“Photography is not a crime, it’s a First Amendment right,” proclaims the title of photojournalist Carlos Miller’s blog.  Nonetheless, a jury found Miller guilty of obstructing traffic and resisting arrest without violence during his encounter last year with five Miami police officers that he photographed on a public street.  As a result, Miami County Court Judge Jose Fernandez sentenced him to one year of probation,100 hours of community service, anger management lessons, and over $500 in court fees, well in excess of the three months probation the prosecutor had been seeking.

Miller was arrested on February 20, 2007, after he saw the police questioning a man "in a gravel construction area between the road and the sidewalk," according to a post Miller made a few days later on Democratic Underground, a liberal online forum.  (The post does not indicate how the construction affected traffic along the street.)  When Miller, who was also standing in the gravel area, started to photograph the police, they told Miller to move along.  Miller said he refused, arguing that it was a public street, and continued to shoot photos of the police.  The police then escorted him across the street and, according to Miller, forcibly arrested him.

In contrast, the police said that Miller began taking pictures of them while standing in the street blocking traffic, according to an officer’s report which Miller has posted online.  The officer wrote that the five police present told Miller to cross to the other side of the street, but Miller refused and continued to take pictures.  When the police attempted to escort Miller across the street, the report said that he resisted, so they arrested him.  (Contrary to the police report, however, the photos that Miller took of the police, one of which appears at the top of his blog indicate that he was not in the street.)

The police initially charged Miller with nine counts, but they were later reduced to four: disobeying a police officer, disorderly conduct, resisting arrest without violence, and obstructing traffic.  The jury found Miller not guilty of disobeying a police officer and disorderly conduct.

The original incident prompted Miller to start blogging, and as the name of his blog makes plain, photographers' rights are his main subject.   “I started this blog to document my trial,” he wrote in the About section, “but as it languished, I began documenting First Amendment violations against other photographers throughout the country, which occur on a shockingly regular basis.”  In particular, he focuses on violations committed by law enforcement; his blog entries feature incidents all over the U.S. of cops confronting people taking pictures or recording videos. He also covered his trial's progress, with which Judge Fernandez expressed irritation during Miller's sentencing.

The verdict against Miller drew "disappointment and concern" from the Society of Professional Journalists ("SPJ"), according to an SPJ press release.

“The fact that Mr. Miller was arrested for taking pictures in a public place was the first violation of his First Amendment rights,” SPJ President Clint Brewer said. “Those rights were violated again when Mr. Miller’s statements in his blog became factors in Fernandez’s sentence. The Society fully defends Mr. Miller’s right to speak freely in his blog.”

The SPJ also took the opportunity to post a guide advising reporters how to avoid confrontations with police while gathering information.

Miller is appealing his conviction for resisting arrest, according to a post on Miller's blog by his trial attorney, though it appears that Miller will have new counsel on appeal.

Unfortunately, it's hard to see how Miller can show that the trial court erred in finding him guilty of resisting arrest without violence.  Of the elements of the crime listed in Fla. Stat. § 843.02, the one most susceptible to challenge would appear to be the requirement that the officers were acting "in the lawful execution of any legal duty." If Miller could show that the officers' arrest for obstruction of traffic was bogus, that would topple the charge of resisting arrest.  But looking at the little evidence available online, the case appears to be Miller's word against the officers' word, and the jury evidently felt the officers' word was sufficient to prove obstruction of traffic.  Without any more evidence, it's difficult to see grounds for overturning the criminal conviction.

But even if Miller's arrest was legal, his sentencing is problematic and merits appeal.  According to another post on Miller's blog, Judge Fernandez seems to have taken personal exception to Miller's lack of remorse, saying that it "appall[ed]" him. While Judge Fernandez is welcome to his personal opinion about Miller, under Florida law, he cannot use Miller's lack of remorse to impose a harsher sentence.

While a sentencing court has wide discretion as to the factors it may consider in imposing a sentence, it is constitutionally impermissible for it to consider the fact that a defendant continues to maintain his innocence and is unwilling to admit guilt. Although remorse and an admission of guilt may be grounds for mitigation of sentence, the opposite is not true.

Ritter v. State, 885 So.2d 413, 414 (Fla. App. 2004) (citations removed). Considering the rather stunning discrepancy between the sentence that the prosecutor sought and the sentence that Judge Fernandez gave, it sure looks like the judge let his feelings about Miller's lack of remorse color his sentencing.  In Ritter, the Florida District Court of Appeal overturned a sex offender's sentence, which went above and beyond that the prosecutor asked for, because the trial judge took umbrage at the offender's continued claims of innocence.  Miller's case seems directly on point with Ritter, and if so, Miller's sentence should be vacated and remanded to a new judge.

(Arthur Bright is a second-year law student at the Boston University School of Law and a CMLP Legal Intern.)

Update:

Carlos Miller contacted us and clarified that it was Judge Fernandez who found him guilty of obstructing traffic, as that charge was a traffic infraction, not a misdemeanor. The jury was only responsible for the verdict on the charge of resisting arrest.