MICKEY OSTERREICHER, General Counsel for the National Press Photographers Association, talks with NFOIC about how best to handle covering the police in the wake of the Occupy movement. Mickey shares some stories from his 40 years as a press photographer and offers advice for photographers and videographers.
Why is OG important?
It's important because there are so many people who want to come to meetings, who want to be able to record them and photograph them and without open government, open meetings laws… it's just so important for those who wish to come in and record and take pictures, to have open government to have open meeting laws. We find that even with those, people are still told they can't record or they can't take pictures and that's a problem because it's not truly open if they're telling people that they can only come in and observe but they can't record.
It's one thing to be disruptive and it's another thing to sit there respectfully, just like the camera is over there, it doesn't usually interfere with anything. These days you don't have to set up lights and do any type of elaborate preparations. So it's an important part of making sure that government stays open.
Tell me about your background
I majored in photojournalism as an undergraduate at the University of Buffalo. I started as a photographer at the school paper, the Spectrum, and then became the photo editor. Eventually, I started stringing for AP. Then got a job at the morning paper in Buffalo — the Buffalo Courier Express — and worked there for ten years until it went out of business in 1982. Then I transitioned over into television early on - before it became popular - and worked at the ABC affiliate for 22 years. Worked for ESPN for 12 as a freelancer, and really thoroughly enjoyed the field of photojournalism. While I was at the ABC affiliate, the reporter that I worked with got in the car one day and said he was thinking of going to law school. And I always had thought about that, so we went together. We'd go to law school during the day and work the 2:30 to 11:30 shift at night and when I graduated I just started practicing and eventually became involved… I had always been involved with cameras in the court room in New York state as a photographer and then as a lawyer I helped draft one of the amicus briefs in a case that had gone to the court of appeals - which is the highest court in New York state - that supported cameras in the court room. Then little by little, although I'd been an NPPA member since the early 70's, since I started my career, I started to do more and more legal work for them and got to the point where I'm now the general counsel and find myself involved in issues with photographers being interfered with and arrested around the country almost on a daily basis.
Involved with the Occupy movement?
The tensions between the police and the press has always been there and the Occupy movement has really exacerbated that problem. It's quite a number of things that are coming together for a perfect storm. You've got everybody that's got a camera these days — every cell phone has a camera, everybody thinks that they are a citizen journalist, user generated content has led to a number of staff photographers at both newspaper stations and television stations being laid off, so they're out there freelancing — so you've got a lot of people out there covering these events, and since 9/11 you've also got an attitude of mistrust about anybody with a camera. Whether they're taking pictures of a building or a demonstration. So I find that yes, the Occupy movement has caused a problem. What's even more concerning is sort of the splinter groups, the anarchists, who are not just protesting but who would like to see absolutely no control over anything. They've now seemed to be targeting photographers who are out there doing their job where before I just had to worry about trying to educate the police about first amendment rights and fourth amendment search and seizure, I now feel like I'm going to be faced with dealing with photographers who are being attacked physically and that's of great concern to me. I've spent quite a bit of time traveling around the country — I've been to Chicago and Charlotte and Tampa — I've done training with those three police departments, and others, but particularly those three in preparation for the NATO summit which is coming up next week in Chicago and then for the Republican National Convention in Tampa and the Democratic National Convention in Charlotte. So I've actually feel like I've made quite a bit of progress. I'll be back in those cities to monitor the activities and really see what happens in NATO, and it's going to be interesting to watch. I would be very happy if nothing happens, and when I say nothing I mean the demonstrators get to demonstrate peacefully, that the media gets to cover them, that nobody gets hurt or arrested and everybody gets to go home safe and sound. I'm afraid that that probably won't happen.
