December 13th, 2012

Ohio Officials Plan to Proceed with Charges against Photojournalism Student Arrested for Photography 37

By Carlos Miller

The photo that got Nicolas Tanner arrested on Halloween night (Photo by Nicolas Tanner).

 

Most of the cases I write about end up getting dismissed without going to trial, but because there are always new cases to write about, I never get around to writing about the actual dismissals.

I’m hoping to implement a feature on this blog by next year to better keep track of these dismissals.

That is why I was surprised to learn today that prosecutors plan to proceed with charges against Nicolas Tanner, the Ohio University photojournalism student arrested on Halloween night for photographing an ambulance scene while standing on a public sidewalk.

The revelation was made in an article published Wednesday in the Athen News in which they interviewed Mickey Osterreicher, general counsel for the National Press Photographers Association.

“This is a problem that we continue to see,” he said. “There are so many people who believe that if they tell somebody to stop taking pictures in public, that there’s an authority to do that, and there isn’t.”

If Tanner was standing on the sidewalk as he claims, taking pictures of something on public view, and not actively interfering with the emergency personnel, Osterreicher said, he had a right to keep doing that.

He added that in many cases like Tanner’s, police simply claim a defendant was interfering with official activities, and leave out the fact that he or she was taking pictures.

“What I find interesting here is, this is one of the first times I’ve seen where they talk about photography,” he said. “The fact that they recognize that he’s taking pictures is interesting.”

He also noted that in his view, whether or not Tanner was on assignment for a news publication – there’s no indication in court documents that he was – is legally irrelevant. Some case law, Osterreicher said, indicates that the rights of the press and those of the public are “co-extensive” as far as taking pictures of public events – in other words, someone not employed as a journalist has no fewer rights in this area than a working reporter.

The attorney acknowledged that right-to-privacy issues might arise in connection with photographing an emergency patient, but added that these would not kick in until the pictures were published somewhere – they would not come into play at the time the pictures were being taken.

Osterreicher noted that both Athens and the state of Ohio have laws against obstructing official business; the state statute, however, includes language not in the city ordinance, stating that nothing in the law “shall be construed to limit access or deny information to any news media representative in the lawful exercise of the news media representative’s duties.” He suggested that with two overlapping laws such as these, the one that’s more restrictive in limiting police powers over free speech should govern.

Tanner has a pre-trial hearing scheduled for January 16.  Read the letter Osterreicher sent to the police chief and mayor here.

 

 


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  • Mark

    This is deeply troubling. What are they afraid of?

  • http://www.facebook.com/RescuNET Ken Ferguson

    Nobody should be above the law. Photography at a crime scene is evidence collection as it can be used later in court. Taking notes in a logbook is also not illegal as logbooks can be entered as evidence. Police want to control the narrative and maintain control over the population. Citizens who wish to take video, photos or notes documenting the actions of police should do so in pairs so there is an eye witness to their side of the encounter. They should also prepare themselves with the correct legal language to use to let the Police know that incorrectly violating someone’s rights under the color of law is illegal. Try this: Photo Journalist 1 (PJ1) stands close enough to the scene to document the scene without interfering with Officials at the scene. PJ2 video documents PJ1 from further away. PJ3 video documents PJ2 and possibly PJ1 from even further away. PJ(n) video documents PJ(n-1) and possibly PJ(n-2) from even further away. Crawl so far up their asses that even a whisper of misconduct results in termination. Without accountability the system will lose credibility and collapse.

    • ExCop-LawStudent

      Photography at a crime scene by police is evidence collection. Photography at a crime scene by others is a protected First Amendment right AND the police have to go through the proper process to obtain copies of the images or videos, normally by subpoena. See 43 U.S.C. 2000aa.

      Merely stating that it is evidence collection plays into the false idea that police have the right to seize cameras and logbooks as “evidence.”

      • Difdi

        Illegally seizing cameras as “evidence” is still evidence…of official malfeasance and armed robbery.

        • ExCop-LawStudent

          Do you have the statutory language to show either offense?

          It’s not armed robbery, despite what you want to believe. I would have to look at the official malfeasance statute, but I doubt that it is covered there either. I’m not going to go through the research for Ohio, not after you’ve been shown the examples in Florida.

          You can’t just make up laws as you go along. To punish someone, you have to have a law on the books already, with case law to support that interpretation. It’s an old, established principle, “Nullum crimen, nulla poena sine lege.”

