Friday, September 9, 2011


PRESSING MATTERS: Big Island blogger Damon Tucker's first court appearance after apparently being beaten by a Hawai`i Island Police Department (HiPD) officer for photographing a fight in progress outside a Pahoa bar didn't yield a plea after his attorney asked for a jury trial and the case was remanded to circuit court, according to coverage by Big Island Chronicle (BIC) reporter Tiffany Hunt Edwards.

Tucker was arrested for "obstructing police operations" even though he claims he was across the street from the police activity he was recording on his iPhone

The big news is, however, that Tucker now has possession of the confiscated phone and the video he took and apparently it shows he was 10-15 feet away, across the street from the altercation, as he had claimed.

But the police report may hold the key to the disposition of the case.

Edwards quotes the report as saying:

“This after officers upon responding to an affray of approx. 10 to 20 adults fighting at the Pahoa Vllg Club, deft [defendant] repeatedly refused to stop physically pushing himself between officers while they were engaged in interviewing witnesses and suspects, and appeared to be very intoxicated. Deft then shoved his camera into the faces of victims at the scene while they were interviewed, and propelled them to become irate. Furthermore, Deft then proceeded onto the roadway placing officers and himself in danger of being hit by passing vehicle. Deft cited he was representative with the Media, however deft was unable to produce proper Media Credentials, (emphasis added) thereby deft became combative and was subsequently arrested.”

Edwards writes that:

Tucker, in responding to the police report’s assertion that he was intoxicated in the incident involving police, shared a statement from a bar bouncer that Tucker was “buzzed” but not drunk. The recovered footage seen by this reporter is pointed toward three police officers and at least one bystander standing at the entrance to the Luquin’s Mexican Restaurant parking lot, across the street from Pahoa Village Club. One of the officers emphatically tells Tucker he is being warned to stop videotaping.

But the statement that stands out to us is that "Deft cited he was representative with the Media, however deft was unable to produce proper Media Credentials" because, according to a recent ruling by the First Court of Appeals in Boston in allowing a civil case to go forward, the public has the same right as a reporter to photograph police in a public place.

According to an article in New American "Simon Glik, a Boston attorney... was arrested on the evening of October 1, 2007 for using his cellphone to record police officers making an arrest on the Boston Common."

But in rejecting the officers' claim of immunity the three-judge panel not only unanimously addressed the reporter vs. public issue but realities in an age of cell phone cameras, "new media" and bloggers.

The ruling says, in part:

The First Amendment issue here is, as the parties frame it, fairly narrow... Is there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative...

(C)hanges in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the newsgathering protections of the First Amendment cannot turn on professional credentials or status.

The video evidence apparently shows that the claim that Tucker was interfering with a police operation is shibai and certainly under any circumstances beating someone to stop them from taking photographs is not the proper response of police.

As we noted previously, although we haven't been able to ascertain the current procedures on the Big Island, most other jurisdictions stopped issuing official police press passes- which usually solely enabled reporters to go behind police lines at crime scenes- many years ago. That is the case on Kaua`i and in Honolulu and has been done across the mainland specifically because the proliferation of news sources in the age of the internet made distinctions much too vague and arbitrary for a legal differentiation to hold up in court.

If, as is apparently the case, the HiPD is going to try to claim that any part of the case hinges on whether Tucker is indeed a "member of the press"- whatever the heck that is these days- they’re going to be digging themselves a hole in which they will eventually be buried.

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