Photography In Public Is Not A Crime

from the protecting-the-first-amendment dept

Sadly, we talk way too often about police arresting people for doing nothing other than taking a picture or filming them. The police officers being filmed and photographed make these arrests using various excuses, but frequently the charges get dropped for lack of merit. The reason charges rarely stick when an officer is filmed is because filming police, or anyone in a public space, is not illegal. Some people may not like it, but it is a fact.

The New York Times is waking up to this fact that photography is not a crime. In an interview with Mickey H. Osterreicher, general counselor for the National Press Photographers Association, they get down to the nitty gritty of the legalities surrounding this age old tradition. They also talk a bit about just why such arrests are happening more frequently.
Since 9/11, there’s been an incredible number of incidents where photographers are being interfered with and arrested for doing nothing other than taking pictures or recording video in public places.

It’s not just news photographers who should be concerned with this. I think every citizen should be concerned. Tourists taking pictures are being told by police, security guards and sometimes other citizens, “Sorry, you can’t take a picture here.” When asked why, they say, “Well, don’t you remember 9/11?”
I haven't really thought of criminalizing photography as something to do with 9/11 before. I know that a lot of our rights have been eroded since that day, but the photography aspect never really clicked until now. Just as Mickey can't make heads nor tails of this argument, I am struggling to find a connection here. I don't recall cameras being a part of the plots to destroy the Twin Towers, Pentagon or White House.

Of course there could be more reasons for this increase in arresting photographers. Mickey suspects that part of the reason is the proliferation of the camera. Pretty much everyone with a smart phone has a camera capable of taking some very high quality pictures. Prior to this boom, the police had some modicum of control over the press. They knew the press wasn't going to be everywhere and were used to not being under constant recordable surveillance by the public. Now that anyone could be filming them or taking their picture, they are more on edge and more prone to lashing out.

When this happens, it is important for those accused to know their rights. However, it is also important for the police to know the public's rights as well. While you, as a photographer, may know that you have the right to take pictures or film in a public space, some officers may not know or may have forgotten that fact. That is why the Mickey and others have been working with police to keep officers reminded of that right.
Q. After photographers were stopped from photographing the police clearing Occupy Wall Street protestors from Zuccotti Park, you and representatives of a media coalition including The Times, met with the police commissioner Ray Kelly. What happened at that meeting?

A. It was on Nov. 23. I asked the commissioner if he would reissue the “finest message” from 1999 that dealt with the police cooperating with the press. He did that. It was read at 10 consecutive roll calls in every single station house and precinct.
The finest message is a policy statement on police interactions with the press. It states that officers are not to interfere with videotaping and photographing in public places. It also reminds officers that they have an obligation to assist the press whenever possible. This is very similar to the recent news when the DC police chief laid down the law on filming of officers.

Hopefully, continually repeating this message will help slow down this barrage of arrests for photographing the police. As more officers are reminded of the rights of the cameras-wielding public, we will hopefully start to see fewer future incidents. It would be great if other police departments across the nation follow the lead of NY and DC police in proactively spreading the word about the rights of the public to record and photograph the police.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Aug 22nd, 2012 @ 2:16pm

    Govt. Current Legal Logic

    Terrorists use photography therefore those who photograpgh must be terrorists.

    Has anyone else noticed that we are living in a Homeland?

    What other countries have considered themselves the Homeland in recent history?

     

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  2.  
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    Anonymous Coward, Aug 22nd, 2012 @ 2:18pm

    The reason they are skittish about photography is they suspect the person is doing surveillance for a future terrorist act. Don't you remember the photographers in LA shooting rusty old acid tanks? It was featured here in TechDirt.

     

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  3.  
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    btr1701 (profile), Aug 22nd, 2012 @ 2:19pm

    9-11

    > I am struggling to find a connection here.
    > I don't recall cameras being a part of the
    > plots to destroy the Twin Towers, Pentagon
    > or White House.