          • Difdi

            So if I were to have a holstered pistol on my belt, walk up to someone, take their property out of their hands, walk away and then throw the property into a garbage can as soon as I’m out of their view, it would not be an act of armed robbery because I did not aim the gun at them or intend to keep their property for myself?
            I haven’t made up any laws. You, however, seem to be obsessed with excusing people in uniform from having to obey any laws. Why is it that you feel someone who has sworn an oath to uphold the law should be held to a lesser standard of obedience to it?

          • ExCop-LawStudent

            I’ve told you several times that I do not believe in a lesser standard, nor do I have a problem with an officer who breaks the law being charged, tried, and convicted for the violation.

            I do have a problem with charging someone with a crime where they do not meet the elements of the offense. I’m perfectly fine with the Conn. State Trooper being charged with felony theft, and if there is an enhancement for theft by a public servant, I’m good with that too.

            I don’t like inappropriate criminal charges. I feel that way whether it is Carlos Miller being unjustly charged with resisting arrest or if it is a police officer being unjustly charged with “armed robbery.” It is the same thing that I see every time an officer does something that you don’t like–you immediately call for criminal charges that are not appropriate for the offense, such as a major felony (18 U.S.C. 242) for a misdemeanor violation.

            You are no different than those officers that attempt to file felony wiretapping charges on videographers. It’s called overkill, and it is not appropriate from either side of the equation.

          • Difdi

            I am no different than those officers and you are no more than an apologist for criminals in uniform. We can hurl insults as much as you like, and they’ll be equally true no matter who does it.
            18USC242 is a real federal law, and if the shoe fits, it should be worn. An officer who has to break his oath to do business-as-usual has damn good evidence that he’s obeying illegal orders. All I’ve suggested is that if a public official breaks a law only a public official can break, that anyone who has taken a junior high school civics class KNOWS is not the right thing to do, should be held accountable under that law.
            It is flatly impossible to seize property illegally while armed without intending to deprive the owner of its use. A non-police officer who illegally takes property while armed would be charged with armed robbery and very likely convicted of it. I really doubt that such a defendant, if he told the court he dropped a wallet he mugged a passerby for into a salvation army kettle would be acquitted due to his lack of intent to keep the money. But a police officer who does something similar is excused by you because he does not intend to keep the stolen property? He swore an oath to uphold the law, and is trained in the application of the law. Ignorance or just following orders or just business as usual does not excuse committing crimes for anyone else, why should it for police?
            I’ve heard it said that studying law focuses your mind while simultaneously narrowing it. Is it true?

          • ExCop-LawStudent

            “There are none so blind as will not see.” I’m not going to point out the semi-truck sized holes in your argument. It does no good, any more than trying to reason with a conspiracy nut or a “sovereign” citizen. Believe what you want.

            Law focuses your mind while widening your perspective. If you don’t look at both sides of an issue, you’re not going to succeed.

          • Difdi

            You call me a conspiracy nut and/or sovereign citizen? What is it with you and ad hominem attacks?
            Since you’ve made what amounts to an admission you can’t argue the merits without personal attacks, I’m done arguing with you. I can’t stand fascists.1

          • ExCop-LawStudent

            Try learning to read. Nowhere did I call you either of those.

            I said that you don’t listen, any more than those type of people listen. It’s called making an analogy. You have very limited understanding of the law, and you have no inclination to hear anything but your own opinion regurgitated to you. Both of those traits are shared with the type of person I used to make a comparison.

            As for arguing the merits? Show me one post where you have shown any authority for your position. You make broad statements about “armed robbery” where the elements of the offense are nowhere close to being met, and when confronted with case law on it, you dismiss it because it does not meet your worldview.

          • Difdi

            And yet it moves.

          • Fotaugrafee

            But because you have a supposed “broader spectrum” of the law via formal education, you have an “understanding” of it? Get real, buddy. All your education and “understanding” gives you is an egotistical stance that somehow you “understand” things better than we do. Either way you view it, it’s still slanted toward your former brethren in the pig patrol.

          • ExCop-LawStudent

            I do have a better understanding of law than you–of course, that bar is not set very high.

          • Fotaugrafee

            Amen.

            Why is he like this? Because he was an “ex cop”, he’s one of these future DA’s who will defend the “rights” of his police state to handle “his people” accordingly.

      • Fotaugrafee

        The operative word here is “copies”. They do not have rights to the original content, as that is MY property. As a photographer, I will often license my work for the right cause or price, but I will NEVER give up the original content unless I’m being paid quite nicely.

    • http://www.noneedforastinkingwebsite.com dow daytrader

      re”Photography at a crime scene is evidence collection as it can be used later in court. ”

      WRONG….if so, then thousands of television journalists would have had their film and video seized each time they filmed/video’d a crime scene for the past 52 years of television news.

