jeff_conrad

<p>Alex, I think you're attributing to malice what's simply less-than-stellar writing skills. I agree that the language includes some unnecessary bluster, but I don't think it means all that much. We really need to see that actual resolution, but as I've said, I'd guess it simply says that you need a permit if you're shooting commercially. What a BART cop can actually do in terms of approaching you, detaining you, or arresting you is preempted by federal and state law.</p>

<p>There's of course no way of predicting what an individual BART cop may actually do, and James's experience is disturbing. But as Brad suggests, if you get approached by a cop, you need to decide how to handle it. If you point out that you're photographing for your own use, and the cop insists that you can't take pictures and threatens to confiscate your camera, we indeed have a problem. Again, though, I wonder if anyone has actually been detained or had a camera confiscated. Perhaps Brad's been lucky, but it's also possible that some of the bark is worse than the bite.</p>

<p>Be assured that I'll be the first to howl if there really is a problem. But I've found that reports of the sky falling are generally more common than actual occurrences.</p>

<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>

<blockquote>The fact is a Mall is private property...no different to your house. The owner can prevent you from doing anything or being there if desired.</blockquote>

<p>I hate to belabor a point, but this simply isn't always true. I can speak only for California; what's true in other jurisdictions depends on the applicable laws. A quick glance at Minnesota law suggests that it is quite different California's, making no distinction among types of private property. It's hard to believe the right to arbitrarily exclude is quite as absolute as the statutes imply, but I have no idea how the courts have interpreted them, and because I don't live there, reviewing jurisprudence isn't high on my list of things to do. It does appear that David did the right thing in leaving when requested.</p>

<p>Much of the rest of Stephen's comments aren't true for California, either. For example,</p>

<ol>

<li>Police need not witness a trespass (or any other public offense) for a conviction, but an arrest for other than a felony must be made by somewhat who did witness the offense.</li>

<li>A private person (such as mall security) can arrest for an offense committed in his presence, but an offense must have actually have been committed; i.e., unlike a peace officer, they cannot arrest on probable cause, and they cannot detain on reasonable suspicion. Moreover, in most cases, private persons have no immunity from suit, an arrest by a private person puts that person at greater risk than would a similar arrest by a peace officer. The Ukiah Wal-Mart store manager in <em>Hamburg</em> learned this the hard way. A private person can use necessary force to make an arrest, but cannot manhandle the arrestee. The primary role of security guards is to observe and report rather than to make forcible arrests, but they can make an arrest by enlisting the aid of a peace officer, as was done by the Wal-Mart store manager.</li>

<li>Police generally need a warrant to enter a private residence, but there are some exceptions for exigent circumstances that involve potential injury (e.g., domestic violence) or destruction of evidence (e.g., DUI, though right of entry hasn't been established for all circumstances). I know a couple of people who discovered this much to their dismay.</li>

</ol>

<p>I can't comment on the right to have a trespasser forcibly removed; I've been trying to get a definitive answer to this for 10 years, but gave up after talking with five different lawyers. If someone has a good answer, I'd love to learn it. All I can observe is that it doesn't seem to be used very often. As I've mentioned, the Ukiah police didn't seem to see it as an option, and they bent over backwards trying to assist Wal-Mart, even sending the police chief out to the site.</p>

<p>I agree that the human rights issues brought into this discussion are largely irrelevant. The bottom line is that what governs is the law applicable where an incident takes place rather than some universal preconceived notion. But unless I were absolutely certain that there was no state or local criminal trespass law, I'd probably assume that there was and act accordingly.</p>

<p>Without seeing the actual resolution requiring permits for commercial photography, I'm not convinced that the resolution is the problem. Quite honestly, I'd be very surprised if it says anything more than that a permit is required. The policy stated on the web page definitely overreaches and intrudes into areas preempted by state and federal law, but I'd be surprised if the BART board would be so reckless as to pass a resolution that similarly overreached. But it's impossible to call without seeing the actual text of the law. More troubling to me is that BART resolutions, some of which date to the 1950s, aren't even codified, so it's almost impossible to find out what the law really is.</p>

