For the fifth time in less than two months, Austin police arrested a man while video recording them in public.

This time it was Joshua Pineda, 26, a member of the Peaceful Streets Project, the organization that focuses on video recording police as they interact with the public.

But this time, they did not confiscate his phone, which most likely was a result of Pineda exercising his right to remain silent while incarcerated.

However, detention officers and a jail nurse refused to accommodate his medical needs for kidney stones, even though he made them aware of his condition.

“I felt my kidneys hardening up,” he said about his 22-hour incarceration on a single charge of criminal trespass warning.

“I immediately told them about my kidney stones. I asked for proper hydration and they said no. I asked for my medicine and they said no.”

But when they asked him if he had been using his smart phone to record or if he had been using another camera that he had tossed to friends while getting arrested, he did not say a word.

“We issued a statement last week that we don’t use smart phones to record, so they were a little confused,” he said in a telephone interview with Photography is Not a Crime Monday.

“And when they asked me what camera I used, I exercised my right to remain silent.”

By this time, the arresting officers had left, so the officers questioning him weren’t sure what camera he was using, which is probably why the phone was returned to him upon his release from jail.

And that’s a surprise considering Austin police are currently in possession of four confiscated cameras from Peaceful Streets activists they have arrested.

Pineda’s arrest took place Saturday as he was video recording the Occupy Austin anniversary demonstration, in which they had planned to meet at a shopping mall, then march down to an abandoned Home Depot and set up a homeless encampment in the parking lot.

Although it is still in operation as a mall, Highland Shopping Mall was recently purchased by Austin Community College and will be converted into classrooms by next year, so it’s not exactly private property.

And while it may be debatable as to whether a property owned by a tax-funded college is public or not, it is a pretty safe bet that it would be considered public under the guidelines listed by the Citizen Media Law Project, a research center out of Harvard University that never fails to do its research on such matters.

However, some public property, even though it is open only for limited purposes, can take on the attributes of a public forum discussed above. A classic example of this type of property is public schools and universities. Although public school and university buildings are not wholly open to the public, some parts of a campus may be considered a public forum. If a school’s large open quad is accessed from public sidewalks and streets and freely used by the general public with no apparent objection from the school administration, then the quad may be considered “dedicated” to public use, and therefore more like the traditional public forums of the public park and sidewalk. Additionally, if the school opens certain of its rooms for non-school meetings that are open to the public, those rooms, during those times, will be treated as public forums.

Remember that because public schools are not entirely public forums, school administrators often have the discretion to restrict the entry of outsiders, particularly while the school is in session. Check in with the school administration before entering school grounds or you may be liable for trespass. Additionally, some states laws prohibit people from loitering within a certain distance while school is in session. These “school loitering laws” are mainly aimed at keeping sexual predators and drug dealers away from schoolchildren, but be aware that their language may be broad enough to cover lawful or innocent activity as well.

Just last week, a Federal judge in Austin ruled that police acted unconstitutionally when arresting activists on criminal trespass charges who were protesting on city property, a ruling which should apply to all public property.

But regardless if this property is considered public or private, it is pretty obvious from Pineda’s video that he was standing on the sidewalk, which is undoubtedly public.

In fact, the video show that he was most likely arrested because he pulled out a sheet of paper and started reading a police oath to the arresting officers, which is when they turned to him in seconds, pulling him off the sidewalk and arresting him.

Obviously, these officers did not like to be reminded about the oath they took when donning the badge in which they were to uphold the Constitution.

The video goes blank but it continues recording audio for several minutes after the arrest, which takes place within a minute of the video.

The incident is unsettling because before police moved in to make their arrests, they ordered the mainstream media reporters who were there to cover the protest to move across the street, which they did without question, according to Pineda.

The Austin media has been mostly silent about the ongoing crackdown against the Peaceful Street activists, especially when it comes to the confiscation of their cameras, which is clearly against the law.

The Austin Statesman based its article on the arrests on police reports considering they were not allowed to witness the arrests for themselves.

About 30 to 50 Occupy Austin members gathered shortly after 5 p.m. Saturday at the northern edge of the mall on the first anniversary of the start of the movement, Occupy members and arrest affidavits said. The group was met by a line of about a dozen officers who swept toward them and said they were on private property and needed to move to the sidewalk.

Arrest affidavits say Smith did not leave the property and was arrested. Pineda had left the mall property but stepped back onto the lot from the sidewalk, the affidavits said. But Peter Cooper, an Occupy Austin member who was standing near Pineda, said Pineda was filming police officers and did not step on the property.

Although he was referred to in the story as an Occupy Austin activist, Pineda said he was there as a member of Peaceful Streets.

It wasn’t until Saturday that the Austin Statesmen made an effort to put a stop to the crackdown against photographers with a wordy but soft editorial calling for the local police department to clarify its policy on dealing with citizens with cameras.

And it’s pretty evident that the only reason they even wrote such an editorial is because the National Press Photographers Association sent a strongly worded letter to Chief Art Acevedo last month, insisting he draft a set of guidelines that weren’t so vague, which Acevedo apparently agreed to do.

According to the Statesman editorial:

In the next two weeks, Acevedo plans to make public another change in policy regarding the department’s guidelines on how officers should interact with citizens who are filming them. We share concerns voiced by the National Press Photographers Association that current department guidelines are both broad and vague. The group, based in North Carolina, has questioned whether certain directives are constitutional. That is a legal question that falls to a court to answer. What we know is that the guidelines need more clarity in spelling out when and how people can film officers without interfering with their duties and regarding how officers should respond when they are being filmed so as not to violate a person’s First Amendment rights.

Acevedo’s new policy, which we viewed in draft form, aims to balance those interests in a way that protects citizens and officers.

The policy affirms that regular citizens have a First Amendment right to video record, photograph, and/or audio record Austin Police Department officers while on duty “in any public space,” unless such recordings interfere with police activity. Public spaces are defined as parks, sidewalks, streets, locations of public protests, a person’s home or business, common areas of public and private facilities and buildings and any other public or private facility at which a person has a legal right to be present. The policy also states what spaces are off limits to the public, such as areas designated as crime scenes or places that are closed off by a police line.

The policy covers a lot of ground. It instructs officers not to tell people to shut off recording devices if they are filming lawfully. It also states that officers should not demand identification or compel those recording to explain why they are filming. And an officer is instructed not to intimidate or discourage someone from filming law enforcement activities. The policy does not specify a distance from which a person legally can film police activities. That probably is the right approach because there will be times when filming can be done very close to an unwinding law enforcement event without interference and other times that require greater distances.

Not once in its 800-word editorial did the Statesman address the issue of confiscated cameras, which the Austin Police Department has done at least four times in recent months in direct contradiction to the guidelines issued by the Department of Justice which states this can only be done under exigent circumstances.

They’re probably saving that one for when one of their own cameras gets confiscated.

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I am immersed in a legal case where I not only want to clear my criminal charges stemming from my arrest in January, but I want to sue the Miami-Dade Police Department for deleting my footage, which I was able to recover.

My goal is to set some type of precedent to ensure this does not happen as often as it does today where cops simply get away with it.

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