    Actually, there is a pre-attack surveillance video that was recovered overseas of the 9-11 hijackers touring the WTC and specifically focusing on security and building vulnerabilities. It ultimately wasn't used, because of the nature of the attack they eventually chose, but individuals photographing things which normal tourists don't care about-- metal detectors, security guard patrols and shift changes, vehicle barricades, etc,-- can be a good indicator of pre-attack surveillance.

    The answer isn't to crminalize such photogrpahy, however, it's to train your security personnel how to recognize this kind of abnormal behavior and address it, either by engaging in counter-surveillance of the individuals, engaging them in consensual police interviews, or making covert attempts to elicit information from them.

     

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  4.  
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    Anonymous Coward, Aug 22nd, 2012 @ 2:20pm

    Re:

     

    reply to this | link to this | view in thread ]

  5.  
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    btr1701 (profile), Aug 22nd, 2012 @ 2:23pm

    Press

    > It also reminds officers that they have an
    > obligation to assist the press whenever possible.

    I take issue with that. A cop's job is not to help a reporter do his job. As far as I'm concerned, a reporter is just another member of the general public. He can be anywhere the public is allowed to be and he can photograph anything he wants as long as he's legally allowed to be where he is. But I certainly am not required to go out of my way to *assist* him doing his job. I have my own job to do. I don't have time to be some kind of press aide on top of that.

     

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  6.  
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    MrWilson, Aug 22nd, 2012 @ 2:57pm

    Re: 9-11

    "but individuals photographing things which normal tourists don't care about-- metal detectors, security guard patrols and shift changes, vehicle barricades, etc,"

    Tourists aren't the only ones with cameras. Everyone has a camera. There are plenty of artists who use photographs as reference material for art. Look at sites like DeviantArt where people upload thousands of stock photos everyday of random things in hopes that someone will find it useful.

    I find metal detectors, security guard patrols, and vehicles barricades interesting. If I wanted to make a blog post about security theater, maybe I want a nice picture of a security checkpoint to go with it. If I wanted to draw a comic book about an (entirely implausible...right?) future in which the government perpetuates security theater and cracks down on civil liberties under the guise of "protecting" America, I'd need some reference photos to draw from.

    Besides, the people who take pictures of security protocols and checkpoints that are actually planning terrorist attacks are probably FBI moles who are trying to get angry but hapless would-be terrorists to agree to a cooked up plot so that they can pat themselves on the back and justify their budgets and incursions into the rights and privacy of American citizens.

     

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  7.  
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    btr1701 (profile), Aug 22nd, 2012 @ 3:21pm

    Re: Re: 9-11

    > I find metal detectors, security guard patrols,
    > and vehicles barricades interesting.

    Well, if you do, you must have a very low threshold for 'interesting'. Nevertheless, you'll note I did not advocate for criminalizing the photography of such things, just that security personnel be trained to be alert to such things.

     

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  8.  
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    Anonymous Coward, Aug 22nd, 2012 @ 4:00pm

    Chiefs can say what they want...

    I'm posting this as an Anonymous Coward, because in this case, I truly am.

    I'll only say that as soon as the Police Chief leaves the room, the union reps say 'F*ck that, you see someone filming you, take 'em down"

     

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  9.  
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    TOG, Aug 22nd, 2012 @ 4:01pm

    Illegal photography

    I don't know what actual laws may have been passed on this issue since 9/11, and I am certain that there is no reason for officers to harass people photographing protests, but I do know that since 9/11 there are signs all over that you are prohibited from (and police will enforce this; I have experienced it) photographing bridges and tunnels. The absurdity of this is just monumental. My sister did an art project on bridges and she was prohibited from taking photos of bridges that have been photographed hundreds (if not thousands of times) from every conceivable angle between the time they first were constructed and the time our government became paranoid about innocent citizens doing completely ordinary things after 9/11.

     

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  10.  
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    Killercool (profile), Aug 22nd, 2012 @ 4:06pm

    Re: Press

    Actually, the press is supposed to be the eyes and ears of the public. The police, being public servants, are answerable for their activities to said public. That is, "What are you doing, and WHY is it necessary?"

    Of course, you knew that when you ignored the phrase "whenever possible," since assisting the press is not possible when an officer is actively performing their duties.