<p>Outrageous interpretations of agency rules aren't all that unusual; California State Parks require a permit for any photography for “profit and sale,” but some personnel interpret this as applying to images posted on a web site and occasionally hassle people over it. Let's face it—there is simply no way the rule can be read to apply to all web usage. But the problem is the creative interpretation rather than the rule (the rule itself also has some serious problems, but that's another topic for another forum).</p>

<p>A far more interesting battle would be a facial challenge for vagueness of any law that requires a permit for photography based solely on commercial intent; it's not so much that the required behavior isn't clear (especially when the law defines commercial) but that it's almost impossible to provide any guidance for enforcement (how does a cop read the photographer's mind?).</p>

<p>As John points out, it's usually a small number of bad apples that cause most of the problems. It's certainly the case in the SFPD; I don't know enough about the BART police to comment, though the response of the leadership to the shooting of Oscar Grant was disheartening, and many of the BART police were as disturbed as anyone else. In any event, challenging the resolution wouldn't do much to stop cowboy cops.</p>

<p>Again, I'd like to see if anyone has actually been arrested (or even detained) by BART police for photography (assuming, of course, that it didn't involve activity that would require a permit). If there's been even one case, I'd say we have a problem. If it's occasional, I'd say we have a serious problem.</p>

<p>As always in these discussions, the problem seems less serious when it's happening to someone else. If I were detained, I assure you my attitude would change fast.</p>

<p>James's recent experience is disturbing, but I wouldn't get too worked up over the web page stating the BART photo policy. There simply is no way a BART resolution, whatever its actual wording, can get around the requirements of <em>Terry</em> (though this isn't to say that BART police wouldn't try).</p>

<p>I tend to ignore overly hyped policy statements and signs that are without legal basis; the Union Square garage once had a sign stating that photography strictly prohibited, and that anyone seen photographing should be immediately reported to security (I resisted the urge to make a big production out of slowly setting up a big tripod to photograph the sign). The signs were gone the last time I was there several months ago.</p>

<p>If a BART cop were to tell me that I couldn't take a photograph, the first thing I'd mention would be the stated policy (ignoring the blustery language) and ask why what I was doing was in violation. But I agree that at some point it may make more sense to fold 'em. In theory, the First Amendment protects considerable abuse directed at police, and at least in the Ninth Circuit, giving a cop the finger is protected speech. In practice, mouthing off to police (and especially giving them the finger) probably isn't a great idea, but I don't see how politely but firmly asking the reason why you can't take a picture would get you in trouble. But as always, sanity should prevail; I'd pack up, move on to another location, and call BART to ask what the hell was going on rather than push it to the point of getting arrested.</p>

<p>I'd be interested in knowing if anyone has ever actually been arrested by BART police for refusing to stop photographing.</p>

<p>John, there is no statute (the permit requirement comes from a resolution of the BART board of directors). And I'd guess the author of the language on the web page has taken considerable liberties with the language of the resolution. Unless enforcement is a lot more aggressive than I suspect (I don't take BART that often and haven't ridden it in at least six months, so I'm probably not the best judge), I'm not sure the situation is quite as dire as you see it.</p>

<p>I'm also not sure that discussing the policy with a cop is quite as dangerous as James suggests. But then again, three months ago I'd have insisted that a cop would never shoot an unarmed man lying on the ground in the back in the presence of dozens of witnesses. Hopefully, the Oscar Grant shooting was an aberration.</p>

<p>Incidentally, the BART <a href="http://www.bart.gov/guide/safety/index.aspx">Safety & Security Guide</a> asks passengers to report suspicious photographers.</p>

<p>Jerry raised another valid point that may have gotten lost in the discrimination digression: whether indeed there was a photography policy and exactly what that policy was. I would see such a policy encompassing at least the following issues:</p>

<ol>

<li>Whether the mall prohibits photography.</li>

<li>Whether different rules apply to different types of equipment.</li>

<li>Whether those unaware of the policy are to be informed of it or simply to be ordered to leave the property.</li>

