General Discussion

As I generally like Don Phillips' articles and I am told he is a good guy, I am somewhat reluctant to criticize.

But, after reading his article in the September 2009 issue of Trains, I am saying, "oh my goodness, did he really just say that?"

Phillips basically outlines one's legal rights to take pictures, and provides specific instances wherein you do not have to obey an officer's request--including "you have the right to take photos of anything from public property" and you do not have to provide identification if an officer asks unless you are in a car.  Phillips then admonishes the photographer to basically get into a constitutional law argument with the officer directing the photographer to do things he believes he does not have to do.  Phillips finally references a general counsel's name who apparently helped give him this information/advice, but indicates that this individual cannot represent you personally.

First, as to the indication that he cannot represent us personally, news flash, for the readers who reasonable relied on this legal advice, he just did in many jurisdictions! 

Moreover, although I know why he makes the--legal--contentions that he does, he REALLY over extends the nature of the advice.  Yes, there is a Supreme Court case that limits an officer's ability to demand an identification.  However, that case has several exceptions to it, and there are several lower state court decisions calling into question the reach of that case.  Also, it is applied differently in different states.  Moreover, do you really want to put your future of having an arest record on a judge interpreting that case correctly?  Judges make wrong decisions all of the time, and even if you are within your rights, do you really want to go in front of a judge who might be the golfing buddy of the cop and ask him to examine the finner points of constitutional law?  And, like I said, there are a lot of States that really seem to question that rule--I wouldn't dream of not giving my identification in Indiana.

Don's point seems to be we really all need to step up and protect our rights, and not let overreaching cops rob us of our rights.  I have no problem with that.  A cop has a badge and a gun and the ability to arrest you.  Even if you are vindicated, RETROSPECTIVELY, an arrest record can hurt your reputation and ability to get a job.  Don't play Jonny Cochran with the cop on the street.  If a cop gives you an order, follow it.  If you want to stick up for your constitutional rights, go find a lawyer afterwords and file a civil lawsuit against the cop, or complain to his supervisor.

The last thing you want to do is have a criminal record because you didn't realize there were 12 exceptions to each of Mr. Phillips' pronouncements on the law. 

To the friends of Don Phillips, to the extent you think I am being harsh, I am not and am trying to do him a favor.  His column has the potential to give him--and others--a much bigger headache than he realizes.  If someone whom I trust not to tell the rest of the world wants me to elaborate on this, email me.

Gabe

Gabe,

First off I want to state I have not read the article you are speaking to.

If we have rights, but we are intimidated out of exercising them, are they really rights? I am the last person in the world that wants to get into a confrontation with a law enforcment officer. However, my right to (for example) take a photograph from public property is dependent on it being exercised. If it is not exercised, it will atrophy and die.

There was a thread not too long ago in which many people advocated the identical position you have. It really amazes me that so many of us have accepted that we need to give up our hobby just because it offends some people. No one has yet given me one shred of logic as to how a railfan photographer can create a security issue when he is obeying the law by taking pictures from a public place. I am waiting to hear someone-anyone-try to substantiate that position.

I expect to be waiting for a long, long time.

Jim

htgguy:

Gabe,

First off I want to state I have not read the article you are speaking to.

If we have rights, but we are intimidated out of exercising them, are they really rights?

Jim

Per my post: aboslutely. 

The difference is the way that you exercise them.  If a cop uses the force of law to make you give us something that you don't have to, and you file the appropriate civil action, you are going to make one heck of a more profound statement to law enforcement than not obeying the officer and getting thrown in jail.

My point is, if you have a legal right, exercise it in the court room, or in a letter to the cop's supervisor--not on the street. 

htgguy:

No one has yet given me one shred of logic as to how a railfan photographer can create a security issue when he is obeying the law by taking pictures from a public place. I am waiting to hear someone-anyone-try to substantiate that position.