     

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  11.  
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    Anonymous Coward, Aug 22nd, 2012 @ 4:50pm

    Re: Re: Press

    The police NEVER have an obligation to assist the press. They also never have a right to hinder the press, unless they are keeping them from their (legitimate) duties. If you have a citation to show I am wrong, I would like to see it.

     

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  12.  
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    Anonymous Coward, Aug 22nd, 2012 @ 5:02pm

    Re: Re: Re: 9-11

    I find it interesting too. Someday we will need a record of our overreactions. Cameras are so small that if a bad guy wanted to take pictures he could. They only people that they end up stopping are the innocent people.

     

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  13.  
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    Prashanth (profile), Aug 22nd, 2012 @ 5:18pm

    It does have to do with 9/11

    in the opposite way. Weren't there a whole bunch of amazing, poignant photographs by ordinary citizens of New York City immediately after the attacks? I don't think those would have happened with these police officers there.

     

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  14.  
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    Chronno S. Trigger (profile), Aug 22nd, 2012 @ 5:31pm

    Re: Re: Re: 9-11

    You must not have a concept of art. And by "a concept of art" I mean that there is none. What one person finds mundane or even offensive, another finds art.

    A friend of my sister is a photographer, I met him when he was photographing her wedding. A few weeks latter I saw him at a brewery festival taking pictures of port-a-johns. I asked why, reasonably thinking that it was kinda silly, and he replied by explaining the repetition and symmetry. He saw something I didn't because he was an artist.

    So don't be saying someone shouldn't be taking pictures of something just because you don't see the artistic nature.

     

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  15.  
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    That One Guy (profile), Aug 22nd, 2012 @ 5:46pm

    Re: Chiefs can say what they want...

    Sadly so, in the end what's said is worth squat, the only thing that matters is what is done when the inevitable occurs and you have a problem come up.

    The higher ups can go on and on about how the public has rights that their people need to respect, but as long as there isn't any real punishment for abusing those rights, the abuses will just keep continuing, and both the public, and the public's trust of the police, will suffer for it.

     

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  16.  
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    aboynamedsue, Aug 22nd, 2012 @ 6:01pm

    they won

    Looks to me like the terrorists have won with all the freedoms lost.

     

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  17.  
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    illuminaut (profile), Aug 22nd, 2012 @ 6:15pm

    Repeating the message ad nausea won't do much to change the behavior of officers. There needs to be some kind of penalty for overreaching. Only if they're afraid of consequences will they stop the harassment.

     

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  18.  
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    Bergman (profile), Aug 22nd, 2012 @ 6:31pm

    Title 18, Chapter 13, Sections 241 and 242 directly bear on this sort of thing. Put simply, under those statutes it is a federal crime for a public official to use their position of authority to violate a citizen's rights, whether those rights be civil, statutory or constitutional. Police, school administrators, child protective services workers, firefighters, council members, mayors, among many others; They're all public officials.

    A simple verbal discouragement or order to desist is worth a year in federal prison. Each right violated is a separate charge.

    If use of a dangerous weapon is threatened, or one is actually used, or an injury occurs in the process of the violation of rights, the penalty under the law jumps to ten years in prison. Each right violated is a separate charge.

    If anyone is killed, or sexual assault takes place in the course of the violation, the penalty jumps to life in prison or execution.

    Section 241 is essentially conspiracy to break Section 242. All penalties follow the pattern in 242, but start off one step more severe.

    The U.S. Supreme Court has ruled on the matter of false arrests (John Bad Elk vs The United States) and essentially stated that while resisting a lawful arrest is a crime, resisting a false one is not. If the falsely-arresting officer dies in the attempt to commit a crime, the worst applicable charge is manslaughter, not murder. And if the killing was legitimate self-defense (for example, an officer draws his sidearm to enforce the false arrest, thus threatening the victim's life) then no crime would be committed in killing the officer. The fourth amendment was the basis of that ruling, and the fourth amendment has not been altered in the years since the ruling. The ruling has never been overturned, repealed or modified.

