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Photographer Wins Lawsuit against Homeland Security to Photograph Outside of Federal Courthouses

By Joel L. Hecker

Antonio Musemeci, a software developer who works with the radio show Free Talk Live, and is a member of the Manhattan (New York) Libertarian Party, was arrested by an officer of the United States Department of Homeland Security's Federal Protective Service on November 9, 2009 while taking photographs of another Libertarian party member who had been handing out pamphlets in front of the Daniel Moynihan United States Courthouse at 500 Pearl Street in Manhattan.

The arresting officer took his camera and memory card and charged him with violating 41 CFR Section 102-74.420, which places restrictions upon photographing certain federal property. The criminal charge was eventually dismissed and on April 22, 2010 Musemeci filed a lawsuit in the United States District Court for the Southern District of New York. The case, Musemeci v. US Department of Homeland Security, Docket No. 10 Civ. 3370 (RJH), sought to enjoin government officials from restricting non-commercial photography in outdoor public areas where pedestrians have an unrestricted right of access. He was represented by the New York Civil Liberties Union.

That case has now been settled with a complete victory to Mr. Musemeci, other photographers and the public at large. In the settlement agreement filed on October 15, 2010 FPS agreed to provide a written instruction to its officers and employees engaged in law enforcement, stating that for federal courthouses under its protective jurisdiction, there are generally no security regulations prohibiting exterior photography by individuals from publicly accessible spaces, absent a written local rule, regulation or order. The instruction will also inform FPS officers and employees that the public has a general right to photograph the exterior of federal courthouses from publicly accessible spaces.

The settlement does not preclude FPS or any other government agency from taking any legally permissible law-enforcement action, including but not limited to approaching any individual taking photographs and asking for the voluntary provision of information such as the purpose of taking the photographs or the identity of the individual, or taking lawful steps to ascertain whether unlawful activity or reconnaissance for the purpose of a terrorist, or unlawful, act is being undertaken.

FPS also agreed to release Musemeci's memory card which it had seized for use as possible evidence in the initial criminal matter. In addition, FPS will pay Musemeci the sum of $1,500 in damages and $3,350 for his attorney's fees and costs. The stipulation also included mutual general releases.

This settlement and directive would appear to clarify what professional and amateur photographers may do when taking photographs of certain federal courthouses, subject to the specified permissible security measures. Such photographers however, need to be aware of local laws or regulations which might apply to taking photographs in public places.

This settlement is obviously a welcome and long-coming clarification of this federal statute, and what photographers as well as the public at large may do in these situations.

Joel L. Hecker, Of Counsel to Russo & Burke, 600 Third Avenue, New York, NY 10016, practices in every aspect of photography and visual arts law, including copyright, licensing, publishing, contracts, privacy rights, and other intellectual property issues. He can be reached at (212) 557-9600, website www.heckeresq.com, or via email: HeckerEsq@aol.com.

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This page contains a single entry from the blog posted on October 21, 2010 5:38 PM.

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