March 27th, 2013

Teenage Railfan Sues Over Unlawful Arrest (and Other Rail News, Including Metrorail Update) 49

By Carlos Miller

One of many rail photos taken by Gregory Grice throughout the Northeast. This was taken in White Plains, the same county he was arrested in.

 

Gregory Grice was 16-years-old, but smart enough to carry a copy of the Metropolitan Transportation Authority when he ventured to a New York train station to take some photos in 2011.

But that didn


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  • byoung328

    “Specific employees can be identified for retraining as needed.” When!! After the third or fourth time and after they beat someone up. Man these people make me angry and I don’t even live anywhere near Miami.

    • Difdi

      When? Probably after the court rules against them but before the decision on amount of damages. Company leadership talking about retraining tends to lower damage awards.

  • Stanley B. Manley

    As long as the offending officer does not suffer loss of pay this crap will continue. Getting “suspended with pay” sounds suspicously like “vacation”.

    • the sage

      Look for more citizen “fast draw and double-tap” responses to officers like this in the future. People have a breaking point.

      • Stanley B. Manley

        Be careful what you say on the i-net, it CAN come back to haunt you.

  • http://www.facebook.com/tim.harris.ny Tim Harris

    The brains of a lizard is suppose to be protecting us.

  • Lefim

    “It’s past time for the NYPD to learn about the Constitution and stop harassing and even arresting people for exercising their basic rights.”

    Also 50 State Security? Bad enough dealing with a 100-mile “Constitution-free zone” around our borders, now “Constitution-free rail platforms?”

    • Difdi

      To say nothing of the way police like to declare “designated constitution zones” during things like political conventions and mass protests and arrest anyone found exercising their rights outside of them.

  • steveo

    Another case of government agents with guns acting as chief censors in charge of content. Listen son, you can take pictures all you want of us receiving medals, walking in parades, even escorting old ladies across the street, but when us leos tell you to stop taking pictures of what we don’t what you to take, you better stop. Because I have a writ of assistance signed by King George that says anything the government doesn’t want you to publish or record can be taken by us and then we can escort you in handcuffs to the Tower of London where you’ll be stretched on the rack.

  • JdL

    …he was being detained because was “kneeling down with a device”

    Which is obviously enough to make a cop shit in his pants and call for backup.

    Is there ANY level of cowardice that a cop won’t stoop to, then act all sanctimonious about?

    • Difdi

      No. After all, the entire purpose of the job is officer safety, they’re not out there in uniform for any other reason.

      • JdL

        We’d be better off if we paid them their same salary to sit all day/night in their precinct offices! And of course, even better off if we fired their sorry asses and spent our money on security that really benefits the public.

  • lizzieb23

    I wish people would also file a lawsuit against the PATH system — the Port Authority of New York and New Jersey — which operates not only the subway between NY and NJ but also the bridges and airports. Unlike other mass transportations systems in/around NYC, the PATH prohibits ALL public photography without a permit (you can’t even make a drawing), and the permit rules are completely unconstitutional and arbitrary, deliberately making it practically impossible to take photos (for example, a “chaperone” has to accompany you and OK every single shot before you take it — but since no extra employees are available to fulfill this function, then you don’t get to take photos EVEN IF you somehow managed to get a permit.) I brought this to the attention of the NJ ACLU but they said they didn’t have the resources to do anything about it. Years later, a law review article was written (by one of the ACLU interns) showing how the PATH rules are unconstitutional, but no lawsuit was ever filed. The NY ACLU seems to think this is a NJ issue only jurisdictionally (it is not) and there is already a Federal case from 1977 which has ruled that the PATH stations are “public places” for 1st Amendment purposes. SOMEONE NEEDS TO SUE THE PATH SYSTEM! People taking photos on PATH property — not just the subway but also the GWB Bridge etc — are being harassed by the PATH PD and their names are being placed on “terrorist” lists and NO ONE is doing anything about it.

    • http://twitter.com/cpovey Colin Povey

      You can’t sue because you think the law is wrong. Someone has to be arrested or detained, then they can sue.

      • Difdi

        You can sue over a prior restraint without needing to be arrested.

        • ExCop-LawStudent

          It’s not quite that simple, but you’re generally correct that there doesn’t have to be an arrest to sue for a constitutional violation. See ACLU v. Alvarez, 679 F.3d 583 (7th Cir. 2012). There were no arrests, but the plaintiff still had standing to bring suit to protect their constitutional rights.

          • lizzieb23

            First of all anyone who wants to take photos but can’t without risking arrest already has standing by that reason alone. Secondly, anyone who is actually prevented from taking photos has standing, as I was prevented from doing so even if I was not arrested. Third, one of the few exceptions to the standing rule is when you’re asserting a vagueness/overbreadth claim in prior restraint cases. This is known as third-party standing.

          • ExCop-LawStudent

            I suggest you read my comment again.

            Difdi said you don’t have to be arrested to file a lawsuit on prior restraint.