    Most states permit a citizen to use force in self-defense against a felony being committed against that citizen. Some states forbid resisting police even if the police are committing felonies, others make no distinction between a uniformed felon and a non-uniformed one. But the Bad Elk decision would override those laws, under the supremacy clause (a state statute that violates the state constitution is null and void, and even a state constitution cannot override the federal constitution).

    Some states shield uniformed police from citizen's arrest, some do not. Some states permit citizen's arrest for only state crimes, some do not. Some states permit citizen's arrest for felonies only, others are more relaxed. But the fact remains that it might well be legal to arrest the officer who is abusing your rights, and a crime carrying a 10+ year prison sentence is a felony by anyone's standards.

     

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  19.  
    identicon
    Anonymous Coward, Aug 22nd, 2012 @ 6:45pm

    It's not just photographers, the police seem to feel justified for stopping anyone for anything - and their arrogance about it continues to esculate. They have been embolden by freebie gifts from the military and judge themselves to be more like the military than civilian "peace" officers. I've noticed that locally "to serve and protect" has disappered from police car emblems. I don't know if that's true everywhere. There has been numerous reports on the militarizaton of urban police. I was not impressed, down right scared even, with actions police used against protesters during Occupy.

    Hasseling photographers and journalists is just a symptom of the bigger problem. I think police officers feel like they are in the military during a war and all citizens are potentionally insurgents. This is what fear does.

     

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  20.  
    identicon
    Anonymous Coward, Aug 22nd, 2012 @ 6:46pm

    It's not just photographers, the police seem to feel justified for stopping anyone for anything - and their arrogance about it continues to esculate. They have been embolden by freebie gifts from the military and judge themselves to be more like the military than civilian "peace" officers. I've noticed that locally "to serve and protect" has disappered from police car emblems. I don't know if that's true everywhere. There has been numerous reports on the militarizaton of urban police. I was not impressed, down right scared even, with actions police used against protesters during Occupy.

    Hasseling photographers and journalists is just a symptom of the bigger problem. I think police officers feel like they are in the military during a war and all citizens are potentionally insurgents. This is what fear does.

     

    reply to this | link to this | view in thread ]

  21.  
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    That One Guy (profile), Aug 22nd, 2012 @ 7:14pm

    Re:

    Now, if any of that was actually enforced, it might actually matter.

    As things stand currently... might as well not even be in the books.

     

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  22.  
    identicon
    Anonymous Coward, Aug 22nd, 2012 @ 7:36pm

    Re: Govt. Current Legal Logic

    Actually we are taking pictures of the Terrorists. Smile officer.

     

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  23.  
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    btr1701 (profile), Aug 22nd, 2012 @ 7:44pm

    Re: Re: Re: Re: 9-11

    > So don't be saying someone shouldn't be taking pictures of
    > something just because you don't see the artistic nature.

    Wow, you folks are really trying desperately to put words in my mouth and pretend I said something I didn't.

    I never claimed people shouldn't be taking pictures of security apparatus, just that it *can* be indicators of pre-op surveillance and that any well-trained security force will be alert to that and take steps to gather further information, either overtly or covertly.

     

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  24.  
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    btr1701 (profile), Aug 22nd, 2012 @ 7:50pm

    Re: Re: Press

    > That is, "What are you doing, and WHY is it necessary?"

    I'm under no obligation to answer a reporter's questions. In fact, the opposite is true. It's my agency policy to not speak to reporters. Any time a reporter tries to ask me questions, I refer him to the agency's public affairs department.

    > you ignored the phrase "whenever possible," since assisting the
    > press is not possible when an officer is actively performing their duties.

    Irrelevant, really. When I'm on duty, I *always* have something better to do than help reporters do their jobs. Even if I'm just standing a post, maintaining general observation of a secure area, I'm not interested in, nor am I required to help reporters out. It's not my job to be a press aide regardless of what else I do or do not have going on at any given moment.

    I don't help cabbies do their jobs; I don't help teachers do their jobs; I don't help garbage men do their jobs; I don't help store clerks do their jobs. Why would I need or want to help a reporter do his job? if I wanted to be a journalist, I wouldn't have gone into law enforcement.

