Patterico's Pontifications

3/12/2008

Expectations of Privacy in a Public Place

Filed under: Law — DRJ @ 12:04 pm



[Guest post by DRJ]

The law says you have an expectation of privacy in some places/situations. In Oklahoma, at least for now, that doesn’t include under your clothes in a public place:

“A man accused of using a camera to take pictures under the skirt of an unsuspecting 16-year-old girl at a Tulsa store did not commit a crime, a state appeals court has ruled.

The state Court of Criminal Appeals voted 4-1 in favor of Riccardo Gino Ferrante, who was arrested in 2006 for situating a camera underneath the girl’s skirt at a Target store and taking photographs.

Ferrante, now 34, was charged under a “Peeping Tom” statute that requires the victim to be “in a place where there is a right to a reasonable expectation of privacy.” Testimony indicated he followed the girl, knelt down behind her and placed the camera under her skirt.”

In general, as this law review article explains, traditional criminal and civil laws do not recognize that an individual can have an expectation of privacy in a public place. That theory, along with an analysis of the relevant statute(s), was the basis for the court’s decision. The court noted it is up to the legislature and not the courts to criminalize specific behavior.

Defense counsel, obviously, agreed:

“Ferrante’s attorney, Kevin Adams, said Tuesday that Gillert “made the right decision” and that “it is really up to the Legislature to make this against the law if they want to do so.

“I think it is a scenario where the law has not caught up with technology,” Adams said.”

I’m sure the Oklahoma legislature will catch up soon.

— DRJ

62 Responses to “Expectations of Privacy in a Public Place”

  1. Obviously, I live in the wrong state…

    KIDDING!

    You don’t think she had some sort of right to not have her PANTIES photographed? And isn’t she under age? Aren’t those pictures a form of child porn?

    Scott Jacobs (fa5e57)

  2. Scott,

    It’s another example of where the law has to play catch up, in this case with technology. Before, it always worked to say you have an expectation of privacy in a private place but not in a public place. Now that we have more intrusive technology, including things like security xrays that can see through clothes, we have to rethink the way the law considers these issues.

    DRJ (a431ca)

  3. Yeah, but pictures of panties isn’t the same as watching someone at the public pool wearing 90% of nothing, if you get my meaning…

    I ask this: if she were willing, and it was done in private, would it have been legal for that man to photograph her in her panties?

    Scott Jacobs (fa5e57)

  4. I don’t know the particulars of Oklahoma’s pornography laws but I assume they require graphic sexual depictions or conduct. I don’t think this would meet that test.

    DRJ (a431ca)

  5. In Japan, there have been a great many of these events going back some years. The perps are charged under a law that translates something like “creating a nuisance”.

    Here is one such case within the last month:

    http://mdn.mainichi.jp/national/news/20080214p2a00m0na014000c.html

    jim2 (6482d8)

  6. Had it been my kid, *I* would be brought up on charges…

    Charges related to beating the shit outta the guy…

    Scott Jacobs (fa5e57)

  7. she’s my upskirt girl
    she’s living in her upskirt world
    bet she never had a downskirt guy
    bet her mama never told her why…

    assistant devil's advocate (10f2d6)

  8. Charges related to beating the shit outta the guy…

    And destruction of private property (the camera), creating a public safety hazard (possible slip&fall from the blood), noise violations (his yells of pain), etc… wouldn’t go that far, but the temptation would be there. I also wouldn’t expect the jury to nullify. 😉

    Stashiu3 (460dc1)

  9. Hell no. I’d testify for the prosecution.

    “No, taht’s when I took the nearby display rack and attempt to insert it into his anus. The baseballbat into his ear wasn’t until he crawled past sporting goods…”

    Scott Jacobs (fa5e57)

  10. Louisiana addressed this about 10 years ago – some may recall the case where a neighbor wired someone’s house and basically got away with most of the charges because there were no explicit laws against it.