            I agreed with him. I don’t know where you got the idea that I said anything except that the plaintiff would have standing. The case I cited clearly stated “[a] person need not risk arrest before bringing a pre-enforcement challenge under the First Amendment….”, ACLU v. Alvarez, 679 F.3d 583, 591 (7th Cir. 2012) (alteration in original, internal citations omitted). This is more analogous to the scenario you proposed than an overbreath claim, even though it is persuasive authority, not mandatory authority.

            While I didn’t cite NAACP v. Button, 371 U.S. 415 (1963), or Dombrowski v. Pfister, 380 U.S. 479, or any number of other cases, I clearly indicated that there did not have to be an arrest in order to have standing.

            I didn’t go into detail on the overbreath claim because it wasn’t necessary. Still isn’t, other than your inaccurate reading of my comment.

            Besides, if you’re an attorney, get a client and file, or file pro se on your own behalf.

      • steveo

        You have prove standing, but it is true that if there are criminal charges it’s easier to get a declaratory/injunction ruling because someones life and liberty is at stake, but if it’s somewhat clear that the defense wants to challenge the law itself the prosecution most times drops the charges. That is what we see with most arrested for filming cases.

        • Joshua B.

          You’ll have standing if you can make a bona fide showing that you have the intent to engage in First Amendment protected activity (photography) on the PATH, and that there is a credible threat you will be prosecuted for doing so. Same theory as ACLU v. Alvarez, as ExCop-LawStudent mentioned.

          Out of curiosity, has anyone been arrested for taking pictures in the PATH?

          • Difdi

            Exactly. If the prosecutor always drops charges as soon as it looks like someone will fight back, but keeps up the policy of arresting people for exercising rights, there’s your credible threat. No need for charges against you to have standing, the policy itself is enough for someone it would impact to have standing.

          • lizzieb23

            Doesn’t matter — you don’t need to be arrested or convicted etc to challenge the constitutionality of the permit rules on vagueness/overbreadth grounds. This is one of the very few exceptions to the standing rule. It is called Third Party standing.

          • Difdi

            Please read what I wrote before replying to it, it keeps you from looking silly.

      • lizzieb23

        Dude, I went to law school, I know what I’m talking about, OK? You file for declaratory and injunctive relief. Sadly, I don’t actually practice law so I can’t do it.

    • Warren H.

      Anybody know what the 1977 court case mentioned is? Who vs Who?

      • Difdi

        Doctor?

      • lizzieb23

        I dont want to get into a legal debate here which should be instead before a judge but the cases is Moskowitz v Culman, 432 F.Supp. 1263

        Where operator of bus and train terminal was a
        subdivision of port authority created by agreement
        between states of New York and New Jersey, the
        terminal was a “public forum” in which the expression
        of First Amendment activity, including the distribution
        of printed material, was constitutionally
        protected, and whatever restrictions may flow from
        the status of property denoted as “private” were
        wholly irrelevant.
        ==========================
        See also: The Snapped Shutter: Violations of the First Amendment Rights of Photographers on the Port Authority of New York and New Jersey PATH system, by Sarah Garvey-Potvin, 63 Rutgers Law Review 657
        http://www.rutgerslawreview.com/wp-content/uploads/archive/vol63/Issue2/Garvey_Potvin.pdf
        =========================
        Apart from the restrictive hours to apply and obtain a permit, and the whole chaperone thing, there are many other problems. The general law about permits for !st Amend actvity is that while PATH may require permits for photography, the rules have to be very clear-cut so that the determination to issue or deny permit is a “virtually ministerial” decision (Shuttlesworth v Birmingham City, etc etc). THe way the PATH permt rules are written now, they give totally arbitrary power to the PATH since they can prohibit any photography if “it will create an image which could be used to aid in the planning of an attempt” to do something bad. Now I ask you, what image CANNOT fit under that definition? Talk about vagueness and overbreadth! It essentially amounts to NO rule.

        The PATH rules: http://www.panynj.gov/path/rules-regs.html

  • Proud GrandPa

    “Grice’s situation is not much different than what happened to me…”

    We hear no more about Grice or Greenburgh Police in the remaining 2/3 of the article. This happened on or about June 20th, 2011. There is no news here.

    On the plus side PINAC provided interesting legal background and another retelling of Carlos’ story. One hopes for more current news in future articles. Keep up the good work. We support you and the first amendment.

    • http://twitter.com/kylejack Name

      The news is that Grice has filed a lawsuit.

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

      He filed the suit March 15. I guess I should have made that more clear.

      The email from Miami-Dade was sent yesterday.

      And the federal ruling regarding NYC trains was made last week.

      It’s all pretty timely and each item is worthy of its own post but I figured I would save time considering they all relate to photographing public trains.

      • Joshua B.

        Carlos, that is a really damning email from MDT. I’m shocked their lawyers allowed them to send it. The admission of fault will hopefully be admissible in your lawsuit against 50 State, barring any hearsay issues.

        Also, why didn’t your lawyer sue MDT, the county or city? With 50 State’s pattern of harassing people for exercising their First Amendment rights, there seems to be a “policy or custom” that would support a Monell claim.

  • http://www.facebook.com/godusesamac Nathan Pierce

    Government – Stomping on childhood dreams.