Differences between states and filming the police…
It's interesting that you ask that, because Illinois had the most onerous eavesdropping act in the country. Basically what it said was that if you record the police — and we're talking about audio recording, so you can take all the still pictures you want and you can record video as long as you don't have any audio with it — but if you record audio of police out in public and you get arrested for that and you get convicted on those charges, you could be subject to 15 years in jail. Now, that law was challenged by the ACLU because they wanted to be able to record police and CopWatch and a number of other programs that they had and they brought an action for declaratory judgment saying that law was unconstitutional and we were very concerned about that. The Reporters Committee and the NPPA and a number of other organizations submitted an amicus brief in support of the ACLU. That case was argued last fall and we were expecting, I was expecting to see a decision in March. We were very concerned with the upcoming NATO summit and at one point the G8 and the NATO summit were going to be in Chicago which would mean the president would be there and it would have been a week-long demonstrations attracting protestors from around the country. Well just this week, the 7th circuit ruled on that and they basically said that law is unconstitutional. So at least in the 7th circuit — and that would be Illinois, Indiana and Wisconsin — the right to record police is pretty much well established. As it has been in the 1st circuit with another case that was an important case, it's called Glick v. Kaniff, and that was decided actually last August where they talk about how people are able to record in public. And not just the press, anyone. Once again, as long as you're not interfering, physically getting in the way of the police, you should have the right to record.
It's a very major decision. The problem was, what we were worried about was if the 7th circuit upheld the law and I don't want to get in to the nitty-gritty of the legal aspects… what had happened was they had asked for a declaratory judgment, the lower court basically ruled that they didn't have standing, it got appealed to 7th circuit, which is a court of appeal, and what the court of appeal did is that they made this first amendment analysis and pretty much said that the law was unconstitutional. But what was their place to do is they reversed and remanded - they sent the case back down to the lower court and they granted a preliminary injunction against the law being applied to anybody. So it still needs to be completely litigated but they pretty much have spoken. It's not that they actually came out… in their language, they talk about it not passing constitutional muster. So for all intents and purposes, they really did say that.
Talk a bit about differences in states… New York?
On some levels it fairs well, on other levels it doesn't. We have really wonderful open meeting laws and pretty much they are open at least on paper to the public. I still find people that go to school board meetings, all kinds of different meetings, still have issues, and I'm just going to stick to the photography part. Obviously reporters and others have possibly other issues, but people that go in and try to record still have problems where they're told they're not allowed to do it. And we still deal with that. In terms of the courts, New York is one of unfortunately a few states that does not allow cameras in the court room. We were not successful back in 1997. Part of it is because in New York it's a legislative act. In most states, it's actually the court that promulgates its own rules so what happened here is when we went to the court of appeals, the court of appeals basically said 'we're not going to find that the law is unconstitutional and it doesn't allow a recording.' It's interesting because the law in New York state allows still photography but it doesn't allow audio visual recording — and there are some exceptions. It doesn't allow audio visual recording when there is live, sworn testimony. So what that means that if the judge grants you permission, you can go in and you can record opening arguments, you can record closing arguments, you can record anytime that somebody isn't on the witness stand providing testimony. What that also means is that both the appellate courts - the mid-level courts - and the court of appeals, which is the highest court in New York state (New York state is very bizarre, the trial courts are called Supreme courts, the highest court is the court of appeals. It's counter-intuitive, in almost every state the highest court is the state Supreme court… it doesn't work that way here). So you can record in any appellate level court because there's no live testimony. You can record at the trial court level with the permission of the judge it's really in their discretion whether to do it… you just cannot record when somebody is giving testimony. Hopefully that will change, the problem is that we had a number of bills - cameras in the court room bills - and we had some politicians who've been around forever who just had this preconceived notion that they don't like cameras in the court for no other reason than something that possibly happened to them years ago and they are letting that stand in the way of people being able to watch trial court proceedings.
We had a ten year experiment between 1987 and 1997 where the courts were open and we were able - again, with permission of the trial court - to record trials and I recorded dozens and scores of them in that ten year period. During that ten year period, the judiciary and the legislature did four different studies. It was a ten year period but really they'd do two years and then they'd re-up it … well in that ten year period they did four different studies which took in anecdotal evidence and empirical data and each one of those studies showed that cameras in the court room did not affect a person's right to a fair trial. There was never one appeal taken in those ten years, with hundreds of trials being recorded, based on the fact that somebody claimed they didn't get a fair trial or their sixth amendment rights were violated because there was a camera. But it really didn't matter what any of those studies said, our legislators, certain legislators just let the law unset in 1997. Again, this is right after the OJ trial so that actually made people draw back on cameras in the court room.
