Daryl Khan was standing in a New York City courthouse, waiting to take video of a man who’d just been sentenced for murder – the latest chapter in a series of stories he’d written about violence in a rival pair of housing developments.
Khan was standing in a public space alongside other reporters and camera crews, and gathered footage only from outside the courtroom once the June 24 sentencing had been adjourned. He wasn’t credentialed to cover the event, but press credentials aren’t required to stand in the hallway or to take photographs.
Still, a court officer arrested Khan, detained him for several hours and forced him to delete the contents of his camera. Worse, Khan wound up with a disorderly conduct charge.
Khan is finally off the legal hook, as a judge dismissed the disorderly conduct charges in light of a motion filed earlier this month by Mickey Osterreicher, the general counsel for the National Press Photographers Association. Richard Ross, a New York Criminal Court judge, granted the motion, which argued that Khan was not causing a public disturbance and in fact acting in the public interest as a journalist.
Khan, an adjunct professor in journalism at the City University of New York’s Graduate School of Journalism who was reporting for the nonprofit Juvenile Justice Information Exchange, faced potential jail time.
Now, the script is flipped. Khan didn’t respond to the SPLC’s requests for comment, but Osterreicher said he hasn’t ruled out filing a claim for civil damages alleging that Khan’s civil rights were violated (known as a “Section 1983” claim under federal law).
Federal courts have recognized at least some degree of First Amendment protection for the act of recording news events in public spaces. Journalists also have the added protection of a federal statute, the Privacy Protection Act, that imposes additional legal hurdles before police can search for a journalist’s unpublished work.
There are extremely limited circumstances, according to Osterreicher, in which it would be appropriate for a law enforcement officer to seize a recording device, but there are none that would allow the officer to search and examine the device’s contents without permission or a search warrant, as occurred with Khan.
“In exigent circumstances, at least when it comes to somebody performing their official circumstances in a public place,” Osterreicher said, “(the law) basically says that if an officer has probable cause to believe that a serious crime has been committed — which means like a serious injury, not minor misdemeanor — and they have good-faith belief that you have evidence of that crime on your phone, for example, and they have good-faith belief that that evidence will disappear if they don’t take action, they can seize your cellphone. They can’t look at it.”
Khan’s circumstances, according to Osterreicher, did not come close to matching those criteria, and even if they had, the officer’s insistence that Khan delete the camera’s contents was inappropriate regardless.
There’s not much in the way of specific legal guidelines for these situations, according to Osterreicher, but the Department of Justice has previously taken the position that “under the First Amendment, there are no circumstances under which the contents of a camera or recording device should be deleted or destroyed.”
A Section 1983 complaint could include claims under the Fourth Amendment (guarding against unreasonable searches and seizures) and Fourteenth Amendment (ensuring equal protection under the law) on the grounds that Khan was unlawfully detained and forced to delete contents of his camera.