Man indicted for taking pictures of accident scenes

[MrYuk]

Interesting article for you fire photographers. There was some interesting discussion on the Houston Fire forum.

http://abclocal.go.com/ktrk/story?se...cal&id=5035198

The media is obviously the problem here, not that fact that the pictures are being taken. What this case boils down to is any member affiliated with a 'Fire Department" whether a firefighter or photographer, can not turn around and sell the images from a scene to the media. This is the reason FH does not pay for their photo stories. A few on the HFD forum were surprised that the department did not stand behind their photographer but as I told them, it is the same as working for your city's newspaper #1 and selling the same pics to your city's newspaper #2

[Chazz2771]

Unless he was wearing the "FD Photographer" vest and FD ID card, then I see that he did nothing wrong.......he's a freelance photographer, it's his job to take pictures and sell them. Now if he used his FD ID to get onto the scene than nail his ***......need some more details I guess

[dday05]

I think this will be an interesting thing to follow. I'm just wondering if it's becoming a big deal because a police car was involved. What if it was the everyday driver in their pov involved? Do you think this would be going on still? I agree we need more info.

[Dickey]

HMMMM....

Very interesting. He must have used his ID as if he was in an official capacity for the FD. I'm curious to know more details.

I take pictures all the time of other fire departments in action. I have sold several photos to the press as well as the guys in action with no problem at all. I don't use any ID and stay back out of the way like everyone else, even though everyone knows who I am and knows that I am there taking pictures. Several fire houses around here have pictures posted in the station from me. I don't see a problem at all with it.

There are more details here that are not being told. Stay tuned!

[hfd326]

I guess the big question is what law was he violating? He apparently wasn't paid by the FD or city, he apparently took pictures of activites in the public domain, and if he was not wearing his FD vest and ID then why would he not be allowed to sell the pics? Now if he was being paid by the FD it would be a different story. Wonder whats behind door number 2?

[DeputyMarshal]

I guess the big question is what law was he violating? He apparently wasn't paid by the FD or city, he apparently took pictures of activites in the public domain, and if he was not wearing his FD vest and ID then why would he not be allowed to sell the pics? Now if he was being paid by the FD it would be a different story. Wonder whats behind door number 2?

The story gives very little information but I'd guess that the charge is that he used his "privileged" access to the scene to get into places the press was not supposed to be allowed to go.

If that's what happened the case will turn on whether he actively abused his access or the department failed to control the scene.

FWIW, we have a couple of quasi-official FD photographers, too, but they aren't really given any more incident scene access than the press is.

[Dave1983]

Id be willing to bet some of the photos show the victim or victims. If thats the case, that can be looked at as a HIPPA violation. We had the same thing happen here. A county EMS field supervisor was reprimanded for having accident photos posted on his own website.

[legeros]

Here's a good article covering the HIPAA and EMS issues: http://info.jems.com/jems/emsphotography.html

mjl

[Firetacoma1]

Id be willing to bet some of the photos show the victim or victims. If thats the case, that can be looked at as a HIPPA violation. We had the same thing happen here. A county EMS field supervisor was reprimanded for having accident photos posted on his own website.

It amazes me that people STILL don't understand HIPAA. A photographer (even if they're a firefighter) does NOT have to play by the HIPAA rules as long as they're not getting any information from the transport personnel working the patient. They are the only ones required to abide by HIPAA. Here is a good FAQ site on what HIPAA is and isn't. http://www.rtnda.org/foi/hipaafaq.shtml

It sounds to me like the cops are ****ed that the photographer took pictures of their dead Chief. I can understand that, but I don't believe they have a legal leg to stand on. I could be wrong, it's happened before.

[randsc]

A little more perspective

WHARTON - Questions have been raised about whether the Department of Public Safety illegally seized photos taken by a freelance photographer at the scene of a fatal wreck in Wharton County. But also in question is whether the photographer misused his position as an honorary volunteer firefighter to gain access to the wreck scene.