Jim

There are several statutes that indicate that there are particular things you may not photograph regardless where you are taking the photograph--military rail movements come to mind.  I mean this respectfully, because this is an honest disagreement amongst us, but as much as I like druming up legal work for me and my ilk, although you might eventually prove that the various statutes are unconstitutional, if you want to run the risk of not winning that argument and spending $100,000 in legal fees in the process, you are a braver man than I.

Gabe

I have always taken the position that a peace officer has the right to command you to do just about anything short of an unethical or illegal act.  Producing identification, hieing my backside another 10 yards away from the tracks, or lowering my camera are not included in those last two exclusions.

In Canada the charge is, "Interfering with a peace officer in the execution of his duty," or "Refusing to comply with the demands of a peace officer in the performance of his duty,", or something close to those.  Judges might or might not be sympathetic, and if the latter, one is in for many months of angst and inconvenience while one tries to get it laid to rest.

-Crandell

As was discussed in the previous thread on the topic, moderation is key.  Bravado will get you busted.

As I mentioned in one of the Train Fest discussions, I helped out a MI state trooper a bit with traffic control when 765 left on Saturday morning.  I'm pretty sure I'd get a pass if I encountered him again and wasn't way off base.  On the other hand, there was the guy who walked out into the middle of M52 to get his special picture of the movement and got stern words from the same trooper just moments later...

The fact that we have this discussion at all indicates to me how much we in the United States operate with the illusion of freedom-.

Certainly, the U.S. is still alot better than most countries on this planet, but is no longer the model of freedom and individual rights that it used to be.  However, having said that, at least we still have the 'freedom' to criticize (as long as we don't point out too many inconsistencies in the rhetoric of our "leaders").  The Constitution and the Bill of Rights have been relegated to not much more than an advertising slogan.

And yet, from the perspective of Mr. and Mrs. SoccerMom America, which has had their understanding of world events shaped by television media, I can understand how from their narrow perspective seeing somebody standing by the train tracks with a camera must seem rather odd, even suspicious. It's no wonder that people call the cops on us so often. The government, with the help of tv, has made it 'patriotic' to be a snitch.

zardoz:

The fact that we have this discussion at all indicates to me how much we in the United States operate with the illusion of freedom-.

Don Phillips writes interesting columns, but I was also taken aback by the "legal advice" in his column in the September, 2009 Trains. As I have said many times before about cops who might wrongly tell railroad photographers who photograph trains from public property that railroad photography is illegal, don't argue, try to note the officer's name and badge number, then leave immediately!

Let me the devil's advocate. If I am not mistaken the Supreme Court ruled in 2004 a law enforcement officer may ask a person for their identification, and that person must comply. Then there may be situations where the officer might think the location of the photographer, even on public property, might put that person in danger, or it might pose a hazard to others.

I can think of an incident that occurred during the 2007 Altoona, PA Railfest as an example of the latter. Many photographers were waiting to photograph Bennet Levin's E 8's on a sidewalk on the 48th Street Bridge in Altoona when a driver of a van stopped suddenly to see what was going on; the van was rear ended by a driver who was not paying attention, and who didn't notice the van in front had stopped suddenly. 

Nevertheless I agree with Don Phillips' opinion (and the opinions of many editors of railfan publications) of Amtrak's photography policy, it is wrong.  

Murphy Siding:

zardoz:

The fact that we have this discussion at all indicates to me how much we in the United States operate with the illusion of freedom-.

   And yet, the fact that we can have this discussion at all, without being hauled off to jail or worse,  indicates that we have a lot of freedom that the average citizen in the United States takes for granted.

In France, I would definitely be locked up for criticizing Don Phillips . . .

Gabe

gabe:

htgguy:

No one has yet given me one shred of logic as to how a railfan photographer can create a security issue when he is obeying the law by taking pictures from a public place. I am waiting to hear someone-anyone-try to substantiate that position.

