Fall 2009

California Court: Photographer Lacks First Amendment Right to Stop, Shoot Highway Accident Scene

Holland & Knight Newsletter
Shelley G. Hurwitz

A federal court in Northern California has ruled that police officers did not violate a newspaper photographer’s First Amendment rights when they prevented him from taking photographs of an accident scene.

In Raymond Chavez v. City of Oakland, the plaintiff, a staff photographer for the Oakland Tribune, was driving on the highway when he observed the aftermath of a traffic accident. He left his car in a lane of traffic, exited the vehicle and began to take photographs of the scene for the Tribune. A police officer directed the plaintiff to move his car. The plaintiff responded twice that as a member of the media he had the right to be there. The officer again instructed the plaintiff to return to his car and leave. The plaintiff said okay and started walking to his car. As the plaintiff was walking to his car, he heard an ambulance at the scene behind him, and he turned to look. The officer then grabbed the plaintiff’s press credential, and demanded his driver’s license and proof of insurance, as well as vehicle registration. The plaintiff started walking toward his car to retrieve his registration when he heard the first California Highway Control (CHP) car arrive at the scene, which by this time was approximately 30 minutes after the accident. Believing that the late arrival of the CHP officers was newsworthy, the plaintiff raised his camera to take a picture of the arriving CHP car, while he continued to walk. The officer immediately placed him under arrest.

The plaintiff subsequently filed a section 1983 civil rights action, alleging that the officers violated his First Amendment rights and that they arrested him without probable cause in violation of his Fourth Amendment rights.

But the court granted the officers’ motion for summary judgment, finding that their conduct did not violate the First Amendment because the press has no First Amendment right to access accident or crime scenes if the general public is excluded. The court further held that, even assuming the officers arrested him for the purpose of preventing him from taking photographs, the plaintiff did not have a First Amendment right to take the photographs in the first place as he had no evidence showing that the general public is allowed access to accident sites. While under state and local law the press may have a right to access accident and crime scenes, those rights are not relevant to whether the plaintiff, as a member of the press, had a federal First Amendment right. The court also noted that common sense dictates that members of the public are not allowed to exit their cars in the middle of the freeway to view an accident scene.

Moreover, the officers had qualified immunity from the Fourth Amendment claims because, under the circumstances presented – including the plaintiff leaving his vehicle in a lane of traffic and causing a fire truck to merge to avoid the plaintiff’s vehicle – it would not be clear to a reasonable officer that he could not arrest the plaintiff for violating the sections of the Vehicle Code that prohibit a driver from stopping on a highway so as to impede traffic, and make it unlawful to willfully refuse to comply with a lawful order of a peace officer. The court rejected the plaintiff’s assertion that he intended to move his car after asked by the officer as irrelevant because the Vehicle Code does not provide an exception for people who briefly exit their car on the freeway to take photographs – it prohibits the stopping of the car period. The fact that only a few minutes passed between when he was directed to move his car and when he finally agreed to move his car does not mean that the plaintiff did not – at least initially – willfully refuse to comply with the officer’s orders.

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