Photographer’s film returned after confiscation by police, NTSB

MICHIGAN–State police in early February returned photographs and negatives confiscated from a Toledo Blade photographer who was detained by police in mid-January while covering the aftermath of a commuter jet crash.

Herral Long and Blade Communications filed a lawsuit in late January in federal District Court in Detroit against the National Transportation Safety Board, an NTSB official, two state police officers and the Michigan Chief Medical Examiner, contending the officials’ actions violated Long’s constitutional rights and were “an impermissible prior restraint” on the Blade’s free speech and freedom of the press rights. The Blade is also seeking compensatory and punitive damages.

In mid-January, Herral Long was detained while taking photographs of a hangar at Monroe’s Custer Airport in the aftermath of the January 9 crash of Comair Flight 3272, in which 29 people were killed. According to Long, he went to the airport to cover the crash and stood in a public area photographing scenes plainly visible to the public. While he was taking photographs of the back of the building where there were numerous plastic bags and storage containers, a policeman emerged and told him he was in a restricted area and that he must hand over his film or be detained.

Tom Shepardson, a New York funeral director working in the temporary morgue set up after the crash for the NTSB, arrived and told Long that he was interfering with a federal investigation and that although he was not under arrest that he would “be detained” until he surrendered his film, according to Long. When he asked if he had committed any crime, Long was told he was trespassing. Long maintains there were no signs or police tape blocking off the area.

Ron Royhab, the Blade’s managing editor, called the Michigan Police Department in Monroe and was told that the incident was already over and that Long had given up his film and left the airport. Although police said Long gave the film willingly, Royhab argued that the film was unconstitutionally seized because Long gave up the film following repeated threats to detain him.

When Royhab called again to request that the film not be developed, he was told that Shepardson had already asked the police to develop the film and had found its content offensive.

Shepardson later told Royhab that he had ordered the confiscation based on an October 1996 executive order by President Clinton that he said empowers the NTSB to protect family members and victims of air crashes.

In late January, as part of the civil suit, Long and the Blade asked the court to order the Michigan police to return the film. In a pre-trial conference the state police agreed to return the film but the NTSB refused to allow the “inappropriate and offensive” film to be returned to Long. NTSB officials subsequently reversed their position and returned the photographs and negatives the day before the February 7 hearing.

The photos in question consisted of two frames of a car bumper, taken while Long was loading film, and four frames of the back of a hangar showing red plastic containers, full garbage bags and the trailer portion of a truck labeled “For Storage Only.” The Blade said it learned from credible sources, including a person who worked in the temporary morgue, that the red bags contained soiled rubber gloves and surgical gowns and that the truck was part of the morgue operations.

Both Shepardson and the Michigan State Police refused to comment on the incident. (Blade Communications v. National Transportation Safety Board; Media Counsel: Fritz Byers)