Re: [Leica] Home depot and the rest

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

My scenario would be more like this:

You are taking pictures in a shopping mall which forbids photography. In
most U.S. jurisdictions, the owner of a mall has the right to forbid
photography on the premises. The owner (or his agent) askes you to stop and
you refuse. The owner asks you to leave. You again refuse and continue your
picture taking. You are now committing a criminal trespass which is defined
in most jurisdictions as remaining on private property without the owner's
permission. (It is difficult, however, to speak in general terms or cite
specific statutes, because criminal trespass is usually the subject of local
ordinances, not state laws.) The owner has the right to reasonably detain
you while he calls the police. Although you have been refusing to leave, you
might take off running when you realize that he's really calling the police.
The point is that a shopkeeper has the right to reasonably detain someone
that he suspects of criminal activity. Once he asks you to leave because you
insist on a continuing course of conduct that he may legally forbid, and you
refuse to leave or cease the conduct, you are committing a criminal act the
same as if you were shoplifting or violating a restraining order.

As I posted the other day, with the exception of California (the only
exception of which I'm aware), the U.S. Supreme Court has ruled that
individuals do not have the right to exercise free speech rights in a
privately owned shopping mall. If you want to review this, see "Pruneyard
Shopping Center v. Robins" (1980) 447 U.S. 74. U.S. courts have held in
numerous cases that the taking of a photograph is an act of expression akin
to speech and raises First Amendment issues.

For those who are interested (and I apologize to those who aren't - but you
have delete keys), "Pruneyard" was the last of four relevant cases. First,
in Amalgamated Food Employees v. Logan Valley Plaza (1968) 391 U.S. 308
("Logan"), the Supremes ruled that a state trespass law could NOT be used to
enjoin picketing at a privately owned shopping center. Then, in Lloyd Corp.
v. Tanner (1972) 407 U.S. 551 ("Lloyd"), they held that First Amendment
activity could be curtailed at a privately owned shopping center when it had
no relation to the purpose for which the center was being used. Four years
later, in Hudgens v. NLRB (1976) 424 U.S. 507 ("Hudgens"), they abandoned
the purpose distinction in "Lloyd" and ruled that "Lloyd" had, in fact,
overruled "Logan." The rule announced in "Hudgens" was that individuals do
not have First Amendment rights to free expression in private shopping
centers. The "Pruneyard" case upheld a decision by the California Supreme
Court which found that such a right existed under the California State
Constitution. Remember that a state has the power to convey a more expansive
right than the federal constitution does, but may not do the reverse and
limit a federal constitutional right.

The above is a fairly simplistic summary, but, in the interests of the
international nature of this list, I would be happy to discuss this in much
greater detail off-list.  Anyone who's interested can feel free to email me.

Bryan




- ----- Original Message -----
From: "Austin Franklin" <darkroom@ix.netcom.com>
To: <leica-users@mejac.palo-alto.ca.us>
Sent: Thursday, June 21, 2001 4:41 PM
Subject: RE: [Leica] Home depot and the rest


> > 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. It
> > usually comes into play in shoplifting cases, but applies in
> > other instances
> > of criminal activity.
>
> Yes, but shoplifting is illegal.  Asking someone to leave when they are
not
> doing anything illegal (taking pictures), and then detaining them claiming
> trespassing, is entirely different.  It's almost absurdly different.
Think
> about it...they ask you to leave, you won't (because you want to finish
> shopping), so they detain you?
>
> I am very very skeptical that your point (at least as I read it) is even
> remotely correct.  If you do have relevant statutes or cases to cite, I
> certainly would appreciated them.
>