Freelance photographer Elmer Cavender has maintained in interviews that it was only after he was threatened with arrest that he turned over to the DPS the photos he took Jan. 19 at the scene of a wreck in which Needville school district police chief Ernest V. Mendoza was killed. He also turned over the negatives of those photos. But the DPS and Wharton County District Attorney Josh McCown have maintained that the photos were turned over voluntarily by Cavender and are being held as part of the investigation into the wreck.

Freedom of Information Foundation of Texas consulting attorney Paul Watler said the DPS had no authority to take Cavender's photos.

"Absolutely not," the Dallas-based Watler said. "The freedom of the press includes the right to take photos of incidents that are visible in public places and are newsworthy events."

The wreck took place at the intersection of Farm-to-Market Road 1301 and County Road 113.

"The government has no right to confiscate the work product of a working journalist," Watler said. "The law provides for due process and if they wanted the photos, they needed to get a subpoena and establish there was wrongdoing and file a lawsuit to get the photos."

Watler added that he believes it is actually in the best interests of law enforcement officials to have Cavender taking photos at crime scenes for publication.

"Photos like that appearing in newspapers serve to remind the public of the hazards of the job that law enforcement officers do for us," he said.

Some of Cavender photos appeared in the Houston Chronicle and the Wharton Spectator-Journal. The Victoria Advocate also bought and published one of the pictures.

Although he is a freelance photographer who sells images to a variety of publications, Cavender also had a long-standing arrangement with the Wharton Fire Department to serve as their official photographer. The department had provided him with a special vest and photo identification for that purpose.

The DPS says it considered Cavender as acting as a public servant and not a member of the working media at the wreck scene.

Texas Attorney General spokesperson Lauri Saathoff said the state office declined to comment on whether there were any state laws or regulations regarding the legality of an honorary, volunteer or paid public servant selling photos of a wreck scene, or whether the DPS was authorized to seize photos or negatives taken by an individual at a wreck scene.

But McCown said, "The vest and ID were used to allow him to gain closer access to the scene than other media photographers are allowed. The DPS troopers felt that he was there in his capacity as a volunteer fireman and not as a journalist."

In an interview with the Advocate, Cavender identified DPS Sgt. Danny Terronez and Trooper Royce Korenek as those who seized his photos. Several phone calls to Terronez were not returned before the DPS office in Pierce adopted a position of referring all inquiries concerning the incident to McCown's office.

DPS-Austin spokesperson Tom Vinger said that he could not comment on the specifics of this particular case but said the department does have a policy regarding wreck scene access to the media.

"The troopers have the right to control access to a scene," he said. "We cannot prevent photographers or reporters from approaching a scene but we to have the right to determine how close they can come. We have to balance scene integrity with the media's right to do their job. It is up to the discretion of individual troopers at the scene to determine how close reporters can get."

Cavender told the Advocate that he had already taken his photos and was leaving the scene when the DPS troopers arrived. Other emergency responders were already there. The DPS did not take possession of the photos at that time; the troopers approached Cavender later.

McCown said that Cavender has not been charged with any crime, but added that there is a continuing investigation into his actions. He said he hopes to present his findings to Tuesday's grand jury.

"We have sent subpoenas to several media outlets and individuals," he said. "I'd rather not comment on any specific possible charges that maybe brought up at this time because this is an ongoing investigation."

Cavender admitted to having shown the photos to two Wharton police officers he met in a tavern. He said that a third person glanced at the photos, which were displayed on a pool table, but quickly turned away. He said he now realizes the decision to show the photos was in poor taste.

"I never meant to hurt or embarrass anyone," he said, "in particular, the victim's family. My regret is that it might have caused someone harm or to be uncomfortable and wish now that I had never done it."

It was not until after that incident in the bar that the troopers approached Cavender. While not saying it prompted the investigation, McCown did confirm the tavern incident is one of the things for which Cavender is under investigation.

