No 1st Amendment right to photograph accident scene

Monday, August 30, 2010

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If you travel to Guam, don’t take pictures of the police on public streets. Don’t assume that there is a First Amendment right to photography. That appears to be one lesson from a recent federal district court decision that found no clearly established right to take pictures of police on public highways.

In October 2009, two Guam police officers ordered James L. Adkins out of his car after they noticed he was taking cell-phone pictures of an accident on a public street in Tamuning, Guam, a U.S. territory. The officers stopped Adkins’ car and told him he could not take pictures.

Adkins allegedly responded that “there is nothing wrong with taking pictures.” The officers then ordered him to turn over the phone. After he refused, they handcuffed him and took him to the Hagatna police station where he was booked, fingerprinted and photographed. They took his cell phone and never returned it.

Releasing Adkins after four hours, police gave him a notice to appear in court on two charges: “obstructing governmental function” and “failure to comply.” The first law says a person commits a misdemeanor if he or she “intentionally obstructs, impairs or perverts the administration of law or other governmental function by force.” The second law says, “It shall be unlawful for the operator of any motor vehicle to refuse to comply with any lawful order … of a peace officer who shall be in uniform and shall exhibit his badge or other sign of authority.”

Adkins filed a lawsuit in federal court, alleging 11 different causes of action against the two officers and other defendants. One of those claims was that the officers infringed on his First Amendment rights by prohibiting him from taking pictures on public property.

The officers countered that the free-speech claim should be dismissed because the officers were entitled to qualified immunity — a doctrine that says government officials are immune from lawsuits stemming from their official duties unless they violate clearly established constitutional or statutory law.

Adkins argued in his legal papers that defendants violated his clearly established First Amendment right to take “photographs in his car on a public road.” U.S. District Judge Frances M. Tydingco-Gatewood of the District of Guam ruled that the officers were entitled to qualified immunity on the First Amendment claim in her Aug. 24 opinion in Adkins v. Guam Police Department.

Tydingco-Gatewood cited a federal district court case from California, Chavez v. City of Oakland (N.D. Cal. June 2, 2009), in which it was determined that a newspaper photographer did not have a First Amendment right to take pictures on a public highway.

The judge acknowledged that “a few courts have held that a citizen has a First Amendment right to take such photographs, subject to reasonable time, place and manner restrictions.” But she noted that those cases were not in the 9th Circuit, which includes Guam.

“The limited case law hardly evokes a sense of consensus on the issue, let alone establish a First Amendment right to take photographs of an accident scene,” Tydingco-Gatewood wrote.

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