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Federal appeals court says cameraman's arrest was justified

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    News Media Update         ELEVENTH CIRCUIT         Newsgathering    

Federal appeals court says cameraman’s arrest was justified

  • A freelance cameraman is appealing a federal panel’s split decision that a Miami police officer is entitled to qualified immunity from a civil rights suit stemming from the armed seizure of Elian Gonzalez.

Dec. 19, 2003 — A split three-judge panel of the U.S. Court of Appeals in Atlanta (11th Cir.) said a Miami police officer did nothing wrong when she arrested a freelance cameraman who was videotaping the arrest of a fellow journalist.

The court held in late November that Officer Jennifer Pastor was “acting within her discretionary authority” in arresting cameraman Albert Durruthy on April 22, 2000, and therefore entitled to qualified immunity from the civil rights lawsuit he filed against her. Pastor also had probable cause to arrest Durruthy, the court said, because of a state statute that prohibits people from walking in the street when a sidewalk is available.

Durruthy’s attorney, Marc Wites, filed Wednesday for a rehearing of the case. Wites declined further comment.

Durruthy was one of many members of the media covering the aftermath of the U.S. government’s armed seizure of Elian Gonzalez, then 8, who had defected from Cuba months earlier. Against the wishes of the boy’s uncles and aunts in Miami, the U.S. government later returned Gonzalez to his father in Cuba.

Protests had broken out in response to the armed seizure, and police cleared the streets around the house the boy had been staying at. When Durruthy saw NBC cameraman Bruce Bernstein getting arrested, he ran into the street to videotape it. According to court records, the police ordered Durruthy to get out of the street.

Durruthy began to backpedal toward the sidewalk — all the while still videotaping — but was soon thrown to the ground from behind by Pastor. He was arrested and charged with resisting, obstructing or opposing an officer. The entire episode was captured on videotape by various members of the media.

The Miami Police Department’s internal guidelines clearly prohibit the “warrant-less arrest of media personnel for non-felonious acts arising out of the pursuit of the newsgathering function.”

The state attorney later dropped all charges, and asked Durruthy to sign a release of liability against the Miami Police Department. He refused, and instead filed complaints against Pastor and the police department for unlawful arrest and excessive force.

The U.S. District Court in Miami denied Pastor’s motion to dismiss the case, saying her conduct was “obviously illegal, based on the complete lack of any reasonable basis for the arrest.”

The U.S. Court of Appeals reversed that decision Nov. 26.

In his dissent, Judge Norman Stahl said the arrest was unreasonable because there “was no vehicular traffic in the roadway” and Durruthy was “an obvious member of the media acting within the scope of his journalistic duties.”

Stahl was hearing the case as a visiting judge from the federal appeals court in Boston (1st Cir.). Semi-retired judges often travel the country to help courts move their caseload.

“It is patently obvious to any observer of the videotape evidence,” Stahl said, “that the sole reason for Pastor’s conduct was that she and the other officers wanted Durruthy to stop filming the arrest of the NBC cameraman.”

(Durruthy v. Pastor; Media counsel: Marc A. Wites, Deerfield Beach, Fla.) JL

© 2003 The Reporters Committee for Freedom of the Press

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