Monday, November 19, 2007

My MBTA Arrest

I contacted the ACLU about this, they offered to handle my defense but by the time that was arranged, I realized my public defender was the coolest, sharpest 85 year-old dude on the planet and I opted to stick with him.

The first section is my email to my lawyer, describing what transpired.

The second section is what happend during my day in court.

Section 1 - Description of Events

Upon arriving at Downtown Crossing via the orange line, I proceeded to the Red Line platform on my way Harvard Square. As I was walking down the platform a train arrived but I was unable to get past the people in front of me in time. Two officers -- one female and one male -- were directly in front of me and when they noticed another girl rushing to catch the train, they moved aside. I missed the door by about five steps.

I bring this up because either of these officers would be likely to remember me and verify that I was not loitering on the tracks, letting trains pass while I remained to take pictures.

After the subway car passed I noticed a large number of emergency personnel -- some police, some EMT, some firemen -- on the platform heading in the opposite direction. To put this in perspective, between myself and the emergency itself was a train track, a dividing line of pillars and another train track. My position was perhaps 50-60ft away.

I observed the scene for a moment thinking it was perhaps a heart attack. Just being like every other MBTA rider thinking "wow, it must suck to be that person." The two officers who I had just passed were looking down the platform in my general direction as if they were searching for something. After about 60 seconds, one of them seemed startled by the scene across the tracks and motioned to the other officer as if to say "that's what we're looking for." These two officers communicated something to the officers near the incident and the officer near the incident replied back with "no transmission. No transmission down here."

During this exchange, one of the offices on the other platform said "stabbing." One of the officers near me said "we'll keep looking."

I know two people who work at BostonNOW and while I had no interest in taking a picture of a person taking a heart attack, when I heard "stabbing" I thought "news." I did not take my camera from my shoulder until this point.

I know I'm legally allowed to take pictures of whatever I want (with some exceptions such as private areas, etc.) but I do recognize an ethical standard as well. I'd NEVER have even lifted my camera anywhere *near* the victim for example. From my perspective I couldn't even see an inch of the victim, just a throng of EMTs and emergency equipment. The next thought that occurred to me is "what am I trying to say as a photographer?" and the answer to that question was not to get closer to the victim since I was interested in the scene as a whole. I certainly could have moved closer by going to the othe platform if that's what I wanted.

I began to take pictures using a 24mm lens (which translates to 36mm on the APS sensor on my Nikon D50) which is actually FURTHER away than normal vision (which is about 50mm). To phrase it a bit differently, if I was 60ft away, my camera was capturing what an observer roughly 83ft away would see.

Within about thirty seconds an officer from the other platform motioned to me that I should stop taking pictures. I didn't quite know how to phrase "no" politely so I said something along the lines of "I'm sorry but no." Roughly thirty seconds after this exchange an officer appeared to my right and instructed me to stop taking pictures. I declined with similar language. Again, he instructed me to stop shooting and again I declined.

I was not at all rude, I simply declined to cease taking pictures. I was not asked to move to another location, I was simply told that I could not take pictures.

Around this time I volunteered my identification to the officer two or three times and removed my walled to make that ID available. The officer did not express any interest in seeing the ID.

The officer then said that if I didn't stop taking pictures I would be removed from the station. I replied that I would not cease my photography and that photography was, in fact, a civil right and an activity explicitly allowed on their own MBTA Transit Police website and requested for a supervisor to be called. The officer then took me by the arm, lifted it sharply and walked me back toward the entrance.

A few months back, a friend and I were talking about the legal angles on being arrested for photography on the subway. One thing he mentioned was that resisting an unlawful order from an officer was not legal except in instances involving Constitutional (civil) rights. The friend added that even though my concern was with a civil right, he strongly recommended against resisting arrest.

As soon as the officer took me by the arm, the very first thing that went through my mind was "do not turn away or resist in any way." I was immediately aware that I was on sound legal footing in taking pictures in a public place and I did not want to do anything that would undermine that position. On the other hand, I was very much expecting that a supervisor would be called and arrest was not imminent.

I want to be extremely clear on this point. I did not, at any time at all, physically resist the officer. When he took me by the arm, I complied. This did not keep the officer from putting my arm in a painful position and marching me back toward the entrance. During this walk I repeatedly said, loudly, that I was not resisting arrest, that such force was not necessary and that I wished for a supervisor to be called. Despite not presenting any threat to the officer or anyone else, despite my compliance with the officer's orders, the officer continued to increase his use of force by cranking my arm upward.

At several points, in response to my requests for him to use less force and call a supervisor, the officer increased pressure on my arm and said "shh" several times. In other words, the officer was using painful force to silence me.

When we arrived at the main entrance the officer instructed me to leave the station and pointed toward the exits past the turnstiles. I declined and again asked for a supervisor to be called. The officer repeated his command for me to leave the station and again I declined and once again requested for a supervisor to be called. The officer placed me against the wall, moved my left arm behind me and cuffed my wrist.

Oddly enough, this is actually the point at which I realized I was in any real danger of being arrested. I have been approached by either MBTA personnel or police on roughly a dozen occasions demanding that I cease taking pictures. In each instance I held my ground and, at worst, the police came, grumbled and told me I had to take the next train or face charges of trespass. But I've never actually been arrested for doing so.

Specifically, I've been stopped at Park St perhaps a half-dozen times and Harvard around the same. It's fairly routine and kind of baffling that the MBTA police do not know their own policy.

