Officer, Who Arrested a Photographer for Taking Photos in Public, Has Their Qualified Immunity Claim Rejected

A ray of hope for the future for those who record public events and news materials, as "federal appeals court has rejected a qualified immunity claim by a Dallas transit cop, who arrested a freelance photographer for criminal trespass in 2016 because he was taking pictures at a train station."

Undoubtedly, both street photography and photojournalism has become harder to exercise in public spaces and properties, pushing boundaries between what is legal and what is moral. However, when it comes to legalities, freelance photographer in Dallas, Avi Adelman, can celebrate as the U.S. Court of Appeals for the 5th Circuit ruled that "no reasonable officer under these circumstances would conclude that she had authority to eject a person complying with DART [Dallas Area Rapid Transit] policies from public property—and then arrest that person for criminal trespass when he failed to depart". 

The situation unfolded in 2016 when Adelman heard a report of an incident at DART's Rosa Parks Plaza station and decided to head there to document the story. Upon arrival, he was faced with Dallas Fire/Rescue paramedics attending to a man, who was lying on the ground, and Adelman began to photograph it but was confronted by DART Officer Stephanie Branch who ordered him to stop. Although Adelman explained that he had a right to photograph public events as long as he doesn't interfere with police or emergency responders, Branch ordered that he leaves the area, and when he refused to do so, she grabbed and handcuffed him. 

Adelman was forced to spend that night in jail, but criminal trespass charge was dropped against him after DART concluded that there was a lack of probable cause for Branch to arrest the photographer. In fact, Adelman's arrest had violated a "Photography Policy" that DART adopted in June 2014, where "Persons may take photographic or video images … of DART Property, including but not limited to stations, buses, trains, or other vehicles, for their personal use." Furthermore, policy read that "Persons taking photographic or video images must not interfere with transportation or public safety activity while taking images. DART Police Officers may initiate an inquiry or investigation when photography or videotaping activity is suspicious in nature or inconsistent with this policy."

The arresting officer Branch had been on a medical leave from May 2014 to January 2016, thus she claimed she had missed the memo. However, going through the audio that DART had captured that day, it revealed that everyone involved in dealing with the incident had understood that Adelman was not doing anything wrong at the scene. To make matters worse, an investigation led by the DART Police Office of Professional Standards revealed that Branch had made 23 "false or inaccurate statements" about the photographers' arrest, such as claiming that he was stood too close to the paramedics, who according to her lie wanted him to step back. Following this, she was suspended for three days.

After Adelman sued the officer and DART in September 2016, a federal judge concluded that, although Branch was "entitled to qualified immunity against his claim that she had violated his First Amendment rights", the same didn't apply regarding his Fourth Amendment claim. In this regard, based on the lack of probable cause for his arrest, the judge concluded that "the evidence demonstrates at least a fact issue regarding the element of reasonableness."

The Fifth Circuit was in favor of Adelman having the right to pursue his Fourth Amendment claim, noting that "no reasonable officer would conclude that she has probable cause to arrest someone for criminal trespass after that person refuses to follow her instructions to leave when she lacks the authority to exclude the person from the property." They also rejected her claim that she didn't know any better because it wasn't due to misunderstanding or misinterpreting a policy but rather because she simply hadn't learned DART's updated policy, concluding that "an officer can gain no Fourth Amendment advantage through a sloppy study of the laws [s]he is duty-bound to enforce."

Although the same laws and policies do not transfer across the rest of the world, it is satisfying to see that there are situations where photographers are able to pursue their rights. Unfortunately, there are many stories where others haven't been as fortunate, both involving those whose job is to uphold the laws and random passers by who take matters in their own hands. It may be a drop in the ocean, but Adelman's persistence and knowledge of laws gives a hope for future cases involving both professional photojournalists and street photographers who simply want to record today's social history. If you want to read more about how this case develops, visit this designated website.

Have you ever encountered a situation where you have been forced to stop photographing? Were you in the right? Share your story with us. 

Lead image by Matthew105601 used under Creative Commons.