrest. At trial, the judge dismissed the charges after Arbuckle’s defense attorneys showed a video by another journalist showing police massing near people on the sidewalk, and then arresting them, according to AP.

In the Seattle incident, photographer Joshua Garland was accused of grabbing and twisting the arm of a police officer at a May Day protest in downtown Seattle. The Seattle Times reports that prosecutors decided they couldn’t prove the charges against Garland after his defense attorney showed a video of the incident. According to that same report, the attorney pieced the video together from “video segments posted on YouTube by witnesses and other footage shot by a local television station.”