A man who was taking aerial pictures of a Veterans Administration hospital in Louisiana this month had his memory card confiscated and is now awaiting trial for “unlawful photography.”
However, Mickey Osterreicher, General Counsel for the National Press Photographers Association, says not only did Veterans Administration police had no right to confiscate his memory card, but they are misapplying the federal code regarding unauthorized photography.
After all, he said, the code specifically allows “photographs for news purposes” to be taken from outside federal buildings.
And Jay Cougar was on assignment for a local newspaper that day, asked to photograph the sun panels on the roof of the hospital.
“I launched my drone from the sidewalk outside the hospital, but then I walked in the parking lot to take some photos,” he said during an interview with Photography is Not a Crime.
“I then walked back on the sidewalk and landed the drone.”
And before he knew it, a group of VA cops were walking in his direction, telling him he was flying the drone in “restrictive airspace.”
Cougar, who shoots wedding videos in the Shreveport area, was trying his best to comply with police.
He even followed them back into the building when they told him they wanted to see his images. And once in the office he showed them eight photos he had taken of solar panels and rooftops, in case they thought he was trying to violate anybody’s privacy.
And after 20 minutes of detaining him, they realized they could not cite him for flying in a restricted airspace, they settled on unauthorized photography. Eight counts. A fifty dollar fine for each photo, if convicted.
His trial is Friday.
Cougar did not hire a lawyer because it would have him cost him more than the $400 he would have to pay if convicted.
But there are few lawyers in this country that know more about this issue than Osterreicher, so I will cut and paste his entire analysis on the situation from the details I told him.
And Cougar, who has already been forwarded this information, said he will print it out and take it to court with him. Hopefully, he’ll bring in the editor of The Inquisitor, the news site he was working for, who would confirm he was shooting news that day.
As with all cases the fact pattern is very important, such as where Mr. Cougar was located, which according to what you related to me – he was both on and off VA property.
I do not believe that the VA police had a right to seize his memory cards or his drone. Once again seizure of someone else’s property by the government violates that person’s rights under the Fourth (search and seizure) and Fourteenth (due process) Amendments, not to mention his First Amendment rights as a form of prior restraint. Generally speaking, without an arrest, seizure of a camera, cellphone or recording media by law enforcement is only permissible under exigent circumstances. Those are: (1) There must be probable cause that a serious crime was committed and (2) that the officer had a good faith belief that evidence of said crime was recorded on the device and (3) without such seizure said evidence would be lost or destroyed. All three prongs must be satisfied, which in this case I believe they were not, as a “violation” for “unauthorized photography” is not a serious crime (see below). Even with seizure, and absent voluntary consent by the person who recorded the images, the law enforcement agency must still obtain a warrant before they view or copy those files.
The FAA has stated that drones may not be used for commercial purposes. They just recently issued a memo regarding Media Use of UAS (see: https://www.scribd.com/doc/264441605/FAA-Memo-on-Media-Use-of-FAA#scribd). But once again according to the facts as related by Mr. Cougar, his use of the drone would not be permitted under that memo. This has nothing to do with restricted airspace, and regardless, the VA police have no jurisdictional power under FAA rules other than to report the incident to that agency. If Mr. Cougar was violating FAA rules (for the first time) he would have most probably only received a cease and desist letter from the FAA.
As for unauthorized photography, pursuant to 38 CFR 1.218, “Security and law enforcement at VA facilities,” paragraph (a) section (10) “Photographs for news, advertising, or commercial purposes” states, “Photographs for advertising or commercial purposes may be taken only with the written consent of the head of the facility or designee. Photographs for news purposes may be taken at entrances, lobbies, foyers, or in other places designated by the head of the facility or designee” (emphasis added). Paragraph (b) “Schedule of offenses and penalties,” states, “Conduct in violation of the rules and regulations set forth in paragraph (a) of this section subjects an offender to arrest and removal from the premises. Whomever shall be found guilty of violating these rules and regulations while on any property under the charge and control of VA is subject to a fine as stated in the schedule set forth herein or, if appropriate, the payment of fixed sum in lieu of appearance (forfeiture of collateral) as may be provided for in rules of the United States District Court. Violations included in the schedule of offenses and penalties may also subject an offender to a term of imprisonment of not more than six months, as may be determined appropriate by a magistrate or judge of the United States District Court.” The fine set forth under Section (23) for “Unauthorized photography on premises,” is set at $50. Nowhere in that regulation does it authorize a multiplier factor of the $50 fine for each image recorded, so at most the fine would be $50 if Mr. Cougar either pleads or is found guilty of the violation.
Given that Mr. Cougar asserts he was taking exterior photos of the hospital for a newspaper that section of the regulation pertaining to news photography does not require permission and therefore the government may not be able to prove he violated the elements under that section. Additionally, if he was indeed not on VA property at the time of his arrest but rather on a public street or sidewalk this regulation would be inapplicable.
The fact that they seized his memory card unlawfully should give Cougar grounds to file a lawsuit if he so wishes. But firsts things first. He must first get the case thrown out against him.