<li>Whether those who have taken pictures are to be ordered to delete them (and what is to be done with those using film?).</li>

</ol>

<p>I raise this question because many times the story I've gotten from security personnel has been quite different from what I got from the people in charge (David—did you ever speak with the the real boss?). Even if a policy exists and includes most of the items, I'd be surprised if it included the last.</p>

<p>As the owner's agents, security personnel can enforce but not make the owner's policy, much as police can enforce but not make the law (at least in theory). This has been a touchy issue in some instances in which security have detained suspected shoplifters; when security have deviated significantly from the owner's policies, plaintiffs have won significant awards for false imprisonment or similar torts. I don't suggest that legal action is an issue here, but simply that the owner's agent is required to comply with the owner's policy, largely without improvisation, and and puts himself and his employer on thin ice when he fails to do so.</p>

<p>If a policy doesn't exist, whether it's legally enforceable is obviously irrelevant.</p>

<p>Brad, I don't see where Jerry said anything about refusing to comply in the post to which you responded at 4:51. And I don't see where your reply said anything about refusing to leave. In any event, I agree that a call for an apology is misplaced.</p>

<p>Brad, I don't see where Jerry made any mention of refusing to leave or comply. But neither is really the issue; the OP was never even informed of the mall's policy and given the chance to comply.</p>

<p>I also don't think Jerry meant to suggest that this exclusion was comparable to that of a protected class; I read his post as intending to say that while protected-class exclusion is clearly wrong, the answer is not so obvious with regard to photography, but a few words seem to have been left out of his post.</p>

<p>Jerry, I agree with Brad and John that the mere mention of discrimination serves to distract from the main issue, and continuing to mention it leads nowhere. The same is probably true as regards whether a policy <em>should</em> <em>be</em> legally enforceable, but I obviously think whether a policy <em>is</em> legally enforceable remains a valid question.</p>

<p>John, I agree that references to discrimination are getting away from the original issue, and I also agree that photographers are not a protected class. But there are many who maintain that photography is a protected activity under the First Amendment; I'm a bit skeptical, but I don't think it's a settled matter.</p>

<p>In many cases, some of which I described, the unenforceability of a policy has nothing to do with protected classes, so most of Jerry's comments still apply. There's certainly nothing wrong with abiding by an unenforceable policy out of courtesy, but it's outrageous when security personnel resort to intimidation to enforce what's unenforceable.</p>

<p>Well said, Jerry.</p>

<blockquote>... many mall operators have very deliberately started to "brand" their malls as a destination, and as an entitity/activity all its own.</blockquote>

<p>This doesn't sound much different from promoting a city as a destination, and it is exactly this type of positioning that led the courts in <em>Cox</em> , <em>Pruneyard</em> , and others to treat common areas of malls as essentially traditional public forums. In recent years, however, the courts have also held that standalone “big-box” (or in some cases, even several such stores with common parking but without other mall amenities) do not merit such treatment. So I think the distinction is valid, particularly in a shopping mall such as San Jose's Santana Row that is built to resemble traditional downtown streets; this seems somewhat akin to the “planned community” to which you referred. I've not personally tried to photograph there, but I know several photographers who have been chased out (yes, San Jose has a criminal trespass law).</p>

<p>How far should one go in deferring to the wishes of private property owners, especially in common areas? Should the mall be given absolute leeway to bar visitors based on dress or the length of their hair? Would you rescind the now decades-old requirement to allow solicitation of signatures? I think it's safe to say that most businesses would prefer that such people went away and never returned (as Damon's photo indicates ...). At least in California, the courts have clearly indicated where they stand, for good or for ill. This doesn't necessarily address the question of what one <em>should</em> do, but it does suggest that making a distinction between common areas of a mall and the mall owner's living room isn't unreasonable.</p>