Immediately after placing the handcuffs on, the officer instructed me to spread my legs. I did so without any hesitation but that didn't prevent the officer from kicking my legs apart. By now several officers had arrived and were standing around. Again, I requested a supervisor to be called to the scene. One officer (I believe it was not the officer making the arrest) said from behind me "you're under arrest, you don't get to make any requests."

I turned to my left and observed two officers approx. ten to fifteen feet away with my camera and while I could not see the screen, they appeared to be flipping through the images and commenting on them.

I was not read the Miranda Warning at this time. I was also not asked any questions at this time.

All told, I requested that a supervisor be called to the scene between two and three dozen times. This is a very conservative estimate. If I had to hazard a guess, I would say it was closer to 4-5 dozen times since I was saying it almost nonstop. At one point the arresting officer noted that his supervisor was at the emergency scene but did not contact him or request his presence at any time.

I asked the arresting officer the charge for which I was being arrested. He replied "trespassing." I replied, "I wasn't trespassing, I paid the fare and was heading to Harvard Station." He did not reply.

When I complained that the left cuff was cutting into my wrist the officer replied "they're not meant to be comfortable." A few minutes later I repeated myself and the officer also repeated himself. Four hours after the arrest I still have ligature marks on my left wrist. I have had three instances of Deep Vein Thrombosis (DVT) since December of 2001. I did have a concern about the cutting off of circulation but since all my requests were met with being interrupted and increased pressure on my arm, I had no reason to believe that explaining this to the officer might actually result in the handcuffs being loosened.

This conversation took place as I was being led out of the station in handcuffs:

"Photography is a civil right and it's clearly stated on your own website."
"What about the rights of the (injured) woman?"
"Well, there is freedom of the press..."
"Are you press?"
"Massachusetts does not have a legal standard for who qualifies as press so yes, we all are."

The officer then stopped answering my questions. As we emerged from the station, the arresting officer made the comment, "How do you like it when someone won't answer your questions?" I guess in his mind there is pride, somewhere, in being stumped.

I was placed into a PD truck and driven to the police station. There I was read the Miranda Warning and asked if I understood what the officer had stated. I replied "yes." I also explained my DVT history to the booking officer.

To their credit, EVERYONE at the Police station was quite nice. The officer who handled my booking let me make a few phone calls, get some water, etc. The officer who released me actually put up $40 out of his own pocked since the bail bondsman poked her head in but would leave before my friends came to post the $40.


* Why did the officer not accept my offer to show him the MBTA policy on photography?

* Why did the officer use physical force not to effect compliance with the arrest but to elicit silence. While I do not have any documentation from the MBTAPD, another PD document (when_stopped_by_police.pdf) states "Generally, a police officer will only use the force necessary to effect the arrest of a suspect and to maintain the custody of a prisoner."

* The officer did not contact his supervisor despite being asked repeatedly. I'm assuming that this failure is in violation of MBTAPD policy but as of this writing, I cannot be sure since I do not have access to MBTA policy on this issue.

* The officer was specifically informed of my rights under Article 16 of the Massachusetts Constitution and chose to ignore them.

* If the scene is of a newsworthy event, are my Constitutional protections strengthened?

Section 2 - Court Events

I met my lawyer at his office in Boston and the first thing he says to me is basically "sit down, you're not going to believe this."

Apparently the arresting officer signed an affidavit saying that the stabbing victim was so outraged by my actions that she began "urinating and defecating upon herself." It was a good thing my lawyer asked me to sit down.

The sequence of photos I took were happening as fast as my card could store the information. This sequence, when viewed in succession, look like a stop-motion movie. You would think that if a stabbing victim were upset by the presence of a photographer a few dozen meters away, and they were urinating and defecating upon themselves, those around the victim would be looking right at the cause of the victim's reaction. In fact that's clearly not the case and the pictures are the proof.

Not only was the victim not reactive to my presence, the victim was entirely unaware of my presence and, in fact, they could not see me and I could not see them. At all.

I was, to say the least, floored. The cop had lied under oath to cover his own ass. Not only did he lie under oath but he claimed that I did something that was morally detestable. If a victim of a crime was upset by my presence I would have stopped. It's as simple as that.

Further, through my lawyer, I requested that the prosecution provide testimony from the emergency crew and video taken from MBTA surveillance cameras of the incident. You would think that if what the officer said was true, the last thing I would want to be presented at trial would be EMS testimony and security camera footage.

My lawyer and I proceeded to court. It was during this time we learned that the EMS testimony and video footage we requested was not supplied by the prosecution.

Imagine that.

The judge studied the details of the case a bit, looked up and asked the prosecution what law I had violated. The prosecution appeared disorganized, waffled for a moment. My lawyer interjected, "None, your honor, here is their own policy on photography."

The judge examined the provided policy, again queried the prosecution who offered nothing to support their case.

"Dismissed, court fees of $400." I was glad to be exonerated but not exactly thrilled; I had been arrested, I had been jailed, I had been slandered, I had lost income from work lost and here I was, paying a $400 bill while the officer and his lies did not have to answer for anything.

We started to exit when the judge spoke up.

"One minute. Can I see those photos?"

Oh boy. I could only see this getting worse. The judge looked over the photos. Every single photo I took was entered into evidence including a timestamp to show that there was no lapse in the sequence. After a few moments he looked up and started chewing out the prosecution.

"These pictures are excellent. You should be hiring this guy, not prosecuting him! Court fees reduced to $150."

We exited while the judge was still ripping the prosecution a new asshole.

No comments: