This is actually quite old news but I never posted it on advice from my lawyer.
The Story
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 other 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 wallet 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.
The Result
The ACLU agreed to take the case but my lawyer was incredibly savvy so I decided to stick with him.
The day of court, my lawyer walks up to me and says "you're not going to believe this."
I had asked that the video from the scene be subpoenaed, I requested the EMT
Thursday, January 16, 2014
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.
----[%notes%]----
* 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.
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.
----[%notes%]----
* 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.
Thursday, September 13, 2007
Once More Into the Fray
This is such old news by now but Dave -- long time commuter, lifelong American snapshooter -- pointed out that the MBTA publishes 3D floorplans of their major stations.
Listen up, nefarious bombers and assorted ne'er-do-wells! Why expose your mug to a security camera when you can get far more useful information (anonymously, too) straight from Grabauskus?
I like to carry around a few pages. It leaves a nice impression on the "it's a necessary security precaution" types.
Also, some of you may have heard the MBTA has officially changed their policy on photography. They didn't tell anyone, they just changed it, so expect the rank and file to be largely clueless and stubborn as ever.
The policy itself doesn't even appear on the MBTA website, you have to weed through the MBTA Police website to find it.
For whatever reason the keystone cops forgot to include "no flash" which, oddly enough, IS a reasonable limitation.
Listen up, nefarious bombers and assorted ne'er-do-wells! Why expose your mug to a security camera when you can get far more useful information (anonymously, too) straight from Grabauskus?
I like to carry around a few pages. It leaves a nice impression on the "it's a necessary security precaution" types.
Also, some of you may have heard the MBTA has officially changed their policy on photography. They didn't tell anyone, they just changed it, so expect the rank and file to be largely clueless and stubborn as ever.
The policy itself doesn't even appear on the MBTA website, you have to weed through the MBTA Police website to find it.
For whatever reason the keystone cops forgot to include "no flash" which, oddly enough, IS a reasonable limitation.
Wednesday, May 16, 2007
Friendly Press, W00T!!
Steven Stites with BostonNOW has written an article about the harassment photographers face on the MBTA
Here's a scan of the printed copy.
The web version (with one of my panoramas, no less).
Stites did a great job writing the article but his editors apparently mashed it, like a pot of overcooked pasta, into something less intelligible than Steven's original. Thankfully, the web version does not have this problem.
Suffice it to say that the MBTA draft policy does, indeed, permit photography with some minor caveats.
So big thanks to BostonNOW -- and Steven Stites in particular -- for taking the time to address this issue.
Now we just need to get the MBTA to actually tell their employees that photography is allowed...
Here's a scan of the printed copy.
The web version (with one of my panoramas, no less).
Stites did a great job writing the article but his editors apparently mashed it, like a pot of overcooked pasta, into something less intelligible than Steven's original. Thankfully, the web version does not have this problem.
Suffice it to say that the MBTA draft policy does, indeed, permit photography with some minor caveats.
So big thanks to BostonNOW -- and Steven Stites in particular -- for taking the time to address this issue.
Now we just need to get the MBTA to actually tell their employees that photography is allowed...
Tuesday, March 20, 2007
Without a Shot Being Fired
Photography is protected by the 1st Amendment of the U.S. Constitution. It also happens to be protected by the 16th Article of the Massachusetts Constitution. Nobody in their right mind would entertain the idea of applying for a permit to associate with their friends. Not in America. At least not yet.
For the same reason, I did not apply for an application to take photographs on the MBTA. It's a civil right. It's already mine.
After being stopped and interrogated by MBTA police for photography in the subway last month, after weeks of hounding the MBTA to actually disclose, in writing, what their policy IS on photography on the subway without a permit, after a dozen (or so) unanswered emails and about as many unreturned phone calls, this morning I spoke to Mary Logalbo, an MBTA lawyer. She specializes in Constitutional law.
Apparently Mrs. Logalbo obtained permission from the MBTA Deputy Police Chief Paul MacMillan to fax me a DRAFT COPY of their photography policy. It expressly allows amateur photography on the MBTA but requires that you provide ID upon request, photography of the subject cannot pose a security risk, the activity of shooting cannot disrupt MBTA operations and the pictures must be for strictly non-commercial use only.
No more background check.
No more one-month expiration.
John Reinstein and the ACLU deserve a lot of credit for forcing the MBTA to reconsider the policy and put it on legally defensible footing. Note the "original issue date" of 2006 -- this policy was likely written in response to Reinstein's letter to MBTA Police Chief Joseph Carter in June of that year. All my yapping did, I suspect, is get me a copy of the draft before anyone else.