<p>I think not getting wound up cuts both ways; when a mall's agents go out of their way to enforce policies that serve no real purpose, they do no one any favors. This is especially true when they resort to intimidation to enforce a policy that they cannot legally enforce, be it deleting images or even remaining on property when asked to leave. I certainly don't have a problem with removing people who are disruptive (or potentially so, as in the case of the knife carriers that Barry described). But I might take issue with a more arbitrary request; unfortunately reasonable (and even unreasonable) people may differ on what's arbitrary. Refusing to leave a mall when not legally required to do so may be boorish, but resorting to intimidation in enforcing an unenforceable policy borders on criminal. Here again I think the distinction is important.</p>

<p>Alex, just for the record: a BART cop did not kill a sleeping passenger. The person killed had been detained incident to a minor disturbance; he was, however, unarmed and was shot while lying face down on the ground. The BART cop who shot him has indeed been charged with murder, but the trial hasn't even begun.</p>

<p>I agree that the language of the photo policy isn't a tour de force of legal writing, and it's perhaps unnecessarily intimidating. But I think it's effect is as Brad described it—if you're shooting for your own use, you don't need a permit; otherwise, you do. This policy is similar to that of many other public agencies.</p>

<p>A policy, of course, doesn't have the force of law. But the usual rules apply: a BART cop can detain you on reasonable suspicion that you're involved in a crime (e.g., shooting commercially without a permit), and can arrest you on probable cause that you have committed it. I doubt that simply having a professional-looking camera (or perhaps even a tripod) would constitute even reasonable suspicion, but I don't think this issue has ever been settled anywhere. It's probably a different story if you arrive with a large crew, but I assume that's not the issue here.</p>

<p>In any event, unless BART have passed a very recent resolution, it doesn't appear that there is any basis for prohibiting photography for personal use.</p>

<blockquote>should realize that their own wishes take a back seat to those of the property's owner? This is just basic common sense, and the sort of vanilla social normalcy that everyone should support, because they would want those same options on their own property.</blockquote>

<p>Matt, you're certainly entitled to this opinion, and in many cases it's probably the best approach, as I have indicated. But to impose it on others as a blanket policy is going a bit far. A man's home may be his castle, but a shopping mall is not a man's home, and to equate the two is ridiculous. As I (and the California courts) have indicated, we need to distinguish between the common areas of a mall, which in many cases are the analog of city streets, and individual businesses, which have greater leeway (both logically and legally) to regulate behavior. Cox was arrested for ... gasp ... associating with a longhair. Would you really suggest that he was wrong in not deferring to the San Rafael shopping center's wishes?</p>

<blockquote>Don't trot out California statutes ...</blockquote>

<p>Again, you're entitled to your opinion, but recognize that it is no more than that. I agree that the law doesn't come into play in personal determinations of what's reasonable. But it was suggested that the owner of private property can impose whatever rules he chooses, and can have someone arrested for refusing to follow them or leave the property; as a blanket statement, this simply isn't correct, and at this point the applicable law is what ultimately governs.</p>

<p>I generally try to avoid confrontations with security personnel (or anyone else, for that matter). But I'll nonetheless sometimes reserve the option to determine what's reasonable myself. In many cases, you and I might agree, but in others we might not.</p>

<p>Monika, Damon was being sarcastic—the the incident to which he alluded was the killing of an unarmed man (Oscar Grant) by a BART police officer who has subsequently been charged with murder.</p>

<p>In the U.S., the authority of public transit agencies is determined by law; if there is a law restricting or prohibiting photography, agency police can enforce it. Absent such a law, there is nothing they can do (at least legally). Perhaps BART have recently adopted an ordinance that authorizes the policy that the OP mentioned, but I'd want to see it to believe it. Since the killing of Oscar Grant, BART police haven't generally been held in the highest regard.</p>

<p>Barry, for authority on PC §602(k), see <em>In re Wallace</em> (1970) 3 Cal.3d 289; since <em>Wallace</em> was decided, subdivision (j) has been recodified at subdivision (k).</p>