And it's interesting when you look at cameras in the court room because the first real ban on cameras in the court room came right after the Lindberg trial. When Bruno Halpman was tried back in the 1930s, and that was the trial of the century back then, right afterwards they thought that there was a circus-like atmosphere… you have to remember what the equipment was like back then with flashes and the newsreel were big and cumbersome and needed lots of lights so in a way it was a zoo because nobody really dealt with it and then what happened afterwards was that there was this huge backlash where they put in place what was called Canon 35 which basically banned photography and cameras from all of the court rooms throughout all of the United States. And we took a huge step backwards and then little by little by little, as technology evolved, as social awareness changed, certain states allowed cameras in — Florida being the most progressive. There have only been two supreme court cases dealing with cameras in the court room. The first came in 1965 and it's Estes v. Texas and the defendant in that trial was a friend of President Johnson's and he was on trial for racketeering and they allowed cameras in the court and he said he didn't get a fair trial because of that. And what happened there was they didn't rule one way or the other in terms of cameras, although they certainly weren't favoring them, the trial was more about whether he did or didn't get a fair trial and they basically said that he didn't. But, that being said, they started to allow the states to experiment and they did and Florida became the most progressive state.
And then in 1981, there was another case called Chandler v. Florida, and it involved a number of Miami police officers who decided on their own that as a side job they would burglarize places and they used their police radios on a different frequency to talk to each other. It's kind of a fascinating case. And somebody with a scanner overheard them and called the police - the real police - and they were arrested and they were tried. And they were tried with cameras in the court room. And again, when they were convicted, claimed that they didn't get a fair trial because the proceedings trial was televised. The Supreme Court again went, 1981 to 1965, things had progressed… while they didn't say there was a right to record, they basically said we'll let the states decide for themselves and that's pretty much the way the law has remained.
Never another case has gone to the Supreme Court based on cameras in the court. There have been a number of different issues that have been tried in the federal courts, but it's never gotten to the Supreme courts so there is no law of the land when it comes to cameras in the court room. And as you know, in Illinois they're just again starting that experiment again.
The one thing that's interesting and I've written a lot about this is that in federal court, there are no cameras allowed at all. Supreme court in particular. They had a three-year experiment ten years ago. Once again it said that 'not a problem, nobody is complaining.' They just started a new experiment with cameras in federal court only for civil trials. The problem with that is there are so many rules. The court personnel run the cameras, not media. Not only do the parties have to agree to allow themselves to have this proceeding recorded, but whereas most times they would start at the beginning of the trial and say, 'are you going to allow this' and they'd say 'yes' and they'd go on from there, with the new rules they're now saying each proceeding has to be approved so somebody could start and say 'yes' and then the next one could say no so our concern is that they're really not going to get a vast pool of data to make a decision one way or another, but it's unfortunate. This thing just has been moving along glacially.
Why do they keep doing experiments if legislators don't acknowledge the outcomes?
Because for some reason they think that is a problem, that cameras - just like they do in the Supreme court - that cameras are going to change things, that people are going to play to the cameras, and by and large throughout all the states, all of the evidence shows that that's not true. Most people, it doesn't matter. And eventually, things will change. Look at Plessy v. Ferguson, and how long it took to get to… Brown v. Board of Education that separate was not equal and it doesn't surprise somebody that it takes them forever to change certain preconceived notions.
Tips or tricks?
