TV News cameraman attacked by mall security guards at Valley Plaza in Bakersfield,CA

http://kbak.bakersfield.com/local/story/4988161p-5045018c.html
First Amendment Issues Raised As Valley Plaza Security Guards Tackle
29 Eyewitness Photographer To Ground


Fifty-two year-old news photographer Chuck Dennis was almost done
videotaping the aftermath of an armed robbery at Valley Plaza Mall on
September 9th. As Dennis was in the parking lot shooting Bakersfield
police on scene just outside Macy's, a man in plain clothes approached
Dennis and barks out, "Sir, I'm going to ask you to stop filming at
this point and leave the mall please," said the plain clothes man
without identifying himself.
Dennis responds he's not leaving and tells the man in plain clothes,
later identified as head security guard Dexter Owens that under the
U.S. Constitution, he's got a right to be there doing his job. Owens
attempts to grab the camera away from Dennis as he grabs the
photographer from behind in a choke hold. At least three other
security guards come and tackle Dennis to the ground who is still
holding on to his camera. Everything is caught on tape. The camera
never stopped rolling. The whole incident baffled several local
attorneys who have nothing to do with the case.

"The big question is, was it necessary to wrestle somebody to the
ground?" said attorney George Martin with Borton-Petrini and Conron
law firm. "The little bit of tape I saw was twenty seconds of
discussion and boom, the camera goes to the ground. That's way over
the line," said Martin.

Dennis suffered cuts and bruises in his encounter with the security
guards as they took him down. He was handcuffed and led away to a room
in the mall and told he was being charged with trespassing. Owens says
Dennis can not shoot without Valley Plaza's permission.

"If you want permission to film here, you have to ask us, you don't
tell us," said Owens.

The incident raises issues of First Amendment rights for the news
media and for the public. Along with Martin, attorney David Stiles of
Chain-Younger and Kern County Counsel Bernard Barman say though Valley
Plaza is private property, it is considered public access. That they
say, means the news media can go where the public can go.

Valley Plaza has another view. Marketing Director Marcella Anthony
would not address the issue of why the security guards knocked Dennis
to the ground nor would she grant an interview on issues relating to
access under the First Amendment.

In a written statement she wrote, "We will always support and uphold
the rights guaranteed to all of us under the First Amendment. We are
in agreement the press has a right to go where the public can go. We
further agree the public in California has certain rights to access a
shopping center. However, these rights are subject to reasonable
restrictions of the property owners. Our policies and practices
reflect the balance of these two important rights."

Dennis has retained an attorney and is considering filing legal action
for violation of civil rights. KBAK-TV General Manager Wayne Lansche
says 29 Eyewitness News will continue to gather the news wherever it
happens, including Valley Plaza.
---------

Valley Plaza's website: http://www.valleyplazamall.com

My Opinion:
Wow, this is just an outrage! Some of these rent-a-cops really have
anger management issues. The problem is they think they are the law.
Like that one jerk that harassed me at a mall in New Jersey.
They treat photographers like they shoplifted or committed a felony.
Makes me glad I didn't resist that rent-a-cop in that NJ Mall earlier
this year, now I know what could've happened!
Any mall that treats the press like the actions of those guards in the
Valley Plaza video is not a place I'd want to shop in!
BTW I think that malls should be considered public access and
photography allowed. After all, there are a bunch of guards watching
you on hidden cameras, so you should be allowed to take pictures, and
the press should definately be allowed to do their stories. Mall
owners claim "Private property" and "would you like someone going into
your home and taking pictures?". But a mall is not a private
residence, it's a public access building owned by a mall real estate
company, and the comparison between a mall and a private home doesn't
make sense. In the case of the Valley Plaza Mall attack, I think the
real reason is those guards did what they could to prevent the mall
getting "bad press".

 

"Can go" and "can film" are two different things.

Absolutely correct. It's private property. If some idiot walked
into your home and started videotaping you, would you not want
the legal right to stop him or her, forceably if necessary?

If it does go to court, it'll be the easiest case the judge has
ever heard.

Mike

 

They cannot have imagined that they'd keep this out of the public eye --
could they?

I was once told by a security guard not to photograph a sign at a mall in
suburban Los Angeles. The sign merely identified the mall and the company
that owned it.

I still have no idea why they objected.

 

Absolutely correct. It's private property. If some idiot walked

The question is not just whether it was technically legal, but also whether
it was prudent and rational. What did they stand to gain by ejecting the
cameraman? Was it worth the damage to their image that will result from
having the public know they did this?