<blockquote>... if a patron complained to a store manager or personel that their photo was taken and it bothered them, after the store informs you that people have complained please stop taking pics, if you persist, then you can be at least accused of intending to interfere with the business. You might beat that wrap, but the police would have grounds for an arrest.</blockquote>

<p>Penal Code §602(k) and §602.1(a) are misdemeanors, so an arrest for either would need to be made by the store manager rather than the police (a misdemeanor arrest can be made only for an offense committed in the presence of the arresting person). Consequently, the offense would need to be witnessed by the store manager, as the Wal-Mart manager in <em>Hamburg</em> discovered. Moreover, unlike a peace officer, a private person cannot arrest on probable cause, and a private person has no immunity from suit; if an offense has not been actually committed, the arresting private person is in trouble. The question whether photographing people constitutes intended or actual interference may be a bit tougher, but the answer usually relies on whether the conduct would disturb a reasonable person (this concept is long established in California statutory and decisional law, including alleged harassment that was the topic of endless discussion about the misadventures of Thomas Hawk). That merely taking pictures would rise to the level of interference seems like quite a stretch, but absent solid authority, this is obviously just speculation. In any event, a private person making such an arrest would be sticking his neck out, and would need to ask himself one question ...</p>

<p>Again, I think we must distinguish be between jurisdictions that have criminal trespass ordinances and those that do not. First Amendment rights come into play only in the former, and I can't find anything even remotely related to photography in that context; as I've said, absent some pretty solid authority, I'd probably not risk arrest on the assumption that photography is a protected activity. To me, the question seems unsettled. But if a jurisdiction doesn't have a criminal trespass ordinance, First Amendment issues are largely irrelevant—a person who simply refuses to leave the property has committed no offense. I guess the possibility of alleged interference with a business would remain, but as I've said, this seems like quite a stretch. I'd love to see some relevant jurisprudence, but let's face it—this isn't the type of issue that usually makes it to the appellate courts.</p>

<p>For what it's worth, here's the BART <a href="http://www.bart.gov/about/business/permits/photopermits.aspx">photography policy</a> ; there is no mention of what you just described.</p>

 

<p>To my knowledge, this policy has no support whatsoever in law. BART are a special district empowered to enact their ordinances; it's tough to examine BART ordinances, though, because they haven't been codified (though I'm told they're in the process of doing so) and many aren't available in electronic form. I'd ask the police for the specifics on the authority for the policy. I'd do so very carefully, of course, lest one get the Oscar Grant special.</p>

<blockquote>Its irrelevant because there isn't an issue raised here as to whether the real property owner has a right to require that someone leave the property.</blockquote>

<p>It has been suggested in several posts that a person can be asked to leave a mall and can be arrested for trespass if he refuses to do so. I disagree with this as a general statement and support my position with considerable authority. The law is relevant. Again, I don't suggest that these laws have anything to do with deleting images. There seems to be general agreement that one need not comply with such a request.</p>

<blockquote>We all know that they can.</blockquote>

<p>How do we know this? <em>Cox</em> and <em>Hamburg</em> , among others, refute this assertion directly, exhaustively, and unambiguously. In essence, what they held is that California law really does mean what it says.</p>

<blockquote>Unless there are special rules under the law for for treating photographers that refuse to leave, as opposed to non-photographers, whatever they are allowed to do.</blockquote>

<p>In some cases, at least in California, there is nothing that they are allowed to do. It is clear from <em>Hamburg</em> that Ukiah police were well aware of this:</p>

<blockquote>“The officers entered the store, met with Estes and gave him copies of Penal Code sections 602 and 602.1. An officer explained that section 602 was not applicable because the store was open to the general public (see Pen. Code, §602, subd. (n)), and also explained ‘the criteria for a violation of [section] 602.1, [subdivision] (a),’ which applies to business establishments open to the public.” [116 Cal.App.4th at 507]</blockquote>

<p>Police were unable to arrest under a local ordinance because Ukiah does not have one. This contrasts with the situation in <em>Lushbaugh v. Home Depot</em> (2001) 93 Cal.App.4th 1159; Glendale, CA, in which the Home Depot store was located, has a criminal trespass ordinance, and Lushbaugh was arrested for violating it. It also appears that the Ukiah police did not consider forcibly removing the protesters an option.</p>