You can find a copy of the draft policy here.
For the same reason, I did not apply for an application to take photographs on the MBTA. It's a civil right. It's already mine.
After being stopped and interrogated by MBTA police for photography in the subway last month, after weeks of hounding the MBTA to actually disclose, in writing, what their policy IS on photography on the subway without a permit, after a dozen (or so) unanswered emails and about as many unreturned phone calls, this morning I spoke to Mary Logalbo, an MBTA lawyer. She specializes in Constitutional law.
Apparently Mrs. Logalbo obtained permission from the MBTA Deputy Police Chief Paul MacMillan to fax me a DRAFT COPY of their photography policy. It expressly allows amateur photography on the MBTA but requires that you provide ID upon request, photography of the subject cannot pose a security risk, the activity of shooting cannot disrupt MBTA operations and the pictures must be for strictly non-commercial use only.
No more background check.
No more one-month expiration.
John Reinstein and the ACLU deserve a lot of credit for forcing the MBTA to reconsider the policy and put it on legally defensible footing. Note the "original issue date" of 2006 -- this policy was likely written in response to Reinstein's letter to MBTA Police Chief Joseph Carter in June of that year. All my yapping did, I suspect, is get me a copy of the draft before anyone else.
You can find a copy of the draft policy here.
Friday, March 16, 2007
Desperately Seeking Clarification
On March 9th, I sent an email to the head of the customer support department and the legal counsel for the MBTA that specializes in Constitutional law.
No reply.
Wednesday, March 14th, I sent it again but this time adding MBTA press secretary.
This is the exchange that resulted.
Two of the twelve photos on my photography website are from the subway. Two is a lot? And what gives him the idea my focus is the "infrastructure?"
A strange reply to say the least.
It's also interesting to note that he didn't "reply to all." I included everyone in my reply.
Raise some eyebrows? ... Really??
A short quiz for Don Quixote...
If Joe thinks that my behavior looks anything like what suspicious behavior looks like, I'm grateful he's behind a desk.
But still, he is a senior spokesperson for the MBTA and that last line sure is interesting! It's going to baffle whoever stops me next.
In all my note-taking, I apparently confused Joe with William Mitchell. Mr. Mitchell is the head of the legal department. Mr. Pesaturo is the MBTA Press Secretary.
...and then the replies stopped. Huh.
So I sent a followup.
No reply.
Wednesday, March 14th, I sent it again but this time adding MBTA press secretary.
This is the exchange that resulted.
| sent: March 13, 2007 6:09PM from: Jason to: jpesaturo@mbta.com, kmckinney@mbta.com, mlogalbo@mbta.com, chowze@mbta.com subject: Photography Absent a Permit |
| Greetings, My name is Jason Desjardins, I'm a local photographer. Over the last several years, I've been told -- depending on which MBTA employee I talk to -- that photography on the subway is "illegal," "against MBTA rules," "criminal" and just two weeks ago, a "federal offense." One officer insisted the policy was clearly posted in various stations and broadcast over the intercom system, though I can honestly say I've never seen or heard it. On non-MBTA websites I've found information suggesting that a permit is required but I feel that being forced to re-request a new permit every month and the process of undergoing a (criminal?) background check is unnecessarily burdensome, and so I will not be seeking one. I've also checked the MBTA website by searching for "photography." Three links result; two for submitting and updating a company profile (presumably for advertising purposes) and one regarding commercial filming. This last link only references photography by saying it must not portray the MBTA in a negative light. In other words, it appears that the MBTA has no clear, written and publicly available policy on non-commercial, amateur photography. I am requesting an official communication from the MBTA on what, precisely, the MBTA policy is on photography without a permit. Sincerely, |
| sent: Mar 14, 2007 10:06 AM from: Joe Pesaturo <jpesaturo@mbta.com> to: Jason subject: Re: Photography Absent a Permit |
| It appears that you want to take a lot of pictures of the public transportation infrastructure in Greater Boston. May I ask why? |
Two of the twelve photos on my photography website are from the subway. Two is a lot? And what gives him the idea my focus is the "infrastructure?"
A strange reply to say the least.