    • n4zhg

      A famous comedian said that the reason it’s called “The American Dream” is that you have to be asleep to believe it.

  • http://www.facebook.com/bruce.snyder.9 Bruce Snyder

    What really cracks me up is that you can go to the Metro North Railroad stations page and find a photo of each station — including track photos. White Plains too, of course.

    Link: http://as0.mta.info/mnr/stations/stations.cfm

  • http://www.facebook.com/stvjas Steve James

    do you sever get the feeling we are being trained to rely on government intervention at every turn?

    When did being normal, with tendencies to take pictures of interesting happenings become suspicious activity

    • Difdi

      It’s called learned helplessness. Most people aren’t being trained in it, they already ARE trained. It started decades ago. If you graduated high school any time in the past 30 years, you have it to one degree or another.

      Yes, it’s getting worse over time, but it’s not anything new.

      If you were to throw a situation that we grit our teeth and bear (because we have been taught we can’t do anything about it) at people from 1813, you’d have a war on your hands.

  • http://www.facebook.com/brianjosephconnelly Brian Connelly

    The best way to fix this situation is for everyone to be armed and defend themselves when police and hired security goons break the law and assault innocent people. When police and security fear the people more than the other way around, you’ll have true liberty.

    • ExCop-LawStudent

      How’s that worked so far for the guys that have tried it? The Kanes tried it. Why don’t we ask them. Oh, sorry–I forgot–they lost.

      • Difdi

        One man standing up for his rights and refusing to be bullied is a criminal. A thousand is a mafia. A hundred thousand is a revolution.

        • ExCop-LawStudent

          OK.

          Call me when you can get 100K armed men, together, standing up for their rights.

  • steveo

    This decision by the district court was pretty interesting. The leos who testified all had different understanding of what the TA ID rule stated. One said people had to have a picture ID, one said they had to have a NYState issued DL, and one said he wasn’t sure, but they all said that if a rider didn’t produce some type of ID card they could arrest them. TA said that their ID rule wasn’t any different than the Terry stop principle that leos had to have reasonable suspicion and the detainee only had to identify himself and the leos had it all wrong. The leos said they didn’t need RAS to require ID on the metro.

    Court struck down the ID rule entirely, and imposed training guidelines.

  • http://www.facebook.com/pdbreske Phillip D Breske

    In the message from Miami-Dade Transit Director Ysela Llort, this statement: “…the security contractor retrained all of its personnel in the proper interpretation of commercial photography…” gives me pause. What does this mean? Do they assume that anything larger than a point-and-shoot is a professional camera and thus it is being used for “commercial” photography? This statement requires clarification.

    • Difdi

      It means they were likely only retrained in handling commercial photographers and not retrained at all in handling tourists and artists. Therefore we can expect more incidents of security guards accosting people like Carlos and demanding to see his commercial photography permit, then “taking down the perp” if he lacks one.

  • http://www.facebook.com/jeffrey.m.gray Jeffrey Marcus Gray

    My oldest son is a rail fan and has been since he was a toddler when he started watching Thomas The Tank Engine. We have had many solid father son experiences rail faning together. As you can imagine we have been harrased a few times by paranoid/ignorant security and the police.Once we were waiting for a night time Amtrak only to have the police show up right when the train was arriving. My son and i were getting out of my car so we could get the shot only to have the police order us to “stay in the vehicle and keep your hands where we can see them” of course that ruined the shot. We also enjoy plane fanning at air ports and you would think my son and I are Osama and Osama jr for daring to take pictures of aircraft!

    • Difdi

      An order to not exercise a constitutional right is an unlawful order. While disobeying a lawful order is a crime (by statute) in many states, disobeying an unlawful order cannot be a crime. A military officer who obeys an order he or she knows to be unlawful is subject to court martial. Obeying an unlawful order as a civilian can result in criminal charges if the act you are ordered to perform is itself illegal.

      Still, police are armed. An order to stay in the vehicle and keep your hands visible would probably be met with gunfire if you disobeyed it and got out to take pictures. Legally, you’d be in the right. Bullets still have the right of way, unfortunately.

  • LeChat

    This used to be a free country. When I see what is happening now, I am truly sickened.

    • Difdi

      It’s an ongoing process, nothing is new about it. It’s all part of the plan to gradually strip us of our human rights under the constitution. They call it being progressive. I call it an attempt to destabilize an interlocking web of mutually-defended rights.

      If you drop a frog into a pan of boiling water, it leaps out instantly. But if you put a frog in a pan of cool water and gradually raise the temperature, the frog boils to death because it doesn’t notice anything wrong. We’re no different.

      The temperature has been rising for over 80 years. The domestic enemies of the constitution have been winning for over 80 years. Individual frogs might notice something wrong, but the majority of the frogs in the pan think things are normal. They’re not, but unless the enemy makes the mistake of rushing things, most of the frogs will happily boil to death.

      • ExCop-LawStudent

        It started when the 17th Amendment was adopted, completely changing our form of government and removing on of the most important checks on the centralized federal government.

  • Barking Dog

    White Plains is a small city in the County of Westchester, next county north of the Bronx

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