By Carlos Miller
In a clear violation of his First Amendment rights, Tennessee deputy Starling McCloud arrested Scott Conover last week for photographing him with an IPhone during a traffic stop on a public road.
McCloud went as far as using two sets of handcuffs to arrest Conover, according to a witness statement from another police officer.
McCloud ordered Conover to delete the photo, but Conover rightly refused, according to the arrest report,
So McCloud arrested Conover and charged him “unlawful photography”, which is a violation under the Tennessee Code.
However, the law specifically states that the victim would either have to be a minor or have a “reasonable expectation of privacy”.
McCloud, an adult who was on-duty and standing on the side of a public road, did not have any reasonable expectations of privacy.
This is the way the law reads:
39-13-605. Unlawful photographing in violation of privacy. —
(a) It is an offense for a person to knowingly photograph, or cause to be photographed an individual, when the individual is in a place where there is a reasonable expectation of privacy, without the prior effective consent of the individual, or in the case of a minor, without the prior effective consent of the minor’s parent or guardian, if the photograph:
- Would offend or embarrass an ordinary person if such person appeared in the photograph; and
- Was taken for the purpose of sexual arousal or gratification of the defendant.
(b) As used in this section, unless the context otherwise requires, “photograph” means any photograph or photographic reproduction, still or moving, or any videotape or live television transmission of any individual so that the individual is readily identifiable.
(c) All photographs taken in violation of this section shall be confiscated and, after their use as evidence, destroyed.
(d)
- A violation of this section is a Class A misdemeanor.
- If the defendant disseminates or permits the dissemination of the photograph to any other person, a violation of this section is a Class E felony.
McCloud also charged Conover for “pointing a laser at a law enforcement officer” as well as “disorderly conduct”.
First of all, the IPhone does not emit a laser and second of all, anybody familiar with police tactics knows that disorderly conduct is a charge police use when they can’t think of an actual crime committed.
And if you read the arrest report and the witness statement linked above - as well as a witness statement from a third officer – you can see that the basis of the arrest was solely because Conover refused to delete the photo he took of McCloud.
And it is illegal for a law enforcement officer to order a civilian to delete a photo without a court order.
Popularity: 16% [?]
22 responses so far ↓
1 enhager // Jul 16, 2008 at 2:43 PM
This is the most popular story on the Tricities.com – have you been following the comments?
2 Carlos Miller // Jul 16, 2008 at 4:36 PM
I haven’t been following the comments because I’m sure it’s the usual argument you get following these stories with most people being outraged and a few “always do what the cops say, no matter what it is” people blaming the photographer.
But I did notice one of my loyal readers posted my link, which is why I’m getting good traffic from that story.
So thanks.
3 Clayton Jenkins // Jul 16, 2008 at 6:49 PM
I think you have taken too narrow an interpretation of the cited law (note IANAL). You say “However, the law specifically states that the victim would either have to be a minor or have a “reasonable expectation of privacy”.” My interpretation of the cited law is that if there is no reasonable expectation of privacy, there is no restriction and the law is not applicable on any level.
I see a restriction if there is a reasonable expectation of privacy and the subject of the photo is a minor, the required prior effective consent can only be given by the parent/guardian. That’s it. Prior consent is needed if the picture is taken where there is a reasonable expectation of privacy and the photo is intended to embarrass/offend or intended for sexual purposes and a minor can’t consent to that.
At least that’s how I read it. I don’t see anything applicable in the law to the reported events.
Thank you for shining a bright light on these abuses of power.
4 Dr. Donald B. MacGowan // Aug 25, 2008 at 12:37 PM
Well–such overzealous enforcement is exactly why we have courts–to decide if in fact a law has been broken.
One hopes that the state that spawned the likes of Congressman Davey Crockett still has fair and impartial judges, not tainted by the reek of neocon fascism, who believe in the Constitution and the Rights of Man.
But I’m not holding my breath. I want to know how this case is disposed–if I were the Prosecutor in this county, I’d have a chat with the Chief of Police and there’d be yet one more washed-up police officer asking citizens if they’d “like fries with that, SIR?”.
What the fuck is wrong with this officer’s self esteem, anyway? He’s the kind that give honest, hard-working cops a bad name. You’d think his fellow officers would drum such an obvious turd out of their ranks.
5 Oxnard // Aug 26, 2008 at 1:02 PM
The president set the example of tresting us without rights, the cops follow and the courts usually side with the officer. Welcome to Big Brother.
6 Phiz // Aug 26, 2008 at 5:07 PM
Before you can give “honest, hard-working cops” a bad name, you have to find some. This is exactly the kind of behavior the police look for in recruits. He’ll probably get a damn medal for his “counter-terrorist” actions.