  • Pat

    Hi there –

    “Most of the cases I write about end up getting dismissed without going to trial, but because there are always new cases to write about, I never get around to writing about the actual dismissals.”

    This would be good.

    However, something that would be much better is:

    * a collection of documents that the defendants used to defend themselves!
    * case law and pleadings already in the legal form.

    Lets make it so that the dismissal comes faster and faster. I look forward to the day when one of us is about to be arrested and we can show the officer that this is instantly going to go badly.

    Only then will this harassment stop.

    • ExCop-LawStudent

      Case law and pleadings would be difficult, as each state has different requirements as to form, and case law is not generic. California case law is not binding on Texas, the 1st Circuit is not binding on the 11th Circuit, etc.

      • Lefim

        True, ECLS, case law laid in one Circuit may not be binding to another – but it can, through the eloquence of its analysis of law supporting its decision, influence other Circuits deciding the same type of case. This cross-reading of each other cases across Circuit boundaries appears quite common. And this build-up of one case law influencing another case, which in turn influences still more cases creates a consistancy of law in most of the Circuits.

        One example is Ankeny v. Daniels, 916 N.E.2d 678 (Ind. Ct. App. 2009) which influenced the decision in Farrar v. Obama (Office of State Administrative Hearings State of Georgia 2012) and Paige v. Obama Et Al (VT Super. Ct Nov 2012), to name a couple. If one of the courts in seperate Circuits decided otherwise, then there would be a constitutional inconsistancy heading to the Supremes.

        Likewise, in our particular interest, Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) have had an influence on the decision made in ACLU v. Alvarez (7th Cir. May 8, 2012) located in seperate Circuit.

        • ExCop-LawStudent

          You are correct.

          I used the word “binding” in my post for a reason. There are two types of authority one can cite, primary and secondary.

          Primary authority is statute or case law. Anything else is secondary. Primary authority can be either binding (or mandatory), or persuasive. Secondary authority is always persuasive.

          The only authority a court is required to follow is the binding authority. This consists of the statutes and codes of the jurisdiction, and the opinions and case law of the appellate courts of the jurisdiction. Other courts from outside the jurisdiction are persuasive authority only.

          So a criminal trial court in Texas would be bound to follow the decisions of the Texas Court of Appeals and the Texas Court of Criminal Appeals, but might be persuaded by a decision out of Florida, so long as there is not a binding decision out of Texas that is on point.

          The point I was making is that there is too much case law and statutes for Carlos to post–it would be far better to link to a public database of cases, such as Findlaw or PLoL, than to try to do it all here. The disadvantage is that none of the free resources allow you to Shepardize the case to make sure that it is still good law.

          Sometimes a county will have a public law library that has access to Westlaw or Lexis for those that insist on self-help, but anyone that has a legal issue really needs to go to an attorney.

          • steveo

            Thank you for commenting on this blog. Your information is invaluable to all of us. And that’s not my usual cynicism.

    • http://www.facebook.com/profile.php?id=647684635 Carlos Miller

      Most don’t go to trial. They are simply dismissed with little explanation besides the obvious, that they have no case.

      • IO_IO

        If the case is dismissed, then there was no basis for an arrest. False arrest charges then should be perused. Actually, false arrest should be automatically charged against the officer by the DA. If this leads to the DA to not drop the case and continue to trial with no case, then it should result in malicious prosecution charges against the DA. Bottom line, arrest should only be made where it is warranted. It should not be the place of the police to penalize you through arrest and detainment overnight or through the weekend just because they can.

        There are a lot of good police officers out there. However, there are enough bad apples as to rot the entire lot. There are few avenues available to rid the system of the bad apples. Even the police unions defend the bad apples, to the detriment of the entire system. There are police review boards. I think that these are unnecessary since there is the Grand Jury system – which the police review boards are designed to circumvent.

        • ExCop-LawStudent

          Not necessarily no basis for arrest, but it definitely helps when going forward on a lawsuit.

          In most cases there is not a criminal offense for “false arrest” so a D.A. can’t prosecute the officer. False arrest is a civil tort, not a crime. That means you have to hire an attorney, either by paying outright or on a contingency basis.

          If, like most, you want to do it on a contingency basis, you’ll have to find an attorney that will take the case, because if you don’t win, he or she doesn’t get paid.

          • Fotaugrafee

            Umm, “Yes, NO basis for an arrest”. About the only real basis they had was for a temporary detention. There was no reason for a legitimate arrest at all, it was a bully move to show ‘who is boss’.

            You can tell you’re an ex-cop. Typical pro-MY LAW slant on everything. “If it sounds justified to me, I’m going to cuff you for it”.

