I'll start with some background info for my question.

  1. I'm a photojournalist based in Michigan.

  2. I was on (what appeared to be) a public sidewalk.

  3. I was taking photos of the Oakland County Jail for a story I was working on.

I was outside the OCSO jail getting some photo and video for a story when several LEOs approached me. One addressed herself as a lieutenant. She told me I was in a "secure jail area" and had to stop taking photos. My argument was that I was on a public sidewalk, exercising my 1st amendment rights. She responded, telling me that if I didn't leave, I'd be arrested for trespassing. Another officer said I could take photos if I went to the other side of a sign. I complied, and continued my work. He ordered that I go to the other side of a sign that was farther away.

Were they right?

  • 1
    If that particular "secure jail area" has never been tested in a court of law, you'd have to ask a judge to know for certain. – phoog Dec 9 '15 at 7:06

In the scenario you described, you were both right:

Police have no authority to demand that you leave a public space because you are photographing, nor does the government have the right to prevent you from photographing anything that is visible from a public space, including government facilities or employees.

However, the police would likely have followed through on their threat to arrest you. In that event, any vindication for wrongful arrest and violation of your civil rights would only come (if ever) at the end of protracted and expensive litigation in the courts. (A plethora of examples is accumulated by watchdog groups like the ACLU and Photography Is Not A Crime.)

Publicly owned property is not necessarily accessible to the public. The White House is publicly owned - you can't just walk into it.

The "public sidewalk" is owned by somebody - probably the city or it may be on the same parcel of land as the jail in which case it would probably be owned by the state of Michigan. The owner can deny access to that "public" place for all sorts of reasons including for safety and security.

Unless the area were fenced off, your walking onto it is not trespassing. However, remaining on it after being asked to leave by someone with authority over it is trespassing. A LEO probably has authority over the land irrespective of who actually owns it; the owner probably has or would delegate such authority to a LEO.

In addition, the owner of the land can prohibit the taking of pictures from that land.

It seems that the LEOs concerned behaved reasonably and clearly prescribed the area within which you were not to take pictures.

They were probably right.

  • The LEO was giving me very conflicting info. First I could film in one location and then I couldn't. The property was public land. – Alex Volpe Dec 9 '15 at 4:07
  • There is no such thing as public land - there is land owned by the government and accessible to the public on whatever conditions the government decides. – Dale M Dec 9 '15 at 4:10
  • 1
    A public sidewalk is, regardless of who owns it, a public place. It's part of the public highway (in the common-law sense of the term). That is, it is open to access by the public. There are many such public places under private ownership in New York City, for example. – phoog Dec 9 '15 at 7:05
  • @phoog correct, but there are circumstances where these can be closed to the public, roadworks for example. – Dale M Dec 9 '15 at 7:14
  • Sure, but if I'm on the sidewalk in front of city hall and a police officer tells me to stop taking pictures and leave, is it really trespass if I refuse to obey? I can think of lots of other charges that would apply; trespass, I'm not so sure. – phoog Dec 9 '15 at 7:26

As far as the issue of "Can a police officer arrest you?", practically speaking a police officer can arrest you any time they want. So if you're asking what you can do without being arrested, then you pretty much have to follow police officers' instructions.

If you're willing to be arrested as long as you have a valid legal defense, then that's a different issue. Legally, a police officer cannot arrest anyone unless the police officer has probable cause that the arrestee has or is violating a statute. So a first step (and again, this is presuming that you merely wish to have a valid legal defense, not that you wish to avoid being arrested) is to demand to know what statute you are violating. If they refuse to tell you, then that allows you an entrapment defense.

It depends on whether you were really on a public sidewalk or not. From looking at Google Maps, the sidewalk in front of the jail appears to be a good 40-50 feet from the public road, and mere feet from the building in places. It could very well be on jail land. The "road" behind and to the sides of the jail might actually be a driveway, since it doesn't do anything but loop around the jail.

The fact that they were threatening to charge you with trespassing, as opposed to something else, indicates that they thought you were on jail land and not a public sidewalk. You can be loitering on a public sidewalk, but you can't be trespassing on it. Although it's possible that they were wrong, if you weren't sure, then you were probably better off deferring to them.

An officer tells you to leave a piece of property then you leave, period. The officer represents the state and the officer can revoke your right to being there and if you do not comply you can be arrested for trespassing. Now you are walking down the sidewalk and some officer tells you to turn around, that you cannot proceed down the sidewalk then if you try to go past the officer you will be arrested. It's pretty simple. Maybe there was a good reason to not go down the sidewalk, i.e. hostage situation, bomb threat, gas leak etc. The officer does not have to explain it, just telling you not to go is sufficient. If you want to argue that a piece of sidewalk is public property or not then get it surveyed. But even if it is public property the officer can still kick you off it.

  • 2
    Did you know that an officer cannot revoke any rights, but he may lawfully order you to leave under certain circumstances? Whether or not the order was lawful derives from the objective facts, and not from the power that the officer has. – user6726 Jan 27 '17 at 20:46
  • To user6726. I agree with what you are saying. But under the premise of the question it is really semantics. It is a "right" or a "privilege"? That is a debate for the courts, but at the end of the day the results are the same, don't leave when told to then you get arrested. – Coyote62901 Jan 27 '17 at 20:54

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