Penn Station New York arrest

[Village Idiot]

Amtrak Police Harassment Of Duane Kerzic For Photography In Pennsylvania Station New York On December 21, 2008

Discuss.

Edit 01/04/09: How can you help. Write to your President, members of his cabinet, Senators, Congressmen, Governors, Mayors, and anyone that you voted for about this or how you have been personally effected because of incidents like this. That's what I did, I sent letters to Joseph Boardman the CEO of Amtrak and copied everyone I could think of that could have any type of interest as an elected official. It doesn't take long to write a letter, they actually make a huge difference. Things I've written about in the past have been changed for the better. Most politicians have email addresses posted online or a webform to send message on their websites. Use them. Send copies to the people I've listed below. Letters are more efffective then 100 people showing up in Pennsylvania Station with cameras. I will try to write some sample letters and post them to make it eaiser. You can also print out my letters to Mr. Boardman and just put a short note saying I want to be sure you are aware of this and send it off. You can email links to my page here to your representitives. You can email links to my page to Amtrak Media Relations National and NY. Very easy to do. Thanks for your help.

If you have had something like this happen to you in an Amtrak Train Station, on an Amtrak Train or on any property belonging to Amtrak that is open to the public anyplace in the country please contact Todd Maisel of the National Press Photographers Association or me about what happened to you. Use "Amtrak Incident on" as the first words of the subject line. Be sure to include as best you can the what, where and why and when of what happened to you. This way a class action law suit can be prepared against Amtrak showing a pattern of violating the publics civil liberties. Let me know if I have permission to post your data on this web site.

Can you be arrested for making a photograph like this in Pennsylvania Station New York? According to Amtrak Police Officer James Rusbarsky if you decide to ignore his unlawful order to delete your photos, you are are subject to arrest for NYS Penal Code Trespass 240.05. Officer Rusbarsky also states he was just doing his job when he put the handcuffs on me backwards so they caused me discomfort, pain and annoyance. Not only did Officer Rusbarsky violate my civil rights which are protected under the First Amendment he needs to read NYS Penal Code 240.26 Harassment in the Second Degree. I had valid tickets to be on in the station at the time.

Further Officer Rusbarsky stated he was only doing what he was trained to do. So according to Amtrak Police Officer Rusbarsky, Amtrak trains its police officers to not only violate the civil rights granted to the citizens of the United States of America by the Constitution but also to commit crimes in the execution of their duties.

The above photograph is one of the photographs made on December 21, a lens called a Lensbaby Composer was used to make all the photos on that day. The out of focus effects are a result of that lens, not of computer manipulation. None of the photos that are displayed on my pages in the Amtrak Problems category have been manipulated in any way. Some had corrections made to exposure level and toning to enhance them but they are actual representations of what seen and captured. The photographs made before my illegal arrest are here. The photographs made after my illegal arrest are here. I traveled back to Penn Station NY on December 23, 2008 to record the absence of 'No Trespassing' signs on Platform 5, those photos are located here. Fortunately I was going to a photography event on December 21, 2008 and there were plenty of people around to take photos of injuries to my wrist, those photos are located here. Sergeant Taylor of the Amtrak Police took my complaint in Amtrak Incident Report Number 08-12759, he also tried to make it my fault for taking a photograph.

Always remember that making photographs is not a terrorist activity. No one was ever harmed by the action of taking a photo, no buildings were ever destroyed by taking photos. There were no photos found in the property of the 9-11 attackers, no photos found in the London Underground attackers, no photos with any of the suicide bombers, no photos for the attackers of the USS Cole, no photos by Timothy McVeigh, Unabomber no photos, 1st WTC attackers no photos, no photos in the Madrid Train attackers.

"if Amtrak is seeking to promote a national security interest with the banning of all unauthorized photography they will not archive this goal. It is well know that modern cameras and other photography equipment are easily concealed from detection in cell phones, clothing, bags, or other items. Implementation of the ban on photography therefore results in Amtrak penalizing and harassing legitimate photographers for exercising a protected First Amendment right and does nothing to aid in the prevention of terrorism of the transit system."

