Re: [Leica] Home depot and the rest

["Bryan Caldwell" <bcaldwell@softcom.net>]

Austin,

>>Store/mall policy does not have anything to do with the law, period.  They
have no right to take your film, much less your camera, though they can ask
you to leave.  If you refuse, they can not physically touch you, they must
call the Police to have you removed, unless you are causing or I believe
threatening to cause someone else (possibly some thing too) physical harm.<<

This is not entirely true. First, a store/mall policy must comport with the
law or the owner is subject to an injunction allowing the prohibited
activity. Second, while an owner (or their employee/agent) does not have the
legal power to seize your property, they do, in most U.S. jurisdictions,
have the right to detain you in order to investigate criminal activity. This
detention can be physical if it remains reasonable under the circumstances.
If you are asked to leave and you refuse, you are committing a criminal
trespass and you can be physically detained while the police are called. In
most places this is called the merchant/shopkeeper/librarian's privilege. It
usually comes into play in shoplifting cases, but applies in other instances
of criminal activity.

It may be helpful to view these store/mall cases from the First Amendment
perspective of the property owner. Most of the litigation in this area has
come in cases where the property owner objects to being forced to furnish a
forum for a position with which they disagree. For instance, allowing labor
picketers to enter an enclosed shopping mall (privately owned) in order to
picket at the door of a specific store. Or, allowing anti-fur demonstrators
access to the interior common area of a mall so that they can demonstrate in
front of a clothing store. Taking a photograph is an act of expression and,
in the U.S., has First Amendment implications. But the First Amendment
applies to government action - not private action. And, First Amendment
protection is not absolute. The government may impose reasonable time, place
and manner restrictions on First Amendment expression so long as it does so
in a content neutral manner. Private property owners are not (generally)
required under the federal constitution to allow First Amendment rights to
those who enter onto their property.

Bryan


- ----- Original Message -----
From: "Austin Franklin" <darkroom@ix.netcom.com>
To: <leica-users@mejac.palo-alto.ca.us>
Sent: Thursday, June 21, 2001 2:37 PM
Subject: RE: [Leica] Home depot and the rest