7 Papabrow // Aug 27, 2008 at 11:13 AM
The officer is a servant of the public and was photographed while he was working in a public job. The man had every right to take a photograph of him as a regular citizen and has even more of a right to photograph him as a police officer while on duty. It sounds to me a little like this officer was doing something wrong while on the job and didn’t want it documented. Or else the man was doing something other than taking the photo such as taunting the officer with maybe… a laser pointer which is in fact illegal to do to a police officer while on duty because you would be interfering with law enforcement and on a traffic stop interfering with a criminal investigation. Based on this article I would say that the man had every right to photograph this officer. But it seems there may be more to the story than just what was written and hopefully it comes out in court because if this man was solely taking a picture alone the officer should definitely be reprimanded for his actions and put under an investigation because I doubt this would have been the first time for him to do something like this.
8 annymous // Aug 27, 2008 at 2:18 PM
the idiot with the phone gets arrested because the person he photographed seemingly did NOT give permission to be photographed. in the article that was cited as tennessee law that was the fourth or fifth sentence. reread what you missed before you fight. i agree that no harm was done and the cop was overreacting but it was within his right and outside the photographer
9 Carlos Miller // Aug 27, 2008 at 2:37 PM
anny,
Where are you reading because where I read, it states the person needs to have a “reasonable expectation of privacy”.
A cop standing on the side of a public road in the line of duty does not have a reasonable expectation of privacy.
10 Ali // Sep 1, 2008 at 11:35 AM
We support you from Turkey.
11 Nephilim70 // Sep 20, 2008 at 3:23 AM
Refusing to turn off a video camera or delete photos can sometimes save your neck.
Especially when the officers involved are acting illegally and breaking the law in the first place.
http://www.youtube.com/watch?v=S1RHcIFA62Q
Best thing to do in this situation is stand up for your rights NO MATTER WHAT.
The officers involved in this case SHOULD legally be charged with :
1) Creating a FALSE SUSPICION and
2) Enacting an illegal arrest
12 anonymous // Sep 21, 2008 at 11:19 AM
If a company takes a photo of you but deletes it, do they still maintain rights to the image?
13 Carlos Miller // Sep 21, 2008 at 12:27 PM
In what respect, anon?
If the photo has been deleted, then there is no image to have rights to.
14 Anom // Dec 28, 2008 at 8:30 PM
The case Robinson V Fetterman is all that needs to be cited here. This is an established right and very clear on photography being an extension of your First Amendment Rights to Free Speech.
15 Robert // Oct 1, 2009 at 11:37 PM
Brilliant, thanks! stumbled…
16 shizzy manizzy // Oct 11, 2009 at 10:30 PM
Here’s an idea:
A REGISTERED LAW-ENFORCEMENT OFFENDER LIST
We put the names and addresses of all abusive cops and biased judges online with their pictures and addresses so we can all steer clear of these bastards. The public has a right to stay informed.
17 dbltapp // Oct 12, 2009 at 8:35 PM
Referencing a case like Robinson V Fetterman without linking to it is illegal… or maybe just lazy.
18 Tim // Oct 31, 2009 at 1:26 PM
I stumbled on this one this one this morning, and following up on “unlawful photography” led me to your website. http://www.cbc.ca/cp/Oddities/091028/K102821AU.html
So, you’re trying to tell me taking photos of your wife or girlfriend for your own “sexual gratification” is illegal in Tennessee? Granted the guy shouldn’t have done what he did, however I’m sure there are millions of photos of partners that were taken for a thrill. the way I read the law it’s illegal to take consensual naughty photos? It’s against the law to take a photo of a cheerleader at a college game if you’re going to go home and masturbate while looking at it? the enforcement possibilities are staggering!
19 dbltapp // Nov 2, 2009 at 1:47 PM
The woman had a reasonable expectation of privacy…
20 J. Michael Considine, Jr. // Jun 8, 2010 at 12:06 AM
June 8, 2010
Dear Carlos,
I represented Allen Robinson in the federal trial in Robinson v. Fetterman, 378 F. Supp. 2nd 534 (E.D.Pa. 2005), whch clarified the right of citizens to photgraph police officers in the performance of their duties under the First Amendment. The U.S. Supreme Court has never ruled on this specific issue. You and all photjournalists should read the opinion because it is likely your First Amendment rights have been or will be violated by police in the future. If I can ever help you, call me at 610-431-3288. I am teaching in Chna until June 16. Here there is still legal torture and no such right.
J. Michael Considine, Jr.
21 Rusty Carr // Jun 8, 2010 at 12:40 AM
Ain’t the truth, but INSTEAD they close ranks and protect the miscreants that wormed their way into law enforcement. Makes me want to puke.
22 sam marcus // Jul 20, 2010 at 12:23 PM
Even though photographers that take pictures of police during their job, or even any public official eating a burger or buying a playboy magazine has the right to do so, they will pay a price of thousands of dollars defending their right to do so.
I doubt that the expense of hiring an attorney or time lost from work is recoverable to the photographer.
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