"It was terribly inappropriate behavior and a horrible breach of privacy," the district attorney said. "Pulling those photos out in a bar was a disgusting act, but it is up to the grand jury to determine if it was illegal."

While the legality of Cavender's actions is still in question according to the DA, it was enough to prompt Wharton Fire Chief Anthony Abbott to pull Cavender's credentials with the department.

"What made it an issue for us is the (negative) publicity it has generated for the department and the potential liability to the city," Abbott said. "I received a number of phone calls from different media outlets wanting to purchase photos or film from the scene. I told Elmer not to sell the photos and that the fire department does not condone it. Our agreement with him was that he takes pictures for the department for training and not for his personal gain. He was misrepresenting himself when he decided to sell the photos after I called and told him not to."

Cavender had a different recollection of his conversation with the chief, saying that he had already made arrangements to sell individual photos to the Advocate, Chronicle and Journal-Spectator, as he has in the past. He said he had already declined to sell the photos to any other media outlets when he talked to the chief.

Abbott added this is not the first time there have been conversations regarding Cavender's status as both an honorary member of the fire department and as a working member of the media. The chief said it has been discussed with Cavender and DPS on several prior occasions. When asked, Cavender maintained there were never any discussions about his dual role until this incident.

Advocate Editor Scot Walker said Cavender's photos of wrecks, fires and crime scenes have been appearing in the newspaper for years, and have always carried his byline.

"Elmer's dual role as a freelance photographer and as the fire department's photographer has been anything but a secret," Walker said. "I think we've published more than 20 of his photos in just the past year. Why is it only now that this has become objectionable to anyone in law enforcement?"

Walker said the Advocate was among the media outlets that received subpoenas.

Cavender speculated the interest in the photos from this particular wreck was due in part to the fact that it involved the death of a law enforcement official.

In a recent story in the Journal-Spectator, that newspaper claimed to own the negatives and prints and has demanded that they be returned. That story stated that the newspaper was considering legal action in response to the actions of Terronez and Korenek. Multiple calls by the Advocate to the Journal-Spectator for comment on their relationship with Cavender and any potential lawsuits were not returned.

For his part, Cavender said that he would continue his work as a freelance photographer, while McCown and DPS-Austin said they had no problem with that as long as he followed the same guidelines as other media.

"I don't make a lot of money selling photos," Cavender said. "But I have a background in law enforcement and see taking my photos and having them published as being something positive. It reminds people of the need to be aware when they are driving and to not drink and drive. I think the photos are a reminder for people to think about the consequences of their actions."

[DeputyMarshal]

Id be willing to bet some of the photos show the victim or victims. If thats the case, that can be looked at as a HIPPA violation. We had the same thing happen here. A county EMS field supervisor was reprimanded for having accident photos posted on his own website.

It's only a HIPAA violation if the photographer was working as part of a health care provider's organization and only if that organization was in the practice of builling for services. (As, presumably, the EMS supervisor mentioned was.) Even that doesn't apply if the pictures were taken in public of an event visible to the general public.

[Dave1983]

It's only a HIPAA violation if the photographer was working as part of a health care provider's organization and only if that organization was in the practice of builling for services. (As, presumably, the EMS supervisor mentioned was.) Even that doesn't apply if the pictures were taken in public of an event visible to the general public.

You would think. But HIPPA is the reason they used to disciplin the supervisor in question. I think I have a pretty good understanding of HIPPA, but its clear a lot of people dont. I know our county dispatch no longer lists the address of EMS calls on the public "current call" page on the county website. HIPPA was the reason behind that as well, all though I dont think it applies.

As for what I said earlier about this incident, it was just a guess that maybe the DA there doesnt understand HIPPA either. But now it sounds ike it was the use of the ID to gain access deal. Which if that is the case, sounds to me like a matter for the photographers FD, not a DA.