(rshsdepot) Re: Was Madison, NJ: Photography in public places

[Jay Underwood <jp.underwood_@_ns.sympatico.ca>]

I do apologize for the length of this post, but I thought the attached might be of
use to U.S. members concerned about their right to photograph from public
property...the lawsare not that much different between Canada and the U.S. although
in Canada we do not make much use of the coercian law that prevents harrassment from
security guards, that varies from province to province, depending upon the draft of
the Private Properties Act.
Jay Underwood
Elmsdale NS

The Photographer's Right

About this Guide - Confrontations that impair the constitutional right to make
images are becoming more common. To fight the abuse of your right to free
expression, you need to know your rights to take photographs and the remedies
available if your rights are infringed.

The General Rule - The general rule in the United States is that anyone may take
photographs of whatever they want when they are in a public place or places where
they have permission to take photographs. Absent a specific legal prohibition such
as a statute or ordinance, you are legally entitled to take photographs.
Examples of places that are traditionally considered public are streets, sidewalks,
and public parks. Property owners may legally prohibit photography on their premises
but have no right to prohibit others from photographing their property from other
locations. Whether you need permission from property owners to take photographs
while on their premises depends on the circumstances.
In most places, you may reasonably assume that taking photographs is allowed and
that you do not need explicit permission. However, this is a judgment call and you
should request permission when the circumstances suggest that the owner is likely to
object. In any case, when a property owner tells you not to take photographs while
on the premises, you are legally obligated to honor the request.

Some Exceptions to the Rule - There are some exceptions to the general rule. A
significant one is that commanders of military installations can prohibit
photographs of specific areas when they deem it necessary to protect national
security. The U.S.
Department of Energy can also prohibit photography of designated nuclear facilities
although the publicly visible areas of nuclear facilities are usually not designated
as such.
Members of the public have a very limited scope of privacy rights when they are in
public places. Basically, anyone can be photographed without their consent except
when they have secluded themselves in places where they have a reasonable
expectation of privacy such as dressing rooms, restrooms, medical facilities, and
inside their homes.

Permissible Subjects - Despite misconceptions to the contrary, the following
subjects can almost always be photographed lawfully from public places:
accident and fire scenes
children
celebrities
bridges and other infrastructure
residential and commercial buildings
industrial facilities and public utilities
transportation facilities (e.g., airports)
Superfund sites
criminal activities
law enforcement officers

Who Is Likely to Violate Your Rights - Most confrontations are started by security
guards and employees of organizations who fear photography. The most common reason
given is security but often such persons have no articulated reason. Security is
rarely a legitimate reason for restricting photography. Taking a photograph is not a
terrorist act nor can a business legitimately assert that taking a photograph of a
subject in public view infringes on its trade secrets.
On occasion, law enforcement officers may object to photography but most understand
that people have the right to take photographs and do not interfere with
photographers. They do have the right to keep you away from areas where you may
impede their activities or endanger safety. However, they do not have the legal
right
to prohibit you from taking photographs from other locations.

They Have Limited Rights to Bother, Question, or DetainYou - Although anyone has the
right to approach a person in a public place and ask questions, persistent and
unwanted conduct done without a legitimate purpose is a crime in many states if it
causes serious annoyance.
You are under no obligation to answer such questions in any state and do not have to
disclose your identity or the purpose of your photography.
If the conduct goes beyond mere questioning, all states have laws that make coercion
and harassment criminal offenses. The specific elements vary among the states but in
general it is unlawful for anyone to instill a fear that they may injure you, damage
or take your property, or falsely accuse you of a crime just because you are taking
photographs.
Private parties have very limited rights to detain you against your will and may be
subject to criminal and civil charges should they attempt to do so. Although the
laws in most states authorize citizen's arrests, such authority is very narrow. In
general, citizen's arrests can be made only for felonies or crimes committed in the
person's presence.
Failure to abide by these requirements usually means that the person is liable for a
tort such as false imprisonment.

They Have No Right to Confiscate Your Film - Sometimes agents acting for entities
such as owners of industrial plants and shopping malls may ask you to hand over your
film. Absent a court order, private parties have no right to confiscate your film.
Taking your film directly or indirectly by threatening to use force or call a law
enforcement agency can constitute criminal offenses such as theft and coercion. It
can likewise constitute a civil tort such as conversion. Law enforcement officers
may have the authority to seize film when making an arrest but otherwise must obtain
a court order.

Your Legal Remedies if Harassed - If someone has threatened, intimidated, or
detained you because you were taking photographs, they may be liable for crimes such
as kidnapping, coercion, and theft. In such cases, you should report them to the
police. You may also have civil remedies against such persons and their employers.
The torts for which you may be entitled to compensation include assault, conversion,
false imprisonment, and violation of your constitutional rights.

Other Remedies If Harassed - If you are disinclined to take legal action, there are
still things you can do that contribute to protecting the right to take photographs.

(1) Call the local newspaper and see if they are interested in running a story. Many
newspapers feel that civil liberties are worthy of serious coverage.
(2) Write to or call the supervisor of the person involved, or the legal or public
relations department of the entity, and complain about the event.
(3) Make the event publicly known on an Internet forum that deals with photography
or civil rights issues.

How to Handle Confrontations - Most confrontations can be defused by being courteous
and respectful. If the party becomes pushy, combative, or unreasonably hostile,
consider calling the police. Above all, use good judgment and don't allow an event
to escalate into violence.
In the event you are threatened with detention or asked to surrender your film,
asking the following questions can help ensure that you will have the evidence to
enforce your legal rights:
1. What is the person's name?
2. Who is their employer?
3. Are you free to leave? If not, how do they intend to stop you if you decide to
leave? What legal basis do they assert for the detention?
4. Likewise, if they demand your film, what legal basis do they assert for the
confiscation?

Disclaimer - This is a general education guide about the right to take photographs
and is necessarily limited in scope. For example, it does not cover important issues
such as publication and copyright.
For more information about the laws that affect photography, I refer you to my book,
Legal Handbook for Photographers (Amherst Media, 2002).
This guide is not intended to be legal advice nor does it create an attorney-client
relationship. Readers should seek the advice of a competent attorney when they need
legal advice regarding a specific situation.
© 2003 Bert P. Krages II
Attorney at Law
6665 S.W. Hampton Street, Suite 200
Portland, Oregon 97223
www.krages.com

END POSTING

CoolGuy127_@_aol.com wrote:

> In a message dated 7/12/2004 9:29:43 AM Eastern Standard Time,
> james.kelling_@_nara.gov writes:
> Great news, but can the station be photographed, considering the new NJT rule
> against photography?
>     First of all, I'm quite sure that the station can be photographed from
> public property, which -- NJ Transit admits -- does not require a permit.
>
>     Second, you can obtain a permit if you contact NJ Transit in advance.
>
>     Third, the policy is enforced only to the extent that an NJ Transit
> police officer happens to see you.  And even then, probably the worst thing that
> would happen is that you'd be told to stop taking more pictures.  As far as I
> know, the Madison station is patrolled by NJ Transit police only sporadically.
>
>             Daniel Chazin
>             Teaneck, NJ
>
>
> =================================
> The Railroad Station Historical Society maintains a database of existing
> railroad structures at: http://www.rrshs.org


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The Railroad Station Historical Society maintains a database of existing
railroad structures at: http://www.rrshs.org

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