Jim

There are several statutes that indicate that there are particular things you may not photograph regardless where you are taking the photograph--military rail movements come to mind.  I mean this respectfully, because this is an honest disagreement amongst us, but as much as I like druming up legal work for me and my ilk, although you might eventually prove that the various statutes are unconstitutional, if you want to run the risk of not winning that argument and spending $100,000 in legal fees in the process, you are a braver man than I.

Gabe

Are you saying that when I took these photos, I was breaking the law? If that is true, I honestly wasn't aware of it. Is it a Federal Statute? It's something I need to be familiar with, can you provide a resource that describes it?

Hummers

More Hummers

If it's the law, it's the law, even if it is stupid. My OPINION is that any law that prevents an overweight 49 year old from taking pictures of a few flatcar loads of HUMVEEs passing through central Minnesota (on the way to the battlefront in Montana, perhaps?) accomplishes nothing for national security. It does, however, interfere with my rights as a photographer.

To me, this whole discussion seems to come down to whether we have rights that cannot be interfered with, or whether any rights we have exist only because a benevolent government decides that they will grant them to us. I contend that the rights come before the government, but I sense that I am in the minority here.

Maybe I'm wrong, but the sense I'm getting is that if a law enforcement officer questions anything you are doing, you stop doing it because it has been questioned. You have no business questioning anything you are told. My instinct would be to politely ask if there is a law prohibiting what I'm doing. I am not advocating being confrontational, or making a scene. I just want to make sure that if I'm told to stop something, it's not just because it makes it more convenient for the cop. Is that wrong?

I'm still waiting to hear the logic behind policies prohibiting photography from a public place. In World War 2, before a convoy is sailing, I get it. When military equipment is passing through Minnesota in 2009, not so much. What is the threat?

Jim

RudyRockvilleMD:

Let me the devil's advocate. If I am not mistaken the Supreme Court ruled in 2004 a law enforcement officer may ask a person for their identification, and that person must comply. Then there may be situations where the officer might think the location of the photographer, even on public property, might put that person in danger, or it might pose a hazard to others.

I can think of an incident that occurred during the 2007 Altoona, PA Railfest as an example of the latter. Many photographers were waiting to photograph Bennet Levin's E 8's on a sidewalk on the 48th Street Bridge in Altoona when a driver of a van stopped suddenly to see what was going on; the van was rear ended by a driver who was not paying attention, and who didn't notice the van in front had stopped suddenly. 

Nevertheless I agree with Don Phillips' opinion (and the opinions of many editors of railfan publications) of Amtrak's photography policy, it is wrong.  

Was this accident the fault of railfans, waiting in a public place, to photograph a train? Or was it the fault of the driver who stopped on what must have been a busy highway? Or was it the fault of the driver who rear-ended the van that stopped in front of him?

It seems like there are traffic laws that apply in this situation. First, I don't think you should stop in the driving lane of a busy highway, no matter how intrigued you are with the railfans who are waiting to shoot an E unit. Second, many years ago in driver's ed, it was pounded into me that if I rear end someone, it's my fault as a driver. My instructor never told me anything about the railfan exception.

I know that my position is not popular, but we need to stick up for our rights. I'm curious how many of you think the above incident is justification that railfans should not be allowed to photograph trains from bridges that have sidewalks? If it's not, what's the lesson to be learned? Is the fact that " there may be situations where the officer might think the location of the photographer, even on public property, might put that person in danger, or it might pose a hazard to others" enough to kick people off the bridge sidewalk? Then should people with unicycles be kicked off too, or those who are dressed stangely, or anyone who may...might...might distract people and cause a hazard? In my opinion this is a dangerous road for us to travel down.

Jim

Murphy Siding:

zardoz:

The fact that we have this discussion at all indicates to me how much we in the United States operate with the illusion of freedom-.

   And yet, the fact that we can have this discussion at all, without being hauled off to jail or worse,  indicates that we have a lot of freedom that the average citizen in the United States takes for granted.

Third World countries? Yes. 
Communist countries? Yes. 
Western Europe? No. 
The United States pre-911? Definitely not!