<p>The plaintiffs in <em>Hamburg</em> were arrested by the Wal-Mart under Penal Code §602.1(a), which prohibits interfering with a business (similar to the section that Barry mentioned, but involving actual conduct rather than simply entering property with that intent).</p>

<p>The <em>Hamburg</em> Court ruled in plaintiffs' favor because the alleged offense had not been committed in the store manager's presence (a requirement for a non-warrant arrest in California); this is the “technicality” to which I referred earlier. But the evidence supporting the store manager's claim was also flimsy; it was unnecessary to rule on it because of the invalidity of the arrest. The Court also made it clear that mere presence on the property did not rise to interference.</p>

<p>It would seem obvious that the existence of a local trespass ordinance is key to whether the owner of private property can take any action based on trespass. If there is such an ordinance, they can; if there isn't, they can't. Perhaps there is some other remedy, but I've yet to hear what that might be.</p>

<p>In <em>Cox</em> , the Court made it clear that even when there is a local trespass ordinance, the right of a property owner to exclude is not absolute. What's unsettled as nearly as I can tell is whether photography is an activity that a property owner can reasonably restrict in a jurisdiction. But I assume that police would not hesitate to make an arrest unless there was clear jurisprudence that photography is protected, and I'm not going to argue with a property owner in a jurisdiction with such a law. I have no great desire to shoot in shopping centers (though I could imagine a couple of exceptions), the issue has only come up once (I complied with the guards' request, only to learn the next day that they misunderstood the center's policy).</p>

<p>My point in all this is simply that contrary to what many here have said, however eloquently, a property owner cannot always absolutely regulate visitors' activities. This position is supported by considerable authority, and I would urge anyone who insists otherwise at least review the cases I've cited. In choosing between an unsupported personal opinion and those of the California courts, I'll generally go with the latter. If I've somehow misinterpreted the court's words, of course, that's another issue.</p>

<blockquote>The California codes and cases cited for real estate issues and government police have nothing to do with what happened here.</blockquote>

<p>The OP didn't indicate where the mall was located; if it wasn't in California, the cited codes and cases obviously wouldn't apply. And if the mall was in California, these laws also have nothing to do with the demand to delete images. I'm not sure the same would be true for a demand to leave the property; why would statutory and decisional law be irrelevant? Is it some other common-law right that controls?</p>

<blockquote>The fact that a property owner can require people to leave their property is clear.</blockquote>

<p>And what does the property owner do if a person refuses to leave?</p>

<p>Barry, if they weren't talking arrest, a trespass law may not even have been at issue—the case you described sounds much like the civil trespass that I mentioned. The advice I was given was simple—if the police get called in, get out unless you want to pay for my new Benz.</p>

<p>I'd guess that the venue and the security guards settled because their legal counsel had concluded that, even if they were likely to prevail, contesting would cost far more than settling. As a middle-aged Euro type, I'd probably have a lot less leverage with a claim of discrimination.</p>

<p>It still would be interesting to learn the legal theory that was involved. I've discussed this with five different attorneys and gotten at least three different answers.</p>

<p>Barry, there is of course another angle on this, and it's one to which I've never gotten a solid answer—the right to use reasonable force (possibly with the assistance of a peace officer) to remove a person from private property under theory of civil trespass. It is my impression that police and the courts take a dim view of those who resort to self-help remedies (and property owners are reluctant to employ them because of liability concerns), but one attorney who specializes in commercial real estate did tell me that an owner's agent (i.e., a guard) might resort to it. It would be interesting to hear what your associates think of that option.</p>

<p>Barry, believe it—at least in California; the <em>Cox</em> court made that quite clear. It seems to be drilled into everyone's consciousness (including mine until I read the law) that a private property owner has an absolute right to exclude persons that he or she does not want. But again, in California, that isn't the case even when there is a local trespass ordinance. In <em>Cox</em> , the Court held that</p>

