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

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. 

Paramedics attending a scene of an injured person.

Photograph from the night of the incident.

Paramedics attending a scene of an injured person.

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.

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32 Comments

Arguing your rights with a cop is asking for trouble. Arguing anything with a cop is asking for trouble. Just saying.

user-244549's picture

This is possibly the stupidest comment made on social media this year.

Police officers are there to serve the public not to order it around. To slavishly surrender your rights to an idiot in uniform's demands is stupid and much worse than "asking for trouble".

Standing up to authority when it goes too far is a moral imperative. And the message should be clear: you, the police, are there to enforce the law and not to make up laws to enforce.

You may indeed be morally right, but I am never at my best with six bullet holes in me. :D

Dream on, Nicholas K. You might not have been around much nor had many dealings with the police. I would say if you are an "officer of the court", i.e. a lawyer in the USA, you might try your hand, but unless you relish being right but still being arrested, you might best say "OK, officer" and be on your merry way.

user-244549's picture

I relish having rights. I relish protecting them and I relish the right to sue when a police officer infringes them too. Because you feel that cowardice is a virtue, it doesn't mean that the rest of us agree.

Nicholas, don't demean yourself any further. You are obviously an immature lad with not much real world experience. Please be quiet.

user-244549's picture

I'll take that as a compliment from the coward. Now run along, I am sure you have some quivering and cowering in real-life to be getting on with "you hero".

Never had an encounter with a cop before, have you?

user-244549's picture

Lol. Not only have I had an encounter with a cop - I used to work for the police. I've told more policemen where to get off than most of you fearful messes have had hot dinners.

Nicholas, your viewpoint is admirable, but in alternative scenarios we have stories like these:-

https://fstoppers.com/legal/photographer-who-was-shot-deputy-who-mistook...

https://fstoppers.com/originals/police-officer-leave-after-pointing-gun-...

Because police officers are people, good and bad, one doesn't know in advance what one will get so I think it better to co-operate fully.

People are welcome to downvote me, as they did earlier, but I was surprised at that, because even if a photographer is faster on the draw with his....Canon RP, against the cop, what difference does it make in the end ?

user-244549's picture

You have fallen victim to "exceptionalism". Two incidents of mistakes in millions should leave you grovelling on your belly like a worm in the dirt before a police officer making up the law as they go along?

You should always exercise intelligence when dealing with any situation but the police are not generally bloodthirsty incompetents and it is perfectly OK to stand up for yourself when confronted by injustice.

If we do not stand up for our rights, we lose them. That's not OK. It has never been OK and we are at a peculiar point in time because for most of history, most people have had no rights, therefore, to squander them cheaply is an insult to the millions who have given their lives to preserve them over the last century or so.

You know nothing about me, and I am not inclined to inform you.

user-244549's picture

Oh but I do. You're an enormous coward who takes great pride in showing his stripe to the world. You already informed me of that in writing. Too late to take it back now.

Lol this sniffling lil twerp is a riot! I (accurately) called him a coward in a previous post for ignoring facts that refuted his bs claim, and now he’s calling you a coward here. Projecting much? Or an indication of his limited intelligence/vocabulary? Probably both.

I swear, each comment he makes is further proof he’s some middle school punk trying to be badass. Oh, you’ve told off police officers? We’re so very impressed! Fucking loser.

Ignacio Balbuena's picture

Not all the US cops are bad guys but the amount of cases that officers escapes impunes of their own criminal acts is shocking, from officers being demoted as "punishment" to only get promoted back after the fuzz on the media pass or even the case of the officer hitting a judge that wanted to stop a fight and he get an early retirement, is hilarous basically their system in the department is crooked.
Btw the officer is there to serve the law, not the public. Is one of the first thing that a friend that is lawyer told me

That maybe a true in "wild west" US where most of the cops ( not all of them ) are dumb as bag of potato and acting like cowboys.