After the London Underground attack one of the first thing the police did was ask for copies of snapshots anyone took that day, because they might contain evidence as to what was done and by whom. By taking photos you are actually performing a civic duty and helping to protect all of us. Remember this at all times when dealing with anyone about your rights to take photos, you are making things safer by recording what is happening. Look at all the cameras that various agencies are installing in different places to make photos of our actions. We cannot allow only state sponsored photography. It will be used to control us, to remove our rights. The same thing with photos by big media only, this cannot be accepted. We all have to stand up and fight back.

"The visual arts, including photography, are expression protected by the First Amendment. See Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 569 (1995) (recognizing that the First Amendment protects the "painting of Jackson Pollock"); Joseph Burstyn, Inc. v. Wilson, 343, U.S. 495, 501-02 (1952) (holding "that expression by means of motion pictures is included within the free speech . . . guaranty of the" First Amendment). Just as the First Amendment protects the newsgathering process in addition to the final news report, it protects both publication of visual art and the process that culminates in a piece of visual art. See Amato v. Wilentz, 753 F. Supp. 543 (D.N.J. 1990), rev'd on other grounds, 952 F.2d 742 (3d Cir. 1991) (holding that state action prohibiting the filming of a movie violated the First Amendment); cf. Gannett Satellite Info. Network, Inc. v. Berger, 894 F.2d 61, 69 (3d Cir. 1990) (holding that "[t]here is no question that" a regulation restricting the sale of newspapers burdens free expression). It is not just photographs that are protected expression, therefore, but also the act of taking a photography - the very step in the expressive process that Amtrak's actions prohibit."

I was arrested by the doors you can see through the glass in this photo as I was about to exit the platform at 12:02 PM. This photo was taken from Platform 4 looking North East towards Platform 5. I was only West of this area and there is not a single "No Trespassing" sign on that part of the platform. The signs that are on the platform are hidden from view when there are people present. They are about 4 feet off the ground so you can't see them through the people.

I decided to post the letters I've sent to Amtrak regarding the public spaces and photography policy in Pennsylvania Station New York. I urge anyone and everyone with an interest in this to write to Amtrak requesting information in writing. Always ask for it in writing. If they can't produce it quickly it means they are just making up stuff as they go along. This is unacceptable. If you need to know the policies because you want to make photos or for any other reason in Penn Station feel free to copy my letters in any way you see fit. Adapt my letters for use in other stations is also allowed.

Letter to Pennsylvania Station New York Manager Mr. Gallagher Dated December 22, 2008

Only time will tell if Mr. Gallagher will answer my letter. Of course if he doesn't it supports my claim that the public doesn't know where and when they are allowed to be in places of the station. Most people don't realize that the States have records of where all signs are placed along roadways, right down to the small 1/10 of a mile makers on the side of the road. NY City even has records of where every single "No Parking" sign is posted and what that sign says. Why would Amtrak be any different. How do they know that a worker hasn't posted a sign in a place where it doesn't belong. They have to have regulations by proper authority governing the placement of those signs and they have to have records of where all signs are located so they can be properly maintained over time.

http://www.duanek.name/Amtrak/Boardman letter.htmI also sent a letter to Mr. Boardman, President and CEO of Amtrak about my arrest for Trespassing under the New York State Penal Code, 140.05 Trespass. I asked Mr. Boardman for his help in getting Mr. Gallagher to answer my questions. Again we will see what happens.

Letter to Amtrak CEO and President Mr. Boardman Dated December 22, 2008

When you write to these people be sure to copy all the politicians you can think of. The more elected officials you copy the more likely you are to get a response. Amtrak is a corporation that is owned by all the citizens of the USA. Mr. Boardman and Mr. Gallagher work for the shareholders of Amtrak and we are all equal shareholders, remember this when they give you or refuse to give you answers to your questions. Remember at all times when dealing with Amtrak exactly who it is they work for, YOU. See bottom of page for addresses of people I CC'ed and some information on how to find addresses for your elected officials.

