A New York State statute designed to protect crime victims and witnesses was misused to arrest a protestor at a military base, according to an amicus brief drafted and filed by Lee Levine and Mara J. Gassman of Levine Sullivan Koch & Schulz, LLP on behalf of the National Press Photographers Association and other media groups.
In the brief, New York’s Order of Protection statute, also known as a “stay away” order, was applied beyond its intended use when the commander of a military base was granted such an “order of protection” against peace activists protesting a military drone program.
The brief adds that courts should make it clear that statutes should not be lawfully invoked either to shield public officials from criticism or curtail First Amendment rights of the press and the public to take photographs of public protests.
Mary Anne Grady Flores was issued the order after a protest at Hancock Field Air National Guard in Syracuse, New York in 2012. The base is home to MQ-9 Reaper unmanned combat aircraft operations and Grady Flores was part of a group of fewer than 20 demonstrators arrested for blocking the entrance to the base.
Col. Earl Evans, mission support group commander, asked a court for the stay away order to protect the military base from the unarmed peace activists, including Flores, a grandmother and a lifelong activist. She was ordered to stay off base property for a year.
The statute was intended to protect the victims of crimes from their attackers, especially in domestic abuse cases. The brief argues this application at Hancock Field violates First Amendment rights.
“Journalists and professional photographers, as well as ordinary people, regularly serve as surrogates for their fellow citizens by observing, chronicling and disseminating words and images describing both an increasing number of significant public protests across the nation, and the conduct of law enforcement officials in response to them,” the brief states.
Less than six months after the protest where she was charged with violating the stay away order, Grady Flores went with a group for a second protest at Hancock Field. She was there to take photographs and was standing on public roadways which she believed to be off the base property. The actual property line was not identified by signage at the time. Prosecutors said that by crossing a street Grady Flores, stepped onto the base property in violation of the order. Grady Flores has said she believed that she was always on public property during the protest.
Grady Flores was convicted of second-degree criminal contempt and sentenced to one year in jail but has been out on bail pending appeals.
The NPPA joined with the Reporters Committee for Freedom of the Press, the New York Press Association and the New York News Publishers Association in the brief. It was filed in the Court of Appeals of the State of New York (the state’s highest court) where the case will be heard.
“We believe this is a very important case for both journalists and citizens who wish to document matters of public concern from places where they have a legal right to be present,” said NPPA general counsel, Mickey H. Osterreicher, who also helped in the drafting of the brief. “We also greatly appreciate the pro bono work of the lawyers in their efforts to enlighten the court regarding the ‘chilling effect’ such misuse of the legal system has on First Amendment rights,” he concluded.