     

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  25.  
    identicon
    Anonymous Coward, Aug 22nd, 2012 @ 7:51pm

    Re:

    And yet it still isn't illegal, no matter how much they insist that it must be.

     

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  26.  
    identicon
    Anonymous Coward, Aug 22nd, 2012 @ 7:54pm

    Re: Re: Re: Press

    Guess you didn't read the article before posting. Here, I'll link it for you, again. http://blogs.nppa.org/advocacy/files/2011/11/NYPD-Finest-message.pdf

     

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  27.  
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    btr1701 (profile), Aug 22nd, 2012 @ 7:54pm

    Re: Illegal photography

    > My sister did an art project on bridges and she was
    > prohibited from taking photos of bridges

    They didn't have the legal authority to prohibit her from taking a picture of a bridge. They may have told her that, but her 1st Amendment right trumps whatever law they made up in their heads on the spot. Those signs mean less than nothing legally. They're just there to fool people into complying who don't know what their rights actually are.

     

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  28.  
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    btr1701 (profile), Aug 22nd, 2012 @ 7:59pm

    Re:

    > I've noticed that locally "to serve and protect" has disappeared
    > from police car emblems. I don't know if that's true everywhere.

    It never was everywhere. It's the motto of the LAPD. Some departments copied it and used it for their motto, too, but it was hardly everywhere.

    Nor is 'to serve and protect' part of the police oath of office, contrary to what many people falsely believe. Most (probably all) police, local, state, and federal, don't swear an oath to protect the citizens at all. They take an oath to support and defend the Constitution, not the people.

     

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  29.  
    identicon
    Anonymous Coward, Aug 22nd, 2012 @ 9:12pm

    Re: Re: Re: Press

    which laws are you enforcing when you harass someone taking some pictures?

     

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  30.  
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    Anonymous Coward, Aug 22nd, 2012 @ 9:16pm

    Re:

    police have one job: to bust you

    when you're a hammer....

     

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  31.  
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    G Thompson (profile), Aug 22nd, 2012 @ 9:26pm

    Re: Re:

    POLICE - Protection Of Law In Community Environs

    Police are there to protect the law from being breached, the courts are there to Uphold any breaches, the Govt is there to make the law.. the citizens? They are there to OBEY the law

    any questions? What? you do? right then.. off to re-education pod #376 with you laddy!

    [Actually the above other than the pod is very correct]

     

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  32.  
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    Andrew D. Todd, Aug 23rd, 2012 @ 1:33am

    Re: Govt. Current Legal Logic

    Well, I don't know about countries considering themselves "Homelands," but under the South African "Apartheid" regime, prior to its collapse in 1991-94, "Homeland" was a synonym for "Bantu-stan," impoverished remote rural areas which blacks and other non-whites were considered to be citizens of, and which they were deported back to at regular intervals. A "Homeland" is a prison by any other name.

     

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  33.  
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    meddle (profile), Aug 23rd, 2012 @ 3:00am

    Re: Re: Re: Re: Press

    Thank. I read it just fine, and apparently understood it. It says cooperate. Cooperate != assist.

     

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  34.  
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    Yawgmoth, Aug 23rd, 2012 @ 3:01am

    If filming police were ever to become illegal, the tv show COPS would sure be in alot of trouble. It might stop a certain gaming network from airing constant episodes....

     

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  35.  
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    Ninja (profile), Aug 23rd, 2012 @ 3:54am

    Oh but they already have the means to arrest any photographer. It's called NDAA and it can be indefinite =)

     

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  36.  
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    The Groove Tiger (profile), Aug 23rd, 2012 @ 7:56am

    Re: Re: Re: Re: Re: 9-11

    Well, you did insult his artistic sense by saying "you must have a very low threshold for 'interesting'".

     

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  37.  
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    The Groove Tiger (profile), Aug 23rd, 2012 @ 8:02am

    Re: Re: Re: Re: Re: Press

    "Because the public receives much of this access through the news media, members of the service must ensure that Department procedures which provide for cooperation and assistance with press personnel and which allow press personnel to access the scenes of incidents are carefully followed."

    ...