Lots of things are legal but stupid.

 

As bad as it all sounds, the fact remains that malls are private property
where the public is allowed access and activity...at the property owner's
discretion.

 

Hi..

Agreed. But the manner of eviction was completely inappropriate,
wasn't it?

I suspect that even if I visited your home, by invitation,
and somehow managed to make myself unwelcome, you'd "ask"
me to leave, then give me a little time to gather my
things and leave peacefully and quietly?

Ken

 

Being a formal photojournlist I can tell you that the security
officers are going to be in a whole heap of trouble, from possible
assult charges. Considering they didn't say they are with mall
security. From what I was told by my editor, any time the officals
show up, fire, police etc, they take control of the property until
they leave. So while photographing the police doing thier job, you
can't be charged with a trespass.

Another note, I don't think the mall is going to get good publicity
out of it.

 

Absolutely agree there.
The trouble is, the guy wasn't complying, so it gets annoyingly muddy.
He was certainly not posing a physical danger to anyone, so I can't imagine
why he needed to be wrestled to the ground. If they were trying to avoid
bad publicity, they certainly created worse than they already had. I think
key here is the understanding that security guard position do NOT attract
the most educated or even level-headed among us. I'm sure there are plenty
of good security guards, but I am continually amazed at some the the guys
who are walking around trying to make anyone feel secure. Many of them seem
like the same type of characters that you would cross the street to avoid...

Except that most security guard types spend a lot of time fantasizing about
"big things" happening at their otherwise hideously boring jobs. They LOVE
to imagine themselves tackling bad guys to the ground and etc.

 

I agree with you that their use of force was irrationally inappropriate, and
would support a case against them.

 

Your home is not a "public access" area.

 

I don't think that is entirely true. A private home is one thing,
a private business open to the public is something else. For
example, it is illegal to deny access to to a person because
you don't like the color of his skin, or because you don't like
that he is in a wheel chair. The fact that it is your store or your
restaurant or your shopping mall doesn't give you the right to
do anything you want.

I don't see how owning a property gives you the right to hire
goons to grab somebody else's property (his camera), or
to wrestle him to the ground and put handcuffs on him - even
if he is in your mall.

If a man walks onto your lawn and you don't like it, you can
call the police and accuse him of trespassing. I'm not at all
sure however that you have the right to go down and punch
him in the nose.

Maybe there is a lawyer in our group who can tell us the
legalities of the case.

Alan

 

I agree that they handled it in a way that will likely (and rightly) get
them in trouble.
I'm only talking about the fact that they can indeed make rules about taking
photos...etc. -Just as gambling casinos can restrict your "right" to use a
cell-phone at gambling tables, or restrict your ability to use a camera on
their grounds.

I think it's clear that these security guys were total and complete fools,
and probably deserve to be fired.

No, you can't simply walk up and punch him in the nose, as it would be
difficult that this was essential in removing him. But you could forcebly
remove him if he resists.

Personally I hope the security guards are fired, and that the mall has to
pay for damage. But...they are still free to restrict a great variety of
activities on their property.

 

Being that Kalifornia's appellate courts already decided in the PruneYard
case that people have a right to leaflet etc. in malls in that state, the mall
in this case is in deep legal shit.
Just the opinion of a North Carolina lawyer who practiced through the 1990s.
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Mark M responds:

Not in the parking lot, not after a public incident (bank robbery), not by
wrestling to the ground with no provocation, not without identifying himself
(the guard). What they've got here is a rent-a-cop who went over the line, way,
way over the line. I would be astonished if the news photographer doesn't file
suit, first for a civil rights violation and second as a result of assault and
battery.

Charlie Self
"When we are planning for posterity, we ought to remember that virtue is not
hereditary." Thomas Paine

 

It's still private property.

Irrelevant. The fact that a crime is committed on private
property doesn't magically change it into public property.

The photographer was asked to stop taking taking pictures
and to leave, and refused to do so. That is provocation.

That is likely up to state or local laws, whether security
personnel are required to identify themselves.

Hopefully he will file charges so you can see how the law
works in this country. Again, just pretend it was someone
coming onto your property and taking pictures without your
permission, and the mall's actions become utterly defensible.

Mike

 

Even police officers are required to identify themselves
before taking ANY physical action (except to protect life
\property in IMMEDIATE danger).

Many cases have been thrown out of court, and officers have
lost jobs, even gone to prison for taking physical action
before identifying themselves.