And yet, we must realize that it is no longer 1999, 1959, 1909, or whatever year you wish to compare with. The world is not the same anymore.  There are extremists who's entire mission in life is to terrorize. Whether it is the result of political or religious fanaticism, these people only want to do harm to others. And because of these types, we potential victims need to take some measures to try to reduce the likelyhood of it happening. As to whether restricting the taking shampoo on board an airplane or banning railfan photography will have any effect in reducing potential terrorism.....

I would like to hear the other side of the story regarding some of these railfan-police encounters. As you know, there are three sides to every story: my side, your side, and the truth.  I've had run-ins with the Barney Fife-types who seem to have gotten their worldview from Fox 'News', and therefore see everyone that does not fit into their tiny perception of reality as a potential jihadist. I've also had encounters with cops who, after quickly observing what I was doing, would ask questions like, "What kind of film are you using?", or "Anything interesting coming?". 

Cops are just people. And thus there are really nice ones and there are real jerks. Unfortunately, these jerks have somehow been given authority over others, and that makes them dangerous to our freedoms.

zardoz:

...Cops are just people. And thus there are really nice ones and there are real jerks. Unfortunately, these jerks have somehow been given authority over others, and that makes them dangerous to our freedoms.

Absolutely.  And, as people, they are subject to the same vagaries and whims as any of us who rises with a bad mood, a stubbed toe, or a sleep-free night...worse if all three.  If they overstep their lawful authority, they should be subject to sanction to the extent that you and I are subject to it. 

I do agree with the central premise, or point, that Philips wants us to understand....use it or lose it.  But, just as these rights were hard-won, they must be hard-maintained.  Nothing's free in this day and age where even water and resources are acquired by the transfer of value....money, goods, services....  (look for air to be the next commodity).  Our rights are no different.  They can be commercialized and reframed by all sorts of influences...and authorities.

I think that, at the platform or the roadside, when confronted by a peace officer, one should not be servile or cowardly, but neither should one be obdurate or obtuse.  Negotiate if that is to be possible, inform, explain, and if the threat comes down to the high likelihood of arrest, you then have a choice; stand on your principles and in your understanding of the Law, or appease the person challenging you and get a badge number....and the cooperation of any witnesses.  Then prepare for the fight that many have undertaken at considerable expense, including their very lives, in ages past.

With a whimper or a bang...Philips is saying we have to decide.

-Crandell

Gentlemen, I have once again read all your statements carefully.

Everything considered, I can understand why people do not want to be hassled while just exercising their rights. On the other hand, if the situation is as bad as Selector has said, as far as the powers of peace officers are concerned (what exactly is a peace officer, I am not quite familiar with the term?) we are probably not so far away from what ordinary german soldiers used for excuses after WWII after being questioned by the victorious allies. Most of them always said, I was told so, I was under orders, and they were rightfully condemned. But isn't this attitude, do what the officers say regardless, a step towards such a mentality?

Please excuse my bad english, it isn't my mother tongue, but I nonetheless hope that you get my point, the point simply being that I think if you abandon your peaceful rights it won't be long and they will be gone forever.

In the US also. 

Referance the incident of the professor having to break into his own house, the cops arriving to a "break-in in progress", the cop saying "Please exit your house for a few moments" so they could sweep the house to make certain there was no actual break-in, the professor lippinf off the the officer about it being his house and he won't leave it, the professor being arrested refusing to obey the officer and lipping off to him.

 Believe me, you won't get to have a "Beer Summit".

One of my "lives" has been Security, and both Public (Cops) and Private Security Officers have the legal right and in come cases the legal obligation to tell you these things, and if you do not obey, to authorize your arrest.

As has been suggested above, defend your rights in court via a civil law suit.  That way you do not get a criminal record (which WILL result in job denial issues) and the officer(s) will have a negative record.  Makes it so much easier to get a cash settlement from the offending department.  You - and your lawyer - will be very glad you did.