It's also interesting to note that he didn't "reply to all." I included everyone in my reply.
| sent: Mar 14, 2007 10:41 AM from: Jason to: jpesaturo@mbta.com, kmckinney@mbta.com, mlogalbo@mbta.com, chowze@mbta.com subject: Photography Absent a Permit |
| Hi Joe, thanks for the reply. I don't understand the purpose of the query. Surely MBTA policy on photography is independent of the reasons I, personally, create my art. Please provide a copy of your policy regarding photography on the MBTA without a permit. Thanks, |
| sent: Mar 14, 2007 10:44 AM from: Joe Pesaturo <jpesaturo@mbta.com> to: Jason subject: Re: Photography Absent a Permit |
| Actually, the question is key to this matter. No one should be spending long periods of time photographing elements of the public transportation infrastrcutre. Of course, that's going to raise some eyebrows. MBTA personnel and police use their discretion in each instance. |
Raise some eyebrows? ... Really??
A short quiz for Don Quixote...
| Imagine you are an al Queda cell member casing the MBTA for good spots to plant explosives. Q. Your photograping technique should be: (a) Discretely photograph subway exits, entrances and support structures using a small, inexpensive 2 megapixel camera roughly half the volume of a deck of playing cards when few if any people are present or paying attention. (b) Openly photograph pretty much anything using a dSLR bigger than a large Dunkin Donuts iced coffee and a mechanical shutter audible for at least fifteen feet. Seek out clusters of people. Crowds are better. Q. Your "visibility" should be: (a) Blend in. Appear friendly but do not engage in unnecessary conversation. Do not draw attention to yourself. (b) Repeatedly call and email the MBTA legal department for information about their photography policy. Provide your real name. Q. If your photography is discovered and you are confronted: (a) Appear embarrassed, act like a tourist. Put the camera away and apologize. (b) Loudly proclaim your right, by law, to photograph in public areas. Attract as many cops as you can. |
If Joe thinks that my behavior looks anything like what suspicious behavior looks like, I'm grateful he's behind a desk.
But still, he is a senior spokesperson for the MBTA and that last line sure is interesting! It's going to baffle whoever stops me next.
| sent: Mar 14, 2007 12:02 PM from: Jason to: jpesaturo@mbta.com cc: kmckinney@mbta.com, mlogalbo@mbta.com, chowze@mbta.com subject: Photography Absent a Permit |
| "Actually, the question is key to this matter. No one should be spending long periods of time photographing elements of the public transportation infrastrcutre. Of course, that's going to raise some eyebrows. MBTA personnel and police use their discretion in each instance." If the official stance on photography is that each circumstance is discretionary, and to be evaluated by the individual employee, your staff and police seem to not be aware of it. On February 27th, I was stopped at the Harvard station and told that photography was "against MBTA rules" (CSA #5248 and Officer #545) and a "federal crime" (CSA #6995). In fact, I've been stopped many times while on the T and two things have been true for 100% of these encounters; first, the stated policy is "no photography, ever" and second, my motives have never been queried. Just this morning, one of my coworkers told me that last night, while exiting the Downtown Crossing train around 5:30PM, the intercom system broadcast, "Please passengers, be advised that the use of photo cameras are extremely prohibited in the MBTA facilities." So if I understand you properly, two things are true. • There is no written MBTA policy on amateur photography without a permit and; • Amateur photography is not banned outright. Each circumstance is discretionary. If both of these are correct, I'd appreciate a fax or letter on MBTA letterhead with this information to help avoid problems in the future. Joe, I appreciate your efforts as head of MBTA counsel to help clarify the policy. I would like to suggest that distributing this information to your employees might be prudent. Thanks, [fax # redacted] [home address redacted] |
In all my note-taking, I apparently confused Joe with William Mitchell. Mr. Mitchell is the head of the legal department. Mr. Pesaturo is the MBTA Press Secretary.
| sent: Mar 14, 2007 12:12 PM from: Joe Pesaturo <jpesaturo@mbta.com> to: Jason subject: Re: Photography Absent a Permit |
| Actually, I'm just the press secretary, not a lawyer. |
| sent: Mar 14, 2007 12:20 PM from: Jason to: jpesaturo@mbta.com cc: kmckinney@mbta.com, mlogalbo@mbta.com, chowze@mbta.com subject: Photography Absent a Permit |
| My apologies, I got you mixed up with William Mitchell. As press secretary, I imagine you're still authoritative on MBTA policy. Should I expect that communication by fax or by USPS mail? Thanks, |
...and then the replies stopped. Huh.
