Photojournalist Jeffrey Sauger's Conviction Overturned; Federal Civil Rights Lawsuit Filed
By Donald R. Winslow
© 2008 News Photographer magazine
TOLEDO, OH (November 11, 2008) – In September 2007, a Toledo jury found photojournalist Jeffrey Sauger guilty of criminal trespass, a crime that he had been charged with two years earlier in December 2005 when he was arrested while covering a neo-Nazi rally in the city.
Yesterday Sauger learned from his attorney, Julie Hurwitz, that the Ohio Court of Appeals has overturned his conviction based on the fact that he was denied a speedy trial, a right a defendant is guaranteed by law.
Now that Sauger's criminal conviction has been overturned, the photojournalist and Hurwitz can focus on a Federal Civil Rights lawsuit they have filed against the City of Toledo and the police department, claiming that Sauger was denied several of his Constitutional rights.
"I should never have been arrested in the first place," Sauger told News Photographer magazine today.
"As a professional news photographer, I had every right to be where I was on a public street attempting to document the actions of the neo-Nazis, the counter protesters, and the police during this rally," Sauger said. "Not only were my Constitutional rights violated, but in this day of shrinking municipal budgets I think the taxpayers of Toledo could have been better served by them going after a real criminal instead of whatever it cost them over three years to prosecute me and to fight my appeal."
Sauger has been an NPPA member since 1990.
When Sauger was detained by Toledo police, two other photojournalists were also arrested. Jim West was found not guilty of a failure to disperse charge during the same trial with Sauger, and Jeffrey Willis of the Toledo Journal had disorderly conduct charges against him dismissed in 2006.
Sauger says he's very happy with the appeal court's finding, but that he doesn't know whether it's really over with or not. "Toledo can still appeal the decision [to Ohio's Supreme Court]," he said. "But I can't believe it took three years to get to this point. I realize I wasn't beaten or tortured or anything ... but if people don't fight for even the smaller, non-violent affronts to their rights, history tells us that they lose those rights. So on one hand, what happened to me may not be such a big deal, but on the other, how important is the Constitution?"
At one point when Sauger and West were headed for trial there was an offer to drop the charges if the two photographers would sign a waiver releasing the City of Toledo from any responsibility, but Sauger said the offer was quickly withdrawn when the prosecutor on the case changed to a different attorney.
Sauger's lawyer says there were several issues simultaneously at work in his criminal trespass case, but that "the first and foremost element was that everyone who is forced to go to trial has a right, by law, to a speedy trial."
"Ohio like most states has a law that requires a criminal defendant to have a speedy trial, and in Ohio anyone who is arrested on a low-level misdemeanor has a right to a trial within 45 days of being arraigned," Hurwitz said. "There are all kinds of exceptions to that, including if the criminal defendant waives his right to a speedy trial."
Hurwitz said that Ohio courts have a system in place where once a criminal defendant has been arraigned that they are asked to sign a form, whether they have an attorney representing them yet or not, and whether they fully understand the form or not. The form is a waiver of consent waiving a defendant's right to a speedy trial. Hurwitz said that Sauger did not know that he was waiving his right to a speedy trial when he signed the form after his arraignment, and he didn't go to trial for two years after his arrest.
In 2006, a year before Sauger's criminal trial, Hurwitz challenged the waiver form in court and claimed that the photojournalist's right to a speedy trial had been violated by the court's procedures.
"The judge got so furious at me for having the gall to challenge Toledo's court system that she basically blew a gasket and ended up having to recuse herself from the case," Hurwitz said.
But the lawyer pursued the claim until they went to trial, she says, even though they were "consistently denied."
"It was the Ohio Court of Appeals that eventually ruled that it was wrong, and that he had been denied his right to a speedy trial," Hurwitz said today.
Sauger will not have a criminal record for his arrest and criminal trespassing conviction; the appeals court has vacated the conviction, Hurwitz told News Photographer magazine today. "It's as if he was never arrested," she said.
The Federal Civil Rights claim that Hurwitz has filed on Sauger's behalf names the City of Toledo, the Toledo Police Department, and all of the agencies involved in his arrest for denying Sauger his Fourth Amendment rights by falsely arresting him, and denying him his First Amendment rights (claiming that he was arrested when he was photographing horse-mounted police officers riding into the midst of peaceful protesters).
Hurwitz also said that because of the particular rights that the U.S. Supreme Court has recognized for journalists that in some instances expands their First Amendment freedoms in certain circumstances, their civil rights suit also claims that under a federal statute called the Privacy Protection Act, which prohibits any government actor from removing the tools that a journalist uses to disseminate information to the public without just cause, Sauger was denied his rights when he was arrested and removed from covering the neo-Nazi protest and his equipment was unlawfully confiscated.
The Federal Civil Rights case was filed in Federal District Court in the Northern District of Ohio in December 2007, even though it had not yet been determined that Sauger had been falsely arrested and convicted. "Because of a U.S. Supreme Court ruling that says you have to file a civil rights claim of being falsely arrested within two years of the arrest date, we had to go ahead and file it even though Sauger's criminal case was still moving forward," Hurwitz explained.
"So the federal court goes ahead and accepts the case and it sits in limbo for however long it takes to resolve the criminal charges, then if the criminal conviction is overturned the federal court can then revive the civil rights case. But it's still in limbo because we have to wait out the time period to see if the City of Toledo will appeal the criminal conviction being overturned to the Ohio Supreme Court."
Hurwitz has not attached a dollar figure to the Federal suit. "I don't do that," she said today. "I leave it up the the jury to decide that. There are several ways they can calculate the damages, including lost work, the cost of his criminal defense and appeal, and any punitive damages that he would be entitled to from the individual police officers if the evidence were to support a claim like that."
“It is gratifying to read that Jeffrey’s three-year ordeal is over, unless of course the City of Toledo is foolish enough to appeal this decision," NPPA's general legal counsel Mickey H. Osterreicher said today from Buffalo, NY.
“Because the court found that his right to a speedy trial had been violated it made the other grounds for appeal moot. While it would have been nice to have his conviction overturned on First Amendment grounds it is a victory none-the-less.
"I congratulate Jeffrey and his attorney for pursuing this matter despite the time and cost. It is important that law enforcement, prosecutors and judges realize that the constitutional rights of photojournalists are not to be trampled upon. It will now be interesting to see how his federal civil rights action is resolved in light of this decision.”
"We need to see more cases where journalists fight back," NPPA Advocacy Committee chair Alicia Wagner Calzada said today from San Antonio, TX.
"I applaud Sauger for being willing to stick through this ordeal to get his conviction overturned. Journalists everywhere should be pleased, but should realize that the First Amendment grounds were never addressed here. Even in recent days, we see how the incidents of journalists, especially photographers, being harassed and detained by police is far too common. It is an outrage, and puts a definite chill on photographers' newsgathering. The charges are usually dropped, but the remaining impact on photojournalists who limit their newsgathering for fear of being arrested is great."
Sauger's attorney is a member of the firm Goodman & Hurwitz in Detroit, and she specializes in Civil Rights and First Amendment cases. She has been selected as a Michigan Super Lawyer three years in a row, since 2006.
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