On Monday, the First Amendment case of Temple photojournalism student Ian Van Kuyk, accused of misdemeanors after he refused to stop taking photographs of police during an arrest at 17th and Dickinson in South Philadelphia, comes to court. Van Kuyk was wrestled to the ground when he refused to comply with police orders to leave the street and stop taking photographs. The Philadelphia Police Department says the arrest had nothing to do with Van Kuyk taking photographs, but is based on his interfering with police activity. Nevertheless, as is often the case, the misdemeanor charges are vague.

Immediately, Van Kuyk’s case was taken up by Mickey Osterreicher, a lawyer with the National Press Photographers Association who handles photographer intimidation cases. Osterreicher was preparing the case and had coordinated with civil rights lawyers from the ACLU, but Van Kuyk has now hired a private attorney.

Nevertheless, it was Osterreicher, a former photojournalist based in Buffalo, whose advocacy has helped to force the Philadelphia Police Department to review its policies and training regarding the First Amendment. We caught up with him this week for an interview by phone and e-mail.

Nathaniel Popkin: These kinds of cases of police violating photographers’ First Amendment rights have been increasing recently.

Mickey Osterreicher: There have been sporadic cases, but I would say in the last 18 months to two years, we’ve seen them with increasing frequency. I’m seeing new cases on a daily basis around the country. It has only been exacerbated by the Occupy movement. Many police departments (large and small) do not have policies or guidelines addressing the issue of the right to record/photograph and those that do provide very little training on the subject. Without a written policy disciplinary action against officers for violations is almost impossible and where policies do exist such punitive measures are almost never taken, even in cases where the municipality has been successfully sued. The result of such police ignorance and arrogance concerning these constitutional rights is a costly combination, ultimately born by taxpayers who can ill afford it.

NP: Philadelphia Police Chief Charles Ramsey was compelled to respond to the public’s concerns after pressure brought by you following two earlier incidents. His letter seemed clear, or was there a subtext I missed?

MO: There is no subtext that I am aware of. It is my understanding Commissioner Ramsey honestly and forthrightly wishes to improve community relations with his police force which appear to have many challenges, not just in dealing with those who take pictures. As in many similar situations, police claim that Mr. Van Kuyk was not arrested just for taking pictures; instead, they allege that he was disorderly, obstructed their ability to perform their official duties and resisted arrest. These are the usual catch-all charges used as pretext when police don’t like what a person is doing but have no other grounds upon which to arrest someone. In this case since taking pictures by itself is not a crime they charged him with all of the above misdemeanors and also threw in the felony charge of hindering apprehension, as if his photography interfered with their initial traffic stop and arrest. Fortunately that charge has already been dropped.

NP: Generally speaking the First Amendment protects photographers who are shooting subjects in public.

MO: But as in every law, the First Amendment is not an absolute. There are time, place and manner restrictions. If an officer is telling you nicely to move back a few feet, it’s reasonable. If he tells you to go away, that’s not all right. Restrictive ordinances have to be posted. There was a case in Silver Spring, MD where photographers were told they can’t take pictures on a private street. This was overturned because of common sense. If it looks like a duck and sounds like a duck, it’s a duck. You get to do the same kinds of things on the private street you get to do on a city street.

However, it’s one thing for your readers to know what their rights are, and another for the police to know and care. If they don’t care, they’re not going to care.

NP: Use of the pictures can be restricted, however.

MO: There’s a difference between taking them and how they are used. If you’re in a public space you can take a picture of someone. Can you then use it to sell something? No. You’ll probably get sued. But for editorial purposes–journalistic uses–these are given the largest range of allowed use and are protected the most.

NP: Everything changes on private property.

MO: Yes there is always a difference depending on the rights of the property owner. When people are in public there is no reasonable expectation of privacy (this is really what defines public vs. private when it comes to the right to record/photograph). People cannot break the law in order to take pictures (i.e. a news photographer cannot speed or run a red light in order to get to a fire more quickly). The line becomes a little more blurry when police try to enforce trespassing restrictions in traditionally public forums such as parks (where many Occupiers tend to encamp).

So it is one thing to take pictures of a building from a public street or area and another to go on private property, where one would need permission of the property owner. If you’re trespassing in what’s clearly posted as private property then you’re making yourself susceptible.

NP: You expect that your advocacy work with the NPPA will have an effect on the Philadelphia police?

MO: I’m assuming I will hear back from the Philadelphia Police Department in terms of the results of their investigation and we’ll go from there. It’s not this specific case but the concept: there is nothing wrong with people photographing a Philadelphia police officer doing his duty in a public place. They may not like being photographed but if they’re out in public that’s how it is. You can’t order somebody to stop taking photos and then arrest them for saying no.