Around September 2011, the ACLU finally published a guideline called Know Your Rights: Photographers. The ACLU's interest in the issue is welcome and a positive force towards safety for photographers. The following caveat applies:
WARNING
Challenging Sheriff’s Dept.’s Detention of Photographers
No case law has established a general right to photograph.
The proliferation of inexpensive powerful consumer cameras has ignited
A WAR AGAINST PHOTOGRAPHY in which judges and police are often partisans opposed to the photographer.
The ACLU's guideline to any Constitutional right to photograph IS NOT the practical reality of the courts, especially the lower courts. As such, the ACLU guidelines and even the Constitution are no protection for the unwary photographer from debilitating litigation.
Furthermore, no one should depend on the ACLU to defend them even if they act in accordance with the ACLU guidelines. Such can also be said for the Legal Handbook for Photographers by Bert Krages, as well as other legal guides about the supposed rights to photograph.
Notice that in both sources, no case law is cited. After one enters a courtroom, reality is behind the door, and all things are staged through the very narrow prism of prior case law and hugely personal pathologies of an unbridled dictator (the judge), and if you are lucky, a jury.
But California and most states have created a special law to make sure a Superior Court judge can throw one in jail without a jury. Commonly called the "civil harassment" law, in California, it is Civil Code of Procedure Section 527.6.
Without the defendant even being informed of the proceeding, without defendant being present to confront the accusers, without jury, without established right to discovery, without normal evidentiary and hearsay rules, by 527.6 a person becomes instantly subject to illegal and unconstitutional arrest and incarceration.
In 2008, I was illegally ordered by California Superior Judges to stop photographing my hostile neighbors standing upon and using MY OWN PRIVATE PROPERTY.
Got that? I may not photograph hostile people who are using the real property which I exclusively own. Damn SCOTUS's affirmation of a property owner's fundamental "right to exclude" others from using the property.
I have been a photographer for over 45 years. In 2004, I started serious private photojournalism specializing in coverage of social impact events in Southern California and my local township of Yucca Valley, CA.
San Bernardino Superior Court Judge Powell spent about 10 minutes to issue an illegal 527.6 civil harassment restraining order which prevented me from excluding these people from trespassing upon my property.
Subsequent hearings revealed a plethora of false charges unrelated to photography but the core cause of the lawsuit was my assertion of a right to photograph whomever stepped foot onto my property.
Six months later, 6.5 days of trial, about 6 Judges, and $100,000 later, and an outright conspiracy of perjury by my neighbors, Judge J. David Mazurek ordered me to surrender my photographic property to the Sheriff Department which had an open criminal stalking investigation against me. I had the choice of turning in my photographs to the Sheriff who was attempting to incriminate me, or be subject to incarceration up to one year, and a raid on my house. I was also order to pay $18,000 to the family that persecuted me.
About 9 months later, I discovered the plaintiff's attorney, Mark S. Mahoney, is a Judge pro Temp in that same courthouse, and receives payments authorized by Judge Powell to be a contract defender for the county. I also learned my neighbors are politically connected to Assemblyman Paul Cook, who I believe is a member of their church.
Frontier justice indeed.
The Fourth District Court of Appeal, Division 2 refused to explicitly declare that the order to surrender my photographs was an illegal order, but they did reverse the order. Yet the Sheriff Department refuses to release them.
However, in a highly fraudulent defamatory opinion rife with factual and legal error, Justice Betty Ann Richli wrote that the order prohibiting me from photographing my hostile neighbors using my property was affirmed.
The California Supreme Court denied review.
The Southern California ACLU was fully briefed on the matter throughout the ordeal, as were numerous civil liberties watchdog organizations. I even hand delivered to the ACLU Los Angeles office a 35 page brief.
ACLU-SoCal never responded to my calls for help. They did not even bother to tell me they could not help. Nor did they acknowledge receipt of my report.
As it turns out, THERE IS NO CASE LAW that AFFIRMS any general individual right to photograph. The recent Federal case of Glik v. Cuniffe is the best we have, but even it is narrowed to a right to photograph police. Glik remains subject to appeal, AND, it only controls in the Second District. The rest of the country has no Glik precedent.