Mall Photos - my turn...

<p>Stephen, you made the statement as if Australian law governed everywhere, which it does not. It would not surprise me if California's lack of a law criminalizing trespass on private property open to the public is very much the exception rather than the rule; I currently have no plans for a 50-state shopping-mall photography trip, so I don't plan to investigate how other states handle it. I simply took issue with the blanket statement that all private property is the same as a person's home and that owner can have a person removed at any time for any reason. That statement just isn't always true.</p>

<p>If you read the Court's opinion in <em>Cox</em> , you'll see that much of the logic for California's Unruh Civil Rights Act derives from the English common law, so we may have more of a common legal heritage than you think, though there's obviously been some divergence. For example, I assume that a person eating a meal in a restaurant in Australia cannot suddenly be told to leave for no reason. I don't suggest that eating a meal is in any way comparable to taking pictures, but merely that when a right is not absolute, it's not absolute. The question then is how non-absolute the right to exclude is, and the answer depends on the applicable law at a particular location. My principle is simple: if I'm not absolutely certain of the law, I usually don't argue unless what's alleged is preposterous. I've only been hassled a handful of times, so it's usually not an issue.</p>

<p>It seems to me that we have made an endless discussion out of something that's really very simple. If you're on private property open to the public (whether you're photographing or not) in a place that criminalizes trespass on such property, the owner can tell you to leave and have you arrested if you refuse to do so; absent a criminal trespass law, they cannot, though some other remedies may be available. When there is no legal right to exclude, a photographer can still decide to abide by the property owner's rules out of courtesy or because he just doesn't want the hassle. But it's the photographer's choice, and I make no suggestion as to what's right and what's wrong.</p>

<p>We all seem to agree that at least in circumstances similar to those discussed, neither private security nor law enforcement can require a photographer to delete images (or surrender film). The OP took some criticism for complying with the guards' “orders,” and I think that criticism was unfounded. He may not have been fully aware of his legal rights (why would one need to learn when one is not expecting to get hassled?), or he may simply have wished to avoid a hassle. As with someone who refuses a request to leave private property when not legally required to do so, it was David's choice. It's a lot easier for armchair generals to comment on what one should have done than it is for a person confronted by a group of thugs to make a quick decision.</p>

<p>The issue of manner and attitude applies to security personnel as well as photographers. There is every indication that had the guards simply told David that mall policy forbade photography, he would have stopped photographing and there would have been no issue.</p>

<p>Stephe Asprey wrote:</p>

<blockquote>

<p>We don't need one because our legal system is geared to preserving individual freedom and protects us from political excess or abuse.</p>

</blockquote>

<p>Unless you live in a Northern Territory Aboriginal community, where strict measures are in place that ban the sale, consumption and possession of alcohol and grant the police powers to search vehicles suspected of being involved in alcohol running.</p>

<p>Hours spent looking up and writing about trespassing law when no one was accused of tresspassing to race based discrimination to Aboriginal alcohol running. And it all started at the shopping mall. </p>

<p>You probably didn't see that last one coming David.</p>

<blockquote>Hours spent looking up and writing about trespassing law when no one was accused of tresspassing</blockquote>

<p>John, what really strikes me as a waste of time is repeatedly bringing this up. If you read my posts, you'll find that I never said anyone was accused of trespassing in the OP. And I wasn't the one who sidetracked the discussion into this issue. You and several others repeatedly stated that the owner of private property has an absolute right to have others removed. That simply isn't correct as a blanket statement; my comments were a rebuttal of that statement rather than of anything in the OP. It well may be true where you live, but it's not true everywhere.</p>

<p>Be assured that I can write one liners as well as anyone. But I saw little point in an exchange such as “You're wrong.” “No, you're wrong.” repeated ad infinitum. My posts were longer because I supported them with more than my own opinion. It took zero hours research because I've known this stuff for years, as does anyone who takes a basic look at California propterty law; I only bothered to learn it because of a couple of situations in which an arrest for trespassing actually was threatened (circumstances weren't quite the same as those discussed here). As it turned out, those threats were baseless.</p>

<p>John - No, I certainly didn't see that turn coming up!</p>

<p>Jeff - Just for the record. This incident occurred in MN and while fascinating, CA property law has little or nothing to do or in common with MN property law. I spent 5 minutes researching and found the following : </p>

<p>"A person shall be guilty of Misdemeanor Trespass if they are on a property or in a building on a property when having been asked to leave by the owner or assignees, they refuse to do so. " </p>

<p>Pretty cut and dried. If I had refused the guards request / order to leave, I could have been arrested (held by them, until real cops arrive) and charged with Misdemeanor Trespass under MN statutes.</p>

<p>Dave</p>

<p> </p>

<p>With no offense intended, I wish folks would read what I actually said. Dave, you and I have no disagreement whatsoever.</p>

<blockquote>CA property law has little or nothing to do or in common with MN property law ... If I had refused the guards request / order to leave, I could have been arrested ...</blockquote>

<p>I said precisely this in my post of April 09 at 3:37.</p>

<p>I wasn't the first to mention California law; my comment (on April 6 at 6:26) was to clarify a statement that California criminalized trespass on all private property, which it does not. I never implied that California law applied outside California; I didn't include a disclaimer in every paragraph because I considered this self evident.</p>

<p>Let me say this yet again: what matters, on this or any other issue, is the applicable law wherever you may be located. If you want to know the conduct required, you need to look to the law, as Barry and I did for California and Dave did for Minnesota.</p>

<p><em>I said precisely this... I wasn't the first to mention... Let me say this yet again...</em></p>

<p>OK, OK, there's a few quirky exceptions here and there to the general principles involving property owner rights to tresspassing. We got it. You win.</p>

<p>There's no need to drone on about how you are correcting everyone. No one was accused of trespassing anyway. It was just something mentioned in passing. It doesn't matter who mentioned California first. Who cares? The topic raised was about over-zealous attitudes of security guards towards photographers which occurs no matter what the local trespassing law is. Discuss that.</p>

<p>John, I'll say no more on the subject if others will quit bringing it up. Droning on? It takes two to tango; you've mentioned that no one was accused of trespassing at least three times: why? I agreed with you the first time. Here and there? California may be quirky (in many more ways than trespass laws), but it is 12% of the U.S. population. And has almost twice as many people as Australia. So there ...</p>

<p>I think we've discussed overzealous security guards and are essentially all in agreement. At least on this forum; some others (see the thread on BART at <a href="../street-documentary-photography-forum/00SzkJ">http://www.photo.net/street-documentary-photography-forum/00SzkJ</a> , my post of April 16 at 11:08) apparently think they have the right to confiscate cameras without probable cause that the cameras contain evidence of a crime or incident to custodial arrest. Perhaps that's a topic that might merit further discussion.</p>

<p>Ok - I got an answer from the General Manager of the Mall.</p>

<p>He indicated that the policy is as the guards stated - No Photography. Period. No P/S, No DSLR, No iPhone... If they see you doing it they will ask you to stop. The reason he gave is due to contracts with the tenants - they don't want the competition taking photos of their store fronts or locations. Which I can understand...much easier to ban all then just commercial and try to police it.</p>

<p>He did profusely apologize for the overzealous guards telling me to leave, telling me not to come back that day, and demanding that I erase the photos. He stated that they (guards) had overstepped on those three things and that he would be having a talk with them the next day. </p>

<p>Lesson learned (or in this case re-inforced) on my part...</p>

<p>Dave</p>