    “Unfortunately for the victims, the Louisiana Penal Code did not
    specifically criminalize video voyeurism.179 Thus, the church deacon
    eventually entered a plea of unlawful entry, and currently is serving
    only three years of probation.180 After months of vigorous debate
    within the legislature,181 Louisiana recently passed a statute that
    directly addresses the intrusive nature of video voyeurism.182 The
    statute prohibits, “[t]he use of a camera . . . or any other image
    recording device for the purpose of observing, viewing,
    photographing, filming or videotaping a person where that person
    has not consented to the observing . . . or videotaping and it is for a
    lewd or lascivious purpose.”183
    In other words, the new law protects individual privacy in both
    enclosed and public settings.184″

    39 page review is below

    http://www.wcl.american.edu/journal/lawrev/49/vol49-5rothenberg.pdf

    voiceofreason2 (590c85)

  11. If this creep was not out on appeal bond (the article does not say) it’s a decision without much of a difference. He already served the time.

    nk (8a8387)

  12. I want privacy in situations like this, but it’s going to be hard to draw the line given today’s technologies. What if I take a picture of someone with my cell phone that unintentionally captures a revealing image of a second person? There has to be an intent element but that always makes enforcement difficult.

    DRJ (a431ca)

  13. Stashiu #8,

    Don’t be silly. It’s not your fault that he and his camera were on the floor where you were stomping walking. You have a suit against him for creating a hazard to innocent shoppers in the store.

    nk (8a8387)

  14. Even a cat may look at a king. The law need not make the world a “no look-no see” place for idiot teenagers who want to wear revealing clothes. But this guy sounds like a pervert to me.

    nk (8a8387)

  15. If the guy put her pictures on the internet and the girl could prove it was her, could she sue him for not paying her for the photo?…. and of course set her own price for the photo… say… 10 million dollars or so?

    EdWood (3f7691)

  16. nk,

    I’d have to admit I did it all intentionally, if only to let the next person who thought about it what they could expect to happen.
    😉

    Stashiu3 (460dc1)

  17. FYI, the decision, which will be interesting to read, should appear soon at the Oklahoma Court of Criminal Appeals website (decisions current only up to 3/11 now) at: OK Criminal Court of Appeals decisions

    In his sole dissent, Appeals Judge Gary Lumpkin said he found the majority’s finding of no reasonable expectation of privacy “interesting and disturbing.”

    JayHub (0a6237)

  18. Stashiu #16,

    Sometimes you have to listen to your lawyer. A stomping and a money judgment against him would send a message to all perverts not to be creating floor hazards to innocent shoppers. You could also buy that cherry-red Ford 150 pickup truck with a gun rack and bed-cover that you have always wanted.

    nk (8a8387)

  19. I stand corrected sir. Your advice is sound, and upgrading from the cherry-red Ford Ranger with gun rack and bed-cover to the F150 sounds like a great plan! (Scary how you knew that though)

    Stashiu3 (460dc1)

  20. I’m a people person.

    nk (8a8387)

  21. It would be perfectly reasonable for the state to craft a new law that is specifically tailored to these kinds of fact patterns. But trying to graft it on to a broad notion of a ‘right to privacy’ would be a huge mistake that would end up chilling legitimate speech. In that sense, the Appeals Court made the right move here.

    Justin Levine (5ba361)

  22. Damn, Justin, I just can’t wait to see you seated on the Supreme Court. So I could argue that murder with kidnapping, torture and rape is nothing more than expressive speech.

    nk (8a8387)

  23. nk,

    Justin doesn’t get a seat on the SC until after I do… although I’m still waiting for McCain to send his formal agreement.

    Stashiu3 (460dc1)

  24. Funny, Stashiu. I pictured you as a GM truck or maybe a Tundra guy.

    DRJ (a431ca)

  25. Stashiu #23,

    I read your linked post. It’s ok to be Polish but don’t abuse the privilege. Should McCain nominate you to the Supreme Court, call me. I’ll coach you as to how to behave in the hearings. We’ll start with getting rid of the bowling shirt and buying a suit with a white shirt and tie.

    nk (8a8387)

  26. DRJ, most of my family worked for Ford as I grew up in Detroit… loyalty is important.

    nk, If you don’t count uniforms, I went at least 15 years without even owning a shirt that had a collar, much less a tie. I’ll wear my Red Wings shirt and shorts… I just hope they ask me why!

    😉

    Stashiu3 (460dc1)

  27. “No, taht’s when I took the nearby display rack and attempt to insert it into his anus. The baseballbat into his ear wasn’t until he crawled past sporting goods…”

    Scott – That was hysterical, as was that racist Stash’s description of how he would be brung up on charges. Slip and fall in the blood – hysterical.

