Homeland Security settles with liberty activist, pays damages and concedes public's right to film
By Martin Hill
LibertyFight.com
October 19, 2010


The New York Times ran the story You Can Photograph That Federal Building yesterday, chronicling the lawsuit of a 29 year old Antonio Musumeci from New Jersey.

Musumeci, wearing a black RON PAUL R3VOLUTION T-shirt in the Times photo, sued the government after they arrested him for filming outside a federal court building.

Musumeci's personal account of his November 9, 2009 arrest can be found on blogofbile.com in an entry titled Arrested for filming the arrest of Julian Heicklen on federal property. Video footage has been posted on youtube and can be seen here, or below.Julian Heicklen's account of that day's events is here. Heicklen notes that he was passing out  pamphlets from the Fully Informed Jury Association  titled “A Primer for Prospective Jurors” along with his handout.  According to Musumeci, Heicklen had been arrested the previous three Mondays for refusing to stop handing out the literature, and he ws filming his arrest when he himself was arrested. An audio interview with Heicklen is here.

Musumeci, who told officers he did freelance work for Free Talk Live while recording, later sued the Department of Homeland Security for a violation of his rights.

The resulting court order settlement is very interesting. The Stipulation and Order of Dismissal  filed October 15th, lists "Antonio Musumeci Plantiff vs United States Department of Homeland Security et al, Defendants".

According to te document, Musumeci had filed his complaint on April 22, 2010, alleging that he was arrested by the Federal Protective Service (FPS) in November 2009. He was cited for violating 41 C.F.R. section 102-74.420, and that the arrest violated his rights under the U.S. Constitution.

The order goes on to state "the parties wish to resolve this action without further litigation", and several provisions are included in the four page document. I will summarize the interesting ones below:

The government admits that the statute does not prohibit picture taking: "Whereas, FPS contrues 41 C.F.R. section 102-74.420 not to prohibit individuals from photgraphing (including motion photography) the exterior of federal courthouses from publicly accessiible spaces..."

The government will issue training to their officers regarding this fact: "FPS will provide a written instruction to its officers and employees...stating that for federal courthouses...there are currently no general security regulations prohibiting photography by individuals from publicly accessible spaces..."

Stipulation #3 states that the government can still approach people filming and question them: "Nothing in this agreement precludes FPS or the United States, any department, agency, agent, officer or employee of the United States (collectively the 'Government') or any law enofrcment officer from taking any legally permissible law enforcement action including but not limited to approaching any individual taking photographs and asking for the voluntary provision of information such as the purpose of taking photographs or the identity of the individual..."

Of course, the obligatory denial of any wrongdoing is thrown in for good measure: "5. This agreement does not constitue an admission of liability or fault on the part of the Government". (Notice how they always capitalize the word Government?)

Number 6 & 7 outline the government's monetary payments to the defendant: "Plantiff will file an administrative tort claim...FPS agress to pay plantiff $1500 , which sum is in full settlement...." "...$3350 for attorney's fees and expenses or costs.."

Number 8 deals with the camera's memor card: "The memory card seized... will be released by the Department of Homeland Security within 10 days... and held in the custody of the United States Attorneys Office for the Southern District of New York  for use as possible evidence in an ongoing criminal matter..."

"..10. all payments described in this stipulation will be made by electronic funds transfer pursuant to written instructions that plantiff's counsel will provide to the government's counsel"

Attorney for the plantiff is the New York Civil Liberties Foundation, Christopher Dunn. Attorneys for the government are listed as Preet Bharara and Benjamin H. Torrance.

The statute Musumeci was alleged to have originally violated can be found here, and states

§ 102-74.420 What is the policy concerning photographs for news, advertising or commercial purposes?
Except where security regulations, rules, orders, or directives apply or a Federal court order or rule prohibits it, persons entering in or on Federal property may take photographs of—
(a) Space occupied by a tenant agency for non-commercial purposes only with the permission of the occupying agency concerned;
(b) Space occupied by a tenant agency for commercial purposes only with written permission of an authorized official of the occupying agency concerned; and
(c) Building entrances, lobbies, foyers, corridors, or auditoriums for news purposes.

Nearly a year after the original incident, Julian Heicklen is still rattling the system with his liberty activism; Antonio Musumeci has posted an update on the case and his settlement with the government.

Martin Hill is a Catholic paleoconservative and civil rights advocate. His work has been featured on LewRockwell.com, WhatReallyHappened, Infowars, PrisonPlanet, National Motorists Association, WorldNetDaily, The Orange County Register, KNBC4 Los Angeles, Los Angeles Catholic Lay Mission Newspaper, KFI 640, The Press Enterprise, Antiwar.com, IamtheWitness.com, FreedomsPhoenix, Rense, BlackBoxVoting, and many others. Archives can be found at LibertyFight.com