The rest of the photos of the injuries Officer Rusbarsky caused to my wrist are posted here.
Some updates, December 26, 2008:​

1. Here is a copy of the summons I was issued.
2. Here is a diagram of where I walked on the platform.
3. Here is my email to NJ Transit about a conductor and photos a few days before.
4. Here is the text of the email from NJ Transit saying it was ok to take photos.
5. Here is my email to Amtrak Customer Service on Dec. 22, 2008. When I called customer service in NY they referred me to Clifford Cole. Mr. Cole couldn't give me the policy in writing and decided we were going to go around in circles so he unilaterally terminated our conversation without really answering my question.
6. Email To Amtrak Customer Service on Dec. 26, 2008 which has not been replied to. I will update when I receive a reply.​

Update, December 27, 2008:​

Covered on "Photography is Not a Crime, It's a First Amendment Right"
Ditto on http://www.bannination.com/comments/5054970
Ditto on http://www.reddit.com/r/reddit.com/comments/7lvyb/amtrak_police_arrest_photographer_participating/
Ditto on http://www.subchat.com/readflat.asp?p=1&Id=725908​

When I get the video of my arrest I'll be sure to post it. Same with the arrest report.
Here are some definitions from the New York State Penal Code to help:​

140.05 Trespass. A person is guilty of trespass when he knowingly enters or remains unlawfully in or upon premises. Trespass is a violation.
§ 140.00 Criminal trespass and burglary; definitions of terms. The following definitions are applicable to this article:
1. "Premises" includes the term "building," as defined herein, and any real property.
2. "Building," in addition to its ordinary meaning, includes any structure, vehicle or watercraft used for overnight lodging of persons, or used by persons for carrying on business therein, or used as an elementary or secondary school, or an inclosed motor truck, or an inclosed motor truck trailer. Where a building consists of two or more units separately secured or occupied, each unit shall be deemed both a separate building in itself and a part of the main building.
3. "Dwelling" means a building which is usually occupied by a person lodging therein at night.
4. "Night" means the period between thirty minutes after sunset and thirty minutes before sunrise.
5. "Enter or remain unlawfully." A person "enters or remains unlawfully" in or upon premises when he is not licensed or privileged to do so. A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person. A license or privilege to enter or remain in a building which is only partly open to the public is not a license or privilege to enter or remain in that part of the building which is not open to the public. A person who enters or remains upon unimproved and apparently unused land, which is neither fenced nor otherwise enclosed in a manner designed to exclude intruders, does so with license and privilege unless notice against trespass is personally communicated to him by the owner of such land or other authorized person, or unless such notice is given by posting in a conspicuous manner. A person who enters or remains in or about a school building without written permission from someone authorized to issue such permission or without a legitimate reason which includes a relationship involving custody of or responsibility for a pupil or student enrolled in the school or without legitimate business or a purpose relating to the operation of the school does so without license and privilege.​

Here you can find the addresses to everyone I decided to CC on my letters, I had decided to send most of my messages with regular mail. Most people in political office have email of some kind. You can't always add an attachment and they might not read your web links. To find a senators address just go to www.senate.gov for your representative use www.house.gov. Most people in state governments can be found on the states web site which are normally www.abbreviation of state name.gov, for example www.nj.gov and www.ny.gov.​