    DRJ – Calling him a Tundra guy when he is a Found On Road Dead guy can get peoples sideways with you 😉

    JD (626b4c)

  28. JD, I let it go only because it was DRJ… but a Japanese product? Never.gonna.happen.

    Stashiu3 (460dc1)

  29. Yeah, cause why buy a reliable car when you can buy american?

    Scott Jacobs (d3a6ec)

  30. I’m a firm believer in brand loyalty and you can’t beat a Ford truck, but it’s not that common to find a Ford guy outside Texas.

    DRJ (a431ca)

  31. So the rest of the country IS smarter than folks from Texas… :)

    Scott Jacobs (d3a6ec)

  32. Yeah, cause why buy a reliable car when you can buy american?

    Because there aren’t any reliable American cars at all, are there? I guess if that were true, I might only buy Ford cars since that’s what kept food on our table. But I was only speaking for myself and since all my Fords have been reliable, I’ve been able to do both. So it’s not always an either/or situation.

    :)

    Stashiu3 (460dc1)

  33. Hey, there’s a reason Ford is losing money, and it ain’t cause the COE has a hole in his pocket. I’m just saying.

    I have a theory about Japanese design vs. American design…

    Scott Jacobs (d3a6ec)

  34. I’m a firm believer in brand loyalty and you can’t beat a Ford truck, but it’s not that common to find a Ford guy outside Texas.

    Gotta tell you, the last time I was up in Detroit, it was a shock to see how many Ford, Chrysler, and GM products were on the road. I’d forgotten what it was like for foreign cars to be the exception.

    Stashiu3 (460dc1)

  35. I have a theory about Japanese design vs. American design…

    I find your theory intriguing and would like to subscribe to your newsletter. 😉

    Stashiu3 (460dc1)

  36. Of course, Ford’s F-Series has been the best-selling truck for 31 years.

    DRJ (a431ca)

  37. If this turns into an American car vs Foreign car (can’t just be Japanese cars ‘cuz those darn BMW folks always feel the need to chime in) we might launch this thread and beat out the Balko post.

    Just sayin’ 😉

    Stashiu3 (460dc1)

  38. Stashiu – In Toyota’s defense, the Tundra is one heck of a truck, and it is made right here in Indiana.

    I used to have a huge King Ranch to commute to work in, but that was impractical, so I traded up to an Expedition, which was even less practical.

    Now, the Swede’s and those jet engines that Saab makes transport my fat ass around town.

    JD (626b4c)

  39. JD, I really don’t have a problem with anyone who wants to buy whatever they want, or even why they want to. I was really only speaking for myself from growing up in a Ford family. My grandfather actually knew Henry and Edsel Ford.

    Stashiu3 (460dc1)

  40. My grandfather actually knew Henry and Edsel Ford.

    Now that, my friend, is cool. Racist.

    JD (626b4c)

  41. Racist.

    Whatever.

    Polite gentleman.

    😉

    Stashiu3 (460dc1)

  42. Stash – I was calling Edsel Ford a racist. Not you. You are a bigot, not a racist 😉

    How cool would it be to share a meal with Henry Ford today? I wonder if his wildest dreams would have ever envisioned something like Nascar, the Indy 500, a Hummer, or a Corvette?

    JD (626b4c)

  43. i’m happy with my series of toyota trucks (tacoma 4×4 now), getting another one soon. i think they’re more reliable.

    assistant devil's advocate (33bb9c)

  44. Anyone here smart enough to figure out how much it cost me to put 127,000 miles on an Expedition?

    JD (626b4c)

  45. ada, I’ve heard nothing but good things about the Tacoma.

    Stashiu3 (460dc1)

  46. One of my neighbors has one of those in his garage, Stash. Odd car, that one is. The neighbord too, now that I think about it.

    JD (626b4c)

  47. Tacoma – Manufactured in Indiana too.

    JD (626b4c)

  48. If (big if since I don’t often buy tickets) I ever won the lottery, I would still have a Ford truck… parked next to my Lamborghini. 😉

    Tron, Cannonball Run, Saturday Night Fever, Star Wars… can you tell what generation I am? heh

    Stashiu3 (460dc1)

  49. Why change the law? We keep doing that, when the answer is to impeach the POS liberal judge, and the rest of the judges who think like him.

    Next, change the way that judges are appointed.

    If I were the girl’s father, and I saw him do that, I would beat the crap out of him.

