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Trespassing…on a public street

On Oct. 31, Ian Graham got dressed for work. Although he is a photographer and more likely to wear jeans on the job, he put on a coat and tie.

Later that evening he was wearing handcuffs.

Graham works for RVA Magazine, an alternative entertainment and arts publication in Richmond. That night, he had a free-lance gig to photograph a Halloween party at a trendy Richmond nightclub.

Around 1 a.m., when the typical Halloween bash is at its scariest, he got a phone call from Preston Duncan, the publisher of RVA Magazine. The police were moving on the Occupy Richmond site. Let’s get over there and cover it, Duncan said.

The two men went to Kanawha Plaza in downtown Richmond, a public square that was full of hand-lettered protest signs and a scruffy crowd of people who had been camping there for weeks. Like so many protesters in different cities who sought to follow the example of the “Occupy Wall Street” organizers, they railed, somewhat indiscriminately, against “greed” or corporate anything.

In an account published at rvamag.com, Duncan wrote that while he and Graham were standing on the public sidewalk on the perimeter of the plaza, they were threatened with arrest by the police. They moved to the area designated for journalists. But the view from that corner was obscured.

Graham walked to the middle of a crosswalk to get a better angle. He was arrested for trespassing and handcuffed. There were other people on both sides of the crosswalk, Graham wrote in the same account.

“But none of them had cameras,” he added.

Graham was charged under Virginia Code § 18.2-119, a section called “Trespass after having been forbidden to do so.” It is a Class 1 misdemeanor punishable by up to 12 months in jail and a $2,500 fine.

Graham told me that he was supposed to have a hearing on Nov. 18; he and his lawyer, Patrick Anderson, expected the charges to be dropped. But the Richmond commonwealth’s attorney’s office for some reason is playing hardball, so Anderson got a continuance.

Anderson, who has been retained by the American Civil Liberties Union to represent Graham, said he couldn’t comment except to confirm that the matter is set for trial on Jan. 24. The Richmond commonwealth’s attorney’s office wasn’t talking either; they didn’t return my call by press time.

Graham’s case is one of eight instances across the country in which journalists have been arrested while seeking to cover police activity relating to Occupy protests. That’s a distinction the City of Richmond, and the Commonwealth of Virginia, should not be proud of.

Journalist groups in the commonwealth have lodged protests with police and prosecutors over Graham’s arrest; there is even a Facebook group called “Free Ian Graham.”

The Virginia Code provides a strong statement of public policy about how journalists should be treated when covering news events. It’s about police lines, but you will get the idea. Code § 15.2-1714 allows “personnel from information services such as press, radio and television” to cross a police line “when gathering news,” so long as they don’t obstruct the police in their work. In other words, as a question of policy, journalists with cameras get to go where others can’t, when they are covering news events.

According to Mickey H. Osterreicher, general counsel for the National Press Photographers Association, very few other states provide such statutory protection to the news media. Virginia’s statute is strong and could serve as a model for other states, he said.

What exactly is Graham accused of? Here is the pertinent language of Code § 18.2-119: “If any person without authority of law goes upon or remains upon the lands, buildings or premises of another … after having been forbidden to do so … by the owner, lessee, custodian, or the agent of any such person, or other person lawfully in charge thereof … he shall be guilty of a Class 1 misdemeanor.”

This statute is used by landlords to get rid of deadbeat tenants, by merchants to prevent suspected shoplifters from coming into a store and by public housing projects to keep away undesirables.

Ian Graham, armed with his camera and doing his job as a photojournalist, doesn’t fit that list.

There are so many ifs to a prosecution under this statute: If Graham was there “without authority of law.” If the officers issued a proper warning, “forbidding” Graham from any locale. If the cops were the custodians or “lawfully in charge” of the street. If this statute even applies.

The Supreme Court of Virginia has interpreted Code § 18.2-119 and predecessor statutes in a number of cases. In 1929, the court held that the trespass law does not apply to “thoroughfares,” a position it has reiterated repeatedly. A 1990 Virginia Court of Appeals opinion defined thoroughfares: “those ways or passages designated for public access.” Sounds like a crosswalk to me.

Why hasn’t this case been dropped? Why has Graham been forced to lawyer up and sweat out a possible jail term?

There’s hardball, and then there is the pursuit of unwarranted criminal charges that aren’t supported by the facts or the law. Call that what it is: governmental intimidation and an abuse of an individual’s basic rights.

Free Ian Graham?

Hell, yes. Free us all.

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