<blockquote>“The San Rafael trespass ordinance does not endow the shopping center with an absolute power arbitrarily to exclude a would-be customer from its premises.” — [3 Cal.3rd at 211]</blockquote>

<p>Unfortunately, I don't think it's really known how non-absolute the right to exclude is, and we may never know unless someone with some extra time and money wants to call the question. That ain't gonna be me ...</p>

<p>Much of the rationale for limiting the right to exclude derives from the concept that at least to some extent, shopping centers have replaced city streets as public forums; this idea was central to <em>Pruneyard</em> . We could forever debate whether this is as it should be, but such a discussion would seem irrelevant. What's relevant is the law.</p>

<p>I don't think anyone would get very far claiming that photography per se was a violation of Penal Code § 602(k). This isn't to say that someone wouldn't try; see, for example <em>Hamburg v. Wal-Mart Stores</em> (2004) 116 Cal.App.4th 497. But the move backfired in that case, with those arrested getting $90,000 from Wal-Mart for simply getting booked and released (Ukiah police assisted in a citizen's arrest). Admittedly, a couple of technicalities were involved, but it's still quite a different situation from being subject to arrest simply for refusing to leave.</p>

<p>Local ordinances are usually more succinct but not always that clear. Many have exceptions for expressive activity that are similar to those in the San Rafael ordinance at issue in <em>Cox</em> , but absent a clear interpretation of a law that a certain activity (like photography) is permitted, one who would assert such exceptions as a basis for refusing to leave is probably asking to get arrested. It's not worth the time, trouble, and expense to me.</p>

<p>I tend to agree with Barry and several others that it may not be worth the hassle even when there is no criminal trespass law. I also agree that there's no need to delete images; if one were to simply comply with a request to leave without deleting images, I doubt that most security personnel would push the matter. If they did resort to force in deleting an image, it probably would constitute robbery; whether a DA would charge would be another matter, but the guards and their employers would presumably subject to civil action. In any event, I agree with Brad that refusing to delete an image isn't picking a fight (unless you do so in a particularly obnoxious manner).</p>

<blockquote>Are you sure about that Conrad?</blockquote>

<p>Fisher, you might want to read the second paragraph of subdivision (t), which reads, in relevant part</p>

<blockquote>“This subdivision shall apply only to a person who has been convicted of a violent felony, as specified in subdivision © of Section 667.5, committed upon the particular private property.”</blockquote>

<p>Penal Code § 602(o) still governs, and it applies only to property not open to the general public. Local jurisdictions are still free to enact stricter ordinances, but even then there are some limitations: in <em>In re Cox</em> : (1970) 3 Cal.3d 205, the California Supreme Court held that a business establishment may impose “reasonable regulations rationally related to the services performed and the facilities provided,” and similar language found its way into § 41.24(d) of the Los Angeles Municipal Code, which reads, in relevant part,</p>

<blockquote>“A request to leave may be made only if it is rationally related to the services performed or the facilities provided.”</blockquote>

<p>But <em>Cox</em> was a petition for habeus corpus; because no facts had been determined, the Court were unable to determine whether petitioner's were unreasonable. To my knowledge, there has not been a definitive interpretation of what constitutes reasonable regulations; related subsequent jurisprudence has focused on gathering signatures (e.g., <em>Robins v. Pruneyard Shopping Center</em> (1979) 23 Cal.3d 899), so I'm not sure most of it is relevant to the issue at hand. It may be worth noting that recent jurisprudence has somewhat narrowed <em>Robins</em> ; for example, a large standalone store such as Home Depot or Wal-Mart is not the same as a shopping center. Consequently, I'd guess challenging an ordinance that might be used to eject a photographer would be a costly uphill battle.</p>

<p>I also agree with Gil; even in a place where there is no law for criminal trespass, one must choose one's battles. It's sometimes just not worth risking equipment damage or injury when confronted by a nutcase who's looking to push someone around.</p>