    "Patrol Guide Section 212-77
    It is the policy of this Department to keep the community informed on matters of public interest. Most media inquiries are directed to the Office of the Deputy Commissioner, Public Information. However, at the scene of a breaking news story, the media may request information from members of the service present at the scene. Information, assistance or access should be rendered to whatever extent possible, in accordance with the following procedure..."

     

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  38.  
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    meddle (profile), Aug 23rd, 2012 @ 8:46am

    Re: Re: Re: Re: Re: Re: Press

    I stand corrected. They seem to use cooperate and assist interchangeably.

     

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  39.  
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    Dave, Aug 23rd, 2012 @ 12:00pm

    Contagious

    Same here in the UK, although reports seem to have died down a bit (apart from feisty Olympic so-called security staff leaving the premises they were supposed to be looking after and attempting to stop people taking pictures near the Olympic stadium on public areas and roads). There have been numerous well-documented examples in the past of UK police detaining photographers (illegally) in public places, deleting their photographs and more-or-less making up their own new "laws" as they go along. In one case near me, where the person concerned was arrested under section 44 of the terrorism act, whilst taking pictures of shops and the demolition of an old fly-over after an altercation with some unidentified council officials demanding identification (which, of course they had absolutely no authority to do and subsequently called the police for no valid reason), the arrest was deemed to be unlawful by the relevant Police complaints body after a complaint was lodged. The Chairman of the Association of Chief Police Officers also issued a letter in 2010 to all forces clarifying the situation that photography in a public area is not to be stopped and police have no powers to do so or delete images. Interesting article here for any UK readers here, which also includes links to PDF'S of the letter and force policy:
    http://www.epuk.org/Resources/958/police-photographers-and-the-law

     

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  40.  
    identicon
    Dave Nelson, Aug 23rd, 2012 @ 12:07pm

    Re: Re: Re: Re: 9-11

    In the same sense that locks keep out the honest people. Anyone that really wants the photos or videos will obtain them by stealth and no one will know. Camers optics and sensors are tiny now, and can be hidden almost anywhere.

     

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  41.  
    identicon
    btr1701, Aug 23rd, 2012 @ 12:37pm

    Re: Re: Re: Re: Press

    > which laws are you enforcing when you harass
    > someone taking some pictures?

    That only becomes a legitimate question when you can show some instance when I've harassed someone taking pictures.

    Otherwise, it's just another dishonest variation on the old cliche "Do you still beat your wife?" question.

     

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  42.  
    identicon
    AnonCow, Aug 23rd, 2012 @ 12:42pm

    Post 9/11 Erosion of Freedoms

    As far as post-9/11 erosion of freedom goes, photography in public and/or of police is a minor infringement compared to unwarranted surveillance and wiretaps.

    Unwarranted surveillance is in DIRECT contravention to the Fourth Amendment.

     

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  43.  
    identicon
    btr1701, Aug 23rd, 2012 @ 12:43pm

    Re: Re: Re:

    > POLICE - Protection Of Law In Community Environs

    Wow, that's cute. Meaningless, but cute.

    > Police are there to protect the law from being
    > breached

    Actually, they're not. Police are reactionary. In the vast majority of cases, they show up after a crime has been committed, collect evidence, and find the perpetrator so he/she can be prosecuted. The police are not a protective operation and if you expect the cops to stop someone ahead of time from committing a crime against you, you'll likely be sorely disappointed. The few times the police are able to stop crimes before they happen, is mostly the result of luck more than anything else.

    > the citizens? They are there to OBEY the law

    Really? You think your only purpose on this planet is to obey laws? How sad for you.

     

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  44.  
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    Anonymous Coward, Aug 23rd, 2012 @ 5:37pm

    United States is really a police state!

     

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  45.  
    identicon
    Phoenix Photographer, Apr 11th, 2013 @ 6:06pm

    I agree

    People harass me all the time about photographing on railroad tracks, active or not!

     

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  46.  
    identicon
    Wayne, Apr 18th, 2013 @ 12:49am

    Boston

    Maybe after Boston the will lighten up since photos from people are helping them solve the crime

     

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