Hollering "Take me to the police" is a good protection in
such cases. Unless they have absolute proof you have
committed a crime, they have no legal right to handcuff you
or drag you away. (illegal restraint)

Only two classes of people may do these things legally:

Police Officers
Bounty Hunters

At no time do ANY un-deputized security officers have any
right to handcuff, restrain, or otherwise imprison any
citizen who was NOT caught committing a crime, and if he
WAS commiting a crime it had BETTER be backed up with
surveilance tapes. The now famous "Wynona Ryder case" would
have been a looser except for the tapes of her stealing
garments ect.

I know it happens all the time, and I know people put up
with it, but that doesn't make it legal.

I only know these things because I've been there, done
that.

When I was accosted by security people for taking pictures
at the local Mall (Crystal Mall, Waterford, Connecticut) I
INSISTED that they immediately call the police if they
thought I was "breaking the law".

They called my bluff, and told me if I wanted the cops
involved it was MY CHOICE.

So I called the local police on a non emergency line and
asked for an officer at a particular entrance to the mall.

Upon the arrival of an officer, after a few quick questions
they were chagrined. They had no signs posted forbiding
photography, and no written rule saying it wasnt permitted.

To my knowledge there is STILL (a year later) no signs or
written rules forbidding photography, and I still take
pictures there when Im in the mood. (usually while my wife
shops).

 

(snip)

----------

Charlie, there is a certain mis-choice of words here throughout the
discussion referring only to the fact that the mall is "private property"
and trying to compare it to a "private home."

The trend in several court cases of similar nature has been for the courts
to examine the extent of public access and then decide on two things: Is the
place, factually, a "public place" or a "private place"? Irrespective of the
nature of the place does the fact that the public are freely admitted, or
not, make the place a "public forum" or a "private forum?"...

Thus you CAN have a private place such as a mall (private place) or
government owned sports stadium (a public place) host a "public forum" or a
"private forum" at different times.

On the basis or this legal theory, at least one state, PA, has established
that publicly accessible parts of commercial (privately owned) shopping
malls are a "public forum" for purposes of press and photographic access to
the same extent that the general public has access. In that case the judge
declared that such as malls have replaced the old "village green" and thus a
place where the public could assemble freely and for ANY peaceful purpose,
the press having the same right.

On the other hand you can have a "public place" such as a publicly owned
sports stadium that is temporarily leased to a sports club [or for a music
show, circus, ect] that is then allowed TEMPORARILY to charge for access and
otherwise restrict access to the public - making their activity, in effect,
a "private forum" for access purposes.

In the instant case, and even more curious, if the news photographer was
filming the police going about the post robbery investigation (at least the
activity in the arguably publicly accessible parking lot) then why didn't
the mall security simply ask the police to stop him? I know what the answer
would have been - they couldn't and wouldn't - but I am strongly curious as
to whether they did ask and were told by the police to F-off, but then
decided to act on their own.

In addition to the issue of assault with actual bodily injury (criminal
charge); and civil rights violations (state and/or federal criminal charge);
and possibly criminal damage to the photographer's camera; and as they tried
to seize it by force from the photographer's possession possibly attempted
theft...(criminal charge); there is also the issue of handcuffing him and
detaining him creating the possibility of "false arrest" charges (criminal
charge); and as he was actually taken from the place he was handcuffed and
restrained (in the parking lot) thence into the mall to be held against his
will... KIDNAPPING ("big time" criminal charge).

Methinks those mall security guys and their employer, indeed the mall
itself, are in deep, DEEP, s**t! This could cost them, and I mean it
literally, MILLIONS in damages.

Journalist

 

I am in COMPLETE agreement here (see my earlier post)

 

Mike,
There is also the freedom of the press. Same incident happened at our
workplace (school) where a fellow employee went down on the job and it
happened that a news crew was there and began taking pictures (stills for
newspaper). Our boss got charged later and in deep doo-doo by restricting
the news team (actually the school's newspaper student reporters and
photographer) from taking photos. As long as they were not interfering with
a police officer in the line of duty, there isn't much you can do. They can
stand 50 feet away and film all they want and there isn't squat you can do
about it, even if it is the school's own news team.

Aside, we even had one where a local newspaper photographer tried to tell
the officers attempting an arrest of a supposedly drunk individual that the
person in question wasn't drunk, he was mentally impaired form birth. They
arrested him for interfering and later had to issue a public apology.

Yep. Mall security is in deep poo.

B~

 

I would suggest that the correct thing to do was to call the police
and let them handle the situation.