Well, there's no tricks. But tips, they're pretty much common sense. I realize that in news, you don't know if you're going to be sent to a meeting until you're sent to the meeting. But where it's possible, photographers should, especially if they're freelancing, they should find out what the rules are. They should do some homework ahead of time. If they need to make application, make the application, submit whatever paperwork is there. If they're told that they can't, then they have some time to figure out how to address that. Just thinking you could show up and walk in is not always the best way to do that. We've seen time and time again — in DC, for instance, there was a taxi cab commission incident that I got involved in where the reporters who were trying to photograph, were told they couldn't, they ended up getting arrested. The charges were ultimately dropped but it becomes a problem. So wherever possible, it's always good to do your homework ahead of time. Make the application, find out what the ground rules are, if there are guidelines set up, if there are any kind of requirements at that meeting where you can set up or can you use a tripod, where you have to be, how you're going to mic it — all of those things, rather than just show up at the meeting, because then they might consider you being disruptive and that's usually the catch-all they use to say you can't record. Well if you've done your homework and you've been told that you're going to be allowed it shouldn't be a problem.
In terms of dealing with the police — from my almost 40 years on the street, one of the things that's really important is for photographers to not be this nameless, faceless media. It's like this thing over there with a lens, and they don't see a person and they just see a guy with a camera or a girl with a camera. Get to know your police department. Meet with people. Ask to meet with people. Whether it's a public information officer, or a training officer, so you become a person. And be respectful on the street. It's really important that they know that you're a professional. That you're doing your job, it's an important job, and you're going to stay out of their way and let them do their job. And there's really no short cut to doing that. You treat them the way you want to be treated, but that may not work. You'll still find some cop who's going to say to you, 'get out of here, leave,' who throws his authority around, who tells you things that are not totally truthful or they'll lie, but he still has a badge and he still has a gun and arguing is not going to get you anywhere except that you're not going to be able to pay attention to why you're out there which is to record. So you have to judge each situation. If there's somebody you can appeal to, whether it's a public information officer, ask for the supervising personnel. Other than that - move away, go find a different place to shoot from, it's really hard to all factor it in but getting into an argument with somebody — especially with somebody who sees themselves as an authority figure – is not going to get you anywhere. You might win at the end of the day — we see quite a number of suits where photographers have been arrested, the charges end up getting dropped, and they may win a federal civil rights action, and in the case I was talking about with Glick, the city of Boston ended up settling for $170,000. Money that these municipalities can ill afford to waste on these kinds of things, and it continues to happen, but the point is… he wasn't a news photographer, actually a lawyer, but when you're out there as a person for the media, the whole idea is to get out there and to cover the story. Not to get in an argument with somebody, not to get arrested, not to become a story by yourself. So that only comes with experience and the kind of person you are and how you comport yourself if you act professionally and you act respectfully, it's something you end up spending a lifetime working and gaining respect. And you can lose it in an instant.
There were many times the police would tell me things that were off the record. And I might have gotten a scoop, but then I'd never get anything again or I'd be branded as 'he can't be trusted' and you don't want that to happen. In particular, I'll just give you a case…
We had an incident in Buffalo when I was still a photographer where a police officer had been shot to death and they were looking for the suspect. And I knew his attorney. And I went to his attorney's house and I knocked on the door and he said, 'listen Mickey, he's not here but I'm meeting him and we're going… he's gonna turn himself in and I'm going to go with him.' So I came down to police headquarters because I knew they were going to come, and I knew it was going to be happening. And the other media had staked out the front door. And I knew they were going to drive in right into the building. And I stood at the end of the driveway out on a public street where I had every right to be, and a couple of guys saw me from homicide and they turned white. They didn't know what I knew and they thought that I just luckily happened to stumble by and was standing out there. They were afraid that if I stood out there, that he was going to see the media and he'd turn around and he wouldn't turn himself in. And I didn't have a lot of time to explain and they weren't interested in explanations. They said, "Mickey…" — and we knew each other — they said, "Mickey, could you leave? Would you mind?" And I went across the street and sat in my car and I still got them driving in, I was the only one who got the shot, but later they said "we really appreciate it" and we got an interview that nobody else got. So you have to make those judgments. So me sitting here trying to give this advice that will apply in all situations — it's really impossible. But it's the kind of thing where you know each other, you have that respect, it's give and take, it's just like anything else — it can't be all black and white, all one way or the other.