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Student photographer not charged with obstructing officer

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    NMU         CALIFORNIA         Newsgathering         Sep 23, 2002    

Student photographer not charged with obstructing officer

  • The district attorney found no evidence of intentional obstruction by a student journalist who was arrested while photographing another arrest on Labor Day weekend.

The student photographer arrested for obstructing an officer on Labor Day Weekend in Chico, Calif. was freed of possible charges Sept. 17 as no evidence of intentional obstruction could be found.

California State University, Chico student Misha Osinovskiy called the results a “relieving” end to two-and-a-half “nerve-wracking” weeks. If convicted, Osinovskiy could have faced up to one year in prison and a hefty fine.

Alcoholic Beverage Control Officer Jerry Berenger arrested Osinovskiy after warning him to stop taking photos of an ongoing citation and claimed, according to the ABC report, that a gathering crowd repeatedly chanted: “Free Misha.” Osinovskiy and fellow reporter for the student newspaper The Orion denied that ever happened.

“Several people see the same event and recollect it differently,” said Osinovskiy’s attorney, Bob Marshall. “And that’s what happened.”

Both Marshall and Osinovskiy said that it became an issue of clearing discrepancies between reports: Berenger said Osinovskiy took up to six photos, the negatives reflect two. Osinovskiy said his camera was in manual mode and would not flash without taking a photo, but the officer said the numerous flashes blinded him and agitated his detainee.

While inspecting the photographer’s camera in The Orion newsroom with ABC Investigator Tony Koester and Osinovskiy Sept. 17, Marshall found the possible reason for their differing accounts; he realized that the camera could have been set half-way between manual and automatic, which could result in a photo being taken with repeated flashes for focusing.

This meant that had the camera been on an in-between setting, Osinovskiy could have taken few photos, not intentionally interfering with the ongoing citation, while Berenger could have been subject to more flashes than Osinovskiy realized.

California Penal Code section 148, the basis for Osinovskiy’s initial charge, states that it is illegal to willfully obstruct an officer.

“There was no way he intended to interfere with the officer,” Marshall said, and so the charges were dropped.

Marshall admits that the case was resolved before even tapping into First Amendment issues. Although Berenger said disclosure of his undercover status as an officer by a published photo was his main concern, Marshall upholds that it is not illegal for a journalist or the general public to photograph an undercover officer in a public place.

Osinovskiy, however, said that when dealing with plainclothes officers, “I might play it a little smarter next time.”

The ABC, Osinovskiy said, is conducting its own investigation into the matter and Marshall plans to ask for a factual finding of innocence to have the arrest removed from Osinovskiy’s record.

Osinovskiy said the arrest has not hindered his motivation as a photographer.

“Just the other night I was out shooting photos of police,” he said. “I’m not afraid.”

(Media counsel: Bob Marshall, Chico, Calif.) AU

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© 2002 The Reporters Committee for Freedom of the Press

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