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MyraB
MyraB, Lawyer
Category: Criminal Law
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Experience:  I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
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I was detained briefly and "written up" by law enforcement

Customer Question

I was detained briefly and "written up" by law enforcement in Illinios today. They told me a report would be sent to Washington, and I would end up on a terrorist watch list. I am a Massachusetts resident, an artist, and a journalist. I was photographing on a public sidewalk in front of a fuel processing plant. The police officers asked to see the photos, and asked if I would delete them. I asked if I could ask my lawyer first. I don't actually have one, but my delay tactic worked. The supervising officer told me it's not illegal to photograph, but it's going to cause problems anyway. Now I'm having to consider extending my stay here in IL to get this taken care of, to whatever extent I can do so. I think I need to go to the police station and ask for a copy of whatever report they have made. I am considering bringing a recording device, since I am a journalist. I am also considering having someone live on my phone to listen in on the conversation. I don't have a lawyer, and cant afford one, so it will probably just be a friend. Anyone have any advice for me to 1) get a copy of the report, whatever kind that may be and 2) avoid or verify any terrorist watch list status. Is it possible they were just bluffing about the terrorist watch list thing? They said they hope I don't plan on flying or visiting any goverment monuments... I was very polite and cooperative by the way. Nothing ever got heated with the officers.
Submitted: 11 months ago.
Category: Criminal Law
Expert:  MyraB replied 11 months ago.
Hello and thank you for your question. I am sorry to hear that this happened.

It is difficult to determine what the police will do in these circumstances, but it is likely that they saw what they considered suspicious behavior and checked it out. They likely asked questions and guaged your reaction to determine your intentions. Their intent with the warning about the terrorist list may have been to let you know they were keeping an eye on you. However, if everyone who took photos of fuel processing plants was put on a watch list, the list would be very long and entirely useless.

It is unlikely that the police wrote a report or reported you or that they will report you. And if they did there is nothing you can do to talk them out of it now. If you go into the police station with a recorder and with a lawyer (or someone who is pretending to be a lawyer, which I would not advise) that might cause more suspicion and it is unlikely you would accomplish anything. Also, lllinois is a two-party consent state for recordings, meaning you must have the consent of both parties to record a conversation and it is illegal to surreptitiously record a conversation. So, you don't want to do that.

You don't need to delay or rearrange your travel plans. If you want to pursue this, you can do so from home. You can write to request any police report and determine if you are on any watch list. The FBI Terrorist Screening Center deals with the watch list and you can find information on who is included and redress procedures here http://www.fbi.gov/about-us/nsb/tsc/tsc_faqs#FAQ3

I understand that this incident was unfortunate and unsettling. I hope this information is helpful and will offer some perspective on the situation. I wish you well.

Please feel free to ask any follow-up questions.
Customer: replied 11 months ago.
Thank you Myra. I read that the Illinois eavesdropping law was ruled in 2013 to "likely violate" the first amendment. From Wikipedia: " on April 8, 2013, U.S. District Judge Amy St. Eve signed an order permanently enjoining Alvarez from enforcing the wiretapping law against any person who openly records the audible communications of police."
I understand any questioning of police is likely to "cause more suspicion", but I'm pissed off the more I think and read a out this. I'm considering making an example out of this harassment. I'm also considering returning to the site today to capture the images that I was unable to as a result of this harassment. If I decide to exercise my right to capture images from this public place, I would set a recording device to capture the activity and response.. Would you advise retaining a lawyer first? If they try to take my recording device or stop me, is there anything particular I should or shouldn't say? I should probably prepare to be arrested--is there any advise for this preparation? I mean is there any free legal help available for citizens or journalists in these situations?
Expert:  MyraB replied 11 months ago.

Thank you for your response and the opportunity to further assist you.

 

It is true that openly recording would likely be protected by the First Amendment, and that is why I stated that it would be illegal to surreptitiously record a conversation - meaning without consent or knowledge of the other party or parties to the conversation, which is what it seemed that you were thinking of doing.

It is also true that the police could have handled this situation better. They didn't need to intimidate or threaten you with the watch list. It appears that it was the police and not you who were in the wrong in this situation. You may want to file a complaint with the superior officer or police chief about the conduct of the officers. You can certainly return and take all the photographs you need and want and should not be at risk of arrest, as you have every right to do so.

The Digital Media Law Project http://www.dmlp.org/ assists journalists and others navigate the law on information gathering including recording, photographs and video-taping and offers legal resources and advice.

I wish you well. Please let me know if you need any further information.

MyraB, Lawyer
Category: Criminal Law
Satisfied Customers: 371
Experience: I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
MyraB and 3 other Criminal Law Specialists are ready to help you
Customer: replied 11 months ago.

Thanks again. I am planning to go to the police station and file a complaint. I will ask for a complaint form and likely send it by mail, in writing, with a some strategic carbon copies. I plan to mention "harassment, malicious threats, and violation of 1st amendment rights" with regard to being stopped, detained, being told to delete the images, and that I would be on a terrorist watch list. Even though the officers were "polite", the threat was serious and of a broadly and materially damaging nature, if the threat is followed through with (and even if it's not followed through with, considering I'm not sure if I even have the right or ability to know whether they follow through with the threat--I'm just left here wondering if a lifetime of being red-flagged and denied my rights is to follow this incident).


 


From what I understand I basically have no recourse against the Feds if I end up on the list, other than asking for a review of my status, which could result in a dead end. I wonder if I have any recourse against the local police officials for landing me on there in the first place. I imagine there is little precedence at this point.


 


I am going to ask for the officers names, and for a copy of the police procedures manual so I can review it for specific violations to reference.


 


I am also considering obtaining a permit to protest or demonstrate on the public sidewalk where the incident occurred. I figure this will serve the purpose of proactively allowing my presence and reduce the chance I am arrested or harassed by company officials when I revisit the scene (at least I'll have a piece of paper). It will also let them know that I am serious about my rights and serve as a public demonstration and protest of this incident.


 


I wonder if anything I mention raises any red flags, or prompts any commentary from you. Thank you for your assistance so far.


 


 

Expert:  MyraB replied 11 months ago.
Thank you for your response.

With these kinds of incidents there is often a chilling effect regarding the exercise of rights - people think twice, begin to doubt themselves and don't do something they have a right to do because they are shaken and intimidated. In the long run this feeds the fear and allows rights to be whittled down. It is important that citizens remain vigilant of their civil rights and I admire your resolve to confront rather than ignore the situation.

Your proposed response certainly seems reasonable and I don't see any red flags. However, you may want to review the laws on picketing, including any local ordinances, which you may be able to do without having to obtain a permit.

I wish you luck.

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