I would not say most police "are dumb as a bag of potato and acting like cowboys". Not at all. I would say that most are about like you or your neighbors. But they are in a position of authority, and indeed, they have a license to kill. Exercise good judgement. The eastern European notion of our military or police acting like "cowboys" is a bit dated. I've been around and I've not seen even cowboys acting like "cowboys".

That is a Cop problem, but that's nothing new.

Just because you have the legal right to do something doesn’t make it ethical. Nothing more despicable than those who photo or record someone suffering a critical situation for their own gratification or profit, and then dress it up as some noble act of journalism. If you cannot help then go away, I have every sympathy with the officer’s indignation.

Arthur Morgan's picture

The patient had an undeniable moral right to privacy and the Paramedic had a moral right to privacy during the time he was carrying out his professional duties unless there is an overwhelming reason why the public should be informed. Even if there is no legal right to privacy no normal person would willingly allow themselves to be photographed during these times. Too many people holding cameras ignore decency of social behaviour.

Andrew Almeida's picture

I've stopped doing Streetphotography all together. It used to be fun, but all the stress has forced me to stop.

Smile and wave in a friendly manner to people who notice you. Talk to them. Tell them about yourself and what you are doing. Ask them if they want to pose for some photos and offer to send them the images. Tell them how great they look. Tell them you have had your work published and sold some of it. Be a nice guy or girl.

Oh, that pesky and immature Nicholas K is down voting my comments. Tssk tssk. About time for you to be growing up, to become a man. Not too late. Give it your best.

That little punk Nicholas K is such a coward. He can’t back up any of his sorry comments with facts, and instead resorts to banal troll tactics. Certainly one of the dumbest losers on this site!

Eric Mazzone's picture

So many dumb assed Nazis in here who would willingly give up everyone else's rights.

Arthur Morgan's picture

Rights can only be claimed once duties to society or individuals are completed, and then only to a degree that each society considers to be appropriate.

Eric Mazzone's picture

So you believe our system is what's in the film Starship Troopers? Funny how citizenship​ doesn't require service.

JK Shearon's picture

Cops I have encountered are generally professional and courteous. However, in a stressful situation most will exert control. In many cases they just haven’t had enough photographer contact to know what they should and should not do, so they err on the side of control.

If we want to maintain our rights, and I understand some folks don’t feel much reason to personally involve themselves in that pursuit, then those rights need to be exercised with good sense. That usually means we risk a night in jail; but good sense prevailing, should not cause us to do something that will make those courteous officers think they need to shoot us. Most of the experienced ones don’t want the extra paperwork.

More incidents of the nature described in this article are likely to be necessary to maintain our right to record the life around us. Such incidents do inform LEAs on proper procedure. They do no relish being sued for any reason. A failure to protect those rights usually mean that, over time, they are lost, either practically or actually.

David Blacker's picture

A few days after the Easter Bombings in Sri Lanka, I was shooting one of the bombed churches in Colombo, for Polaris Images. It was still under military guard, and not open to the public. The situation was still pretty tense. Not being a photojournalist, I didn't have a press pass or press credentials. Just a letter from JP Pappis of Polaris, vouching for what I was doing. Anyway, all went well, and I got whatever shots I could. As I was getting my last shots, I was accosted by a civilian who asked me who I was and what I was doing there. I always try to be diplomatic, so I explained. He then said he was from the neighbourhood watch and the cops had asked them to check out anyone suspicious (there was a police station just on the corner). Eventually he called over a cop who checked my identification but everyone relaxed when they realised I was a Christian (the bombings were by what was suspected to be an ISIS-affiliated terror group). The cop then asked me for my mobile phone and went through my Whatsapp and text conversations looking for Muslim names. He was satisfied and went away to take a photocopy of my Polaris letter. The neighbourhood watch guy confided that he too was a Muslim and his house had been damaged in the bombing. But he let me take his picture. After that I decided it would be better to leave: https://sonofthemorninglight.wordpress.com/2019/04/30/the-face-of-shock/

Anete Lusina's picture

Thank you for sharing your story!

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