So I sent a followup.
| sent: Mar 14, 2007 12:20 PM from: Jason to: jpesaturo@mbta.com cc: kmckinney@mbta.com, mlogalbo@mbta.com, chowze@mbta.com, ctimberlake@mbta.com, wmitchell@mbta.com subject: Photography Absent a Permit |
| Hi Joe, Yesterday, in our email exchange (Mar 14, 2007 10:44 AM), you indicated that photography without a permit is not forbidden on the subway system but instead a matter of individual MBTA personnel discretion. As I mentioned, in every encounter I've had with MBTA staff, photography has been strictly forbidden. This is why I requested a copy of your policy on MBTA letterhead. I haven't heard anything back from you on this request. As I'm sure you can imagine, I'm anxious to avoid the same problem I encountered on Feb. 27th. I was stopped, detained for roughly 30-40 minutes, and told in no uncertain terms that photography was strictly verboten. One CSA insisted photography on the subway was a "federal crime." Both MBTA officers were adamant that photography was never allowed without a permit, this policy appeared on signage and was also broadcast through the subway system intercom. In any case, "why" or "what" I was photographing never came up. Obviously a copy of your policy would have been very useful. Again, a copy of your policy regarding photography without a permit on MBTA letterhead, by fax (617-868-1120) or by USPS mail (see address below), would be very much appreciated. Please reply to this email to let me know the status of this request. Sincerely, [address redacted] |
Saturday, March 3, 2007
Another Run-In
Had another legally dubious encounter with the MBTA. This time with a few police officers.
After exiting the Red Line car at Harvard station I was stopped by an MBTA employee with a walkie-talkie and told to stop taking pictures. My ID was requested. I refused the request and asked if I was being detained. He said detaining me was not within his power so I left the station and headed to work. After dropping off my laptop and bag, and explaining what happened, I returned to Harvard station to obtain the ID# of the employee who stopped me.
The employees provided their ID info but they also called the cops. I was told, in front of perhaps a half-dozen witnesses that shooting was illegal and, in fact, a "federal crime." I was informed I would not be allowed to take photographs and would be asked to leave if I did.
I was told by an MBTA police officer that the MBTA was "pseudo-public" property (it isn't, the MBTA is a public corporation), that the MBTA was an "authority" in the context of having rights that supersede my 1st Amendment and 16th Article right to freedom of expression (they don't), that the MBTA is not public property since it "does not receive all of its funding from taxes" but the same argument could be made for the government itself (they also receive income from fines and permits, for example).
Finally, he insisted the MBTA policy against photography was a written one. It isn't and it's a simple matter to verify for yourself.
My property was seized while I was not under arrest. This is both illegal and pretty stupid because if I were a terrorist -- and that notebook contained, say, my bomb-planting spots -- it would now be inadmissible.
I was told that the action of taking pictures, asking for employee ID numbers of the staff I interacted with and being on private property were all "reasonable suspicion" to compel production of an ID upon demand.
On advice from counsel, I will not relate the exact, gory details of the full event. The particulars were immediately recorded and the transcript was sent to the ACLU. And this all took place smack-dab in the middle of the Harvard subway station atrium which is downright spilling over with cameras, I'm sure, so I don't expect there will be much argument over the facts.
More later.
After exiting the Red Line car at Harvard station I was stopped by an MBTA employee with a walkie-talkie and told to stop taking pictures. My ID was requested. I refused the request and asked if I was being detained. He said detaining me was not within his power so I left the station and headed to work. After dropping off my laptop and bag, and explaining what happened, I returned to Harvard station to obtain the ID# of the employee who stopped me.
The employees provided their ID info but they also called the cops. I was told, in front of perhaps a half-dozen witnesses that shooting was illegal and, in fact, a "federal crime." I was informed I would not be allowed to take photographs and would be asked to leave if I did.
I was told by an MBTA police officer that the MBTA was "pseudo-public" property (it isn't, the MBTA is a public corporation), that the MBTA was an "authority" in the context of having rights that supersede my 1st Amendment and 16th Article right to freedom of expression (they don't), that the MBTA is not public property since it "does not receive all of its funding from taxes" but the same argument could be made for the government itself (they also receive income from fines and permits, for example).
Finally, he insisted the MBTA policy against photography was a written one. It isn't and it's a simple matter to verify for yourself.
My property was seized while I was not under arrest. This is both illegal and pretty stupid because if I were a terrorist -- and that notebook contained, say, my bomb-planting spots -- it would now be inadmissible.
I was told that the action of taking pictures, asking for employee ID numbers of the staff I interacted with and being on private property were all "reasonable suspicion" to compel production of an ID upon demand.
On advice from counsel, I will not relate the exact, gory details of the full event. The particulars were immediately recorded and the transcript was sent to the ACLU. And this all took place smack-dab in the middle of the Harvard subway station atrium which is downright spilling over with cameras, I'm sure, so I don't expect there will be much argument over the facts.
More later.
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