          • ExCop-LawStudent

            Do you even have a clue about the difference between a temporary detention and an arrest?

            When there is a charge that is vague, like obstruction, interference, or disorderly conduct, there isn’t much difference between the reasonable suspicion for detention and the probable cause for arrest. It depends on what the cops say, and from over 20 years experience, I can tell you that they know exactly what to say and how to phrase their report. There’s also a long time saying among cops, that “they may be able to beat the rap, but they can’t beat the ride.”

            Without something like video evidence or unimpeachable witnesses, I can also tell you that the officers’ testimony will likely be viewed as more credible to the court (or for that matter, a jury). Even if the case is dismissed, going forward on a 1983 lawsuit is not easy, there are too many ways for the cops to get our on it if the plaintiff’s attorney is not extremely good and aggressive.

            I don’t agree with the arrest, you twit, but I’m not blind to what the city’s attorneys will argue in court, nor am I blind to what the court will likely rule.

  • YourTaxDollarsAtWork

    I would really love to see a portion of your web site dedicated to the outcome of the cases you have posted here and other related cases if possible. Many times I’ve browsed this site and others and wondered the final outcome of the case as well as the relevant case law. It would be another step in empowering citizens to stand up for their rights when they know their actions will be eventually supported by the “justice” sytem.

  • Tom

    It looks like the prosecution is going forward with this based on the police narrative which essentially claims he was getting to close and blocking emergency personal. I don’t think the police narrative is accurate but he could still be convicted if EMS workers and the officers stick to their story.

    This is why it’s so important to film these encounters.

  • http://freedomsphoenix.com FascistNation

    1. Anyone being dragged out in a stretcher has not expectation of privacy. That is (unfortunately) a news event.

    2. Osterreicher knows full well state law trumps subservient muni code. But it more correctly depends upon which the photojournalist was cited under.
    3. Lucky bastard! They want to play. 42USC1983 Sue Sue Sue.

    • ExCop-LawStudent

      As to #2, state law preempting a city ordinance, that is not necessarily true. As long as there is one element that is different, a court may rule that the state law does not preempt the city ordinance. It doesn’t make much sense, but that is law.

      • Difdi

        Which is why laws at the state level need to be written as preemptive.

        • ExCop-LawStudent

          I don’t disagree, but it isn’t going to happen. Too many people involved, and too many laws.

  • http://freedomsphoenix.com FascistNation

    I will say this, one thing that should be done is to film your location (especially unique landmarks) as best you can before you zoom in to demonstrate distance to event for later.

  • http://twitter.com/abaduck Mike Ross

    “…nothing in the law “shall be construed to limit access or deny information to any news media representative in the lawful exercise of the news media representative’s duties.”

    Is that constitutional? Sure, cities and police departments can implement press pass and media access *policies*, but is codifying different first amendment rights for different classes of citizens with the force of *law* allowed?

    I don’t think so…

    Mike

  • steveo

    What his defense needs to do is get depositions from the leos and ems individually at the scene. And any other bystanders, if possible, Use Google earth and pin the personnel down on where he was precisely standing. Google earth can measure distance accurately by inches. Normally to sustain a misdemeanor conviction the leo has to witness the “crime”, so if the witnesses are all over the place on where he was standing, the prosecutor is going to throw it out.

    FL case law indicates about 15 to 25 ft away is acceptable, maybe so in OH. Fl case law also indicates that rarely do words alone rise to the level of obstruction, so there has to be some physical aspect to the obstruction, not just telling the leos to go away and that he wasn’t doing anything wrong or that he was too close. Leos sometimes use the “leave me alone attitude” to justify obstruction. Leos usually say, “I had to go over and talk to the subject so he was interfering in what I was doing over in this other place by causing me to walk over to talk to him when he told me to leave him alone when he never asked me to come over and talk to him in the first place.” To alot of leos that is “obstruction”.

    The photography part is irrelevant except that news gathering is “protected speech” in all 50 states. Therefore, if the defense can prove that he was arrested for the photography, this would be “words” and not a physical obstruction.

    usually these obstruction statutes have a plethora of higher court decisions because attorneys are always challenging them as far as vagueness and intersecting with the 1st Amendment.
    And actually, being charged with a criminal complaint is always a better way to attack the statute as unconstitutional by asking for a declaratory judgement because when someones freedom is at stake, this is more important than a civil complaint to the higher courts.

  • Eva Nova

    I know what the problem is! It’s that the Chief of the Athens City Police Department, Chief Thomas D. Pyle II, is related to private first class Gomer Pyle …the first!

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