    Next, I would face a jury that has been told that they CANNOT consider if my actions were justified?

    martin (86a2e8)

  50. Yep, because your actions weren’t justified. Understandable, I have two daughters… but not justified. He offered no violence, so if you respond with violence you need to accept that there will be consequences. Just like throwing chronic speeders into an active volcano would be an over-reaction, so would beating the crap out of the guy. Just a matter of degree.

    For the record, as I said above, I might do the same thing… but I’d be prepared to go to jail (unless nk represents me… then it’s new truck time!)

    Stashiu3 (460dc1)

  51. Stash – I thought if nk represented you there would be a good chance of death row, no?

    Racist.

    Just kiddin’, nk.

    martin – Gotta agree with stash here. It might feel good to beat the holy hell out of that perv, and it might even be right to do so. But it is certainly not legal.

    JD (626b4c)

  52. nk – Your comment in #22 is of course so silly as to not require a response. Though I WOULD be curious to know how you would respond to DRJ’s challenge in comment # 12 which I think goes right to the heart of the problem.

    Justin Levine (5ba361)

  53. Justine,

    Would a “reasonable person” standard be appropriate to establish intent? Of course, there is always the standard of “intent doesn’t matter”. For example, while at Guantanamo, there are many places that you cannot take pictures of, even in background. It doesn’t matter that you didn’t notice a particular feature, if it’s in your picture, you’re in trouble… period. There are so many spots like that you really have to be conscious of your framing.

    Stashiu3 (460dc1)

  54. Also keep in mind – we are not talking about the question of the girl having a civil suits against this person. We are talking about if there is a specific law that would allow the state to put this person in jail. Call me an old-fashioned defender for the rights of the accused on this here prosecutor’s website, but I believe that criminal laws should have a degree of specificity in order to jail somebody. Simply tossing people in jail under a broad rubric of violating someone’s “privacy” gives far too much power to the state when there is a great deal of disagreement as to what the boundaries of “privacy” should be and what would constitute violations of it that would be so offensive as to be considered criminal.

    Justin Levine (5ba361)

  55. Justin, penumbras, and all that, huh? To the point of your post, I tend to be in agreement with you. Unless there is a law against it, and no matter how perverted the fucker was, I would have a hard time incarcerating him for something that is not specifically addressed in the law. That is also why I would not hesitate to go all MMA on him if he did it to my daughter, and proudly accept the consequences of my actions. And then, I would find the most greasy, slimy, camera lovin’ personal injury attorney, and have him file civil action on behalf of my daughter, and on behalf of me for injuring my fist when he repeatedly struck my fist with his head.

    JD (626b4c)

  56. There’s no First Amendment issue here, Justin. I don’t understand how you came up with that. Unless you figure that taking upskirt pictures of sixteen year old girls is “expressive speech” intended to make a point about the fact …? That they should be wearing burkhas? That they should not be in a situation where a pervert can take upskirt pictures of them? That they should not be girls? I give up. Tell me your First Amendment rationale.

    nk (8a8387)

  57. As for the point DRJ made in her comment #12, once I took a picture-postcard perfect photograph of two little girls and a ground squirrel on Aspen Mountain. If their parents had told me not to, I would not have. Or even destroyed the film if they had asked. Just because new technology says you can do it, it doesn’t mean you have a right to do it.

    nk (8a8387)

  58. Justine – What, they couldn’t shoe-horn something like “exploitation of a minor” to nail the pervert that was taking pictures of a 16-year old girl’s panties?

    Scott Jacobs (d3a6ec)

  59. Remember the Larry Craig debate in which commenters were upset that the police could arrest Craig for vague conduct under a nebulous disorderly conduct statute?

    In a way, this is a similar situation. The defendant’s conduct may be more clearly wrong in this case, but the question isn’t how bad the conduct is. The question is “Does the conduct violate the statute?” In this case, the conduct wasn’t clearly proscribed, so it wasn’t a violation. Larry Craig probably could have made the same argument had he contested his arrest, but he didn’t.

    DRJ (a431ca)

  60. “…it might even be right to do so. But it is certainly not legal.”

    If is might be right, but is not legal, then the law is an ass.

    We have a govt out of a contract that in part requires that they take action in these situations so that we don’t have to. If they refuse, then the contract is broken.

    martin (86a2e8)

  61. Where are the pics?? Are they on the ‘net??

    E (883f37)


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