Mayor Michael R. Bloomberg
City Hall
New York, NY 10007
Dear Mayor Bloomberg:
NJ Transit Corporation
Attn: Mr. Richard R. Sarles, Executive Director
One Penn Plaza East
Newark, NJ 07105-2246
Dear Mr. Sarles:
The Honorable James L. Oberstar
Chairman, House Transportation and Infrastructure Committee
2165 Rayburn House Office Building
Washington, DC 20515
Dear Representative Oberstar:
The Honorable Jon S. Corzine
Office of the Governor
Post Office Box 001
Trenton, NJ 08625
Dear Governor Corzine:
The Honorable Frank R. Lautenberg
1 Gateway Center
23rd Floor
Newark, NJ 07012
Dear Senator Lautenberg:
The Honorable Daniel K. Inouye
Chairman, US Senate Commerce, Science and Transportation
508 Dirksen Senate Office Building
Washington, DC 20510-6125
Dear Senator Inouye:
The Honorable Hillary Rodham Clinton
780 Third Ave
Suite 2601
New York, NY 11747
Dear Senator Clinton:
Amtrak
Attn: Amtrak Law Department
60 Massachusetts Ave., NE
Washington, DC 20002
Dear Sirs:
The Honorable David A. Paterson
State Capitol
Albany, NY 12224
Dear Governor Paterson:
The Honorable Charles E. Schumer
757 Third Ave
Suite 17-02
New York, NY 10017
Dear Senator Schumer:
The Honorable Mary E. Peters
Secretary, US Department Of Transportation
1200 New Jersey Ave. SE
Washington, DC 20590
Dear Secretary Peters:
The Honorable Frank Pallone, Jr.
67/69 Church St.
New Brunswick, NJ 08901
Dear Representative Pallone:
The Honorable Robert Menedez
1 Gateway Center
Suite 1100
Newark, NJ 07012
Dear Senator Menendez:
Amtrak
Attn: Clifford Cole, NY Media Relations
400 W. 31st St
New York, NY 10001
Dear Clifford:
The Honorable George W. Bush
The President of the United States
The White House
1600 Pennsylvania Ave. NW
Washington, DC 20500
Dear Mr. President:
The Honorable Jerrold Nadler
201 Varick Street, Suite 669
New York, NY 10014
Dear Representative Nadler:
Tel. 212-367-7350
​

I also sent this via e-mail to:
The Honorable Christine C. Quinn, Speaker, New York City Council
Quinn@council.nyc.ny.us
National Association of Railroad Passengers
http://www.narprail.org/cms/index.php/main/contact/

I also sent the links to these pages to Amtrak via their contact us page on the web and the below email addresses
Amtrak Customer Advisory Committee Email 'acac@amtrak.com'
Amtrak Main Media Relations Email 'mediarelations@amtrak.com'
Amtrak NYC Media Relations Email 'mediarelationsnyc@amtrak.com'​

Please remember these comments are opinion of the author, while believed by the author to be true and accurate representations of the facts they are not stated as such. They are however depictions of a real event and no names have been changed to protect anyone. They are displayed here for your information and entertainment.
Use of this material is allowed and encouraged under fair use if you are commenting about or reporting this story as long as the source is identified and linked back to. You can not copy the photographs but you can link to them in various sizes. For the print media or if you have special needs please contact me. I ask that you link to the smallest size images that suit your needs. My copyright watermark must remain visible in it's entirety on all photographs or be indicated. A link to the source photo is also required along with a link to http://www.duanek.name/amtrak/index.htm. While not required I would like an email from you telling me of the link so I can read your page and link to you also. Thanks.

 

[Yemme]

Oh boy that's what ThorHammer was talking about.

 

[rmh159]

Aside from the argument of right or wrong... I'll just throw in that I think we all read and see enough of these articles that it's worth anticipating this type of thing... especially if you're into shooting pics of infrastructure.

Side note: Wasn't there recently a rumored threat on NYC subways?

 

[impressme]

Side note: Wasn't there recently a rumored threat on NYC subways?

Around the holidays the NYPD NY Port Auth. always up the threat level on trains and subways. They seem to get some activity as far as info on threats to these forms of transportation but nothing really concrete comes from them. It's more to keep the public alert to their surroundings.

 

[stsinner]

This is why we should be racially profiling. We can't just ban all photography of anything that could be a terrorist target. That's just not freedom. A little common sense on the part of the authorities would go a long way..

 

[clarinetJWD]

I have been told misinformation regarding photography in many places involving transit...the Baltimore subway, Washington Metro (Photos allowed, but not pointing down the tunnels was what they said), Washington Union Station, New York Union Station.

A couple times I was asked to delete my photos, which I of course, refused to do. I carry around the Photographers' Bill of Rights, an explanation and summary of photographer rights taken from US law. No police officer, guard, or anyone else may force the deletion of or confiscate photographs or photography equipment without a court order.

Now, on private property, or where people may reasonably assume privacy, if you are asked to stop taking pictures, you must stop, but you can keep any ones you've already taken.

 

[Village Idiot]

And the arrested party's account said that the officer arrested him for trespassing and disobeying an order to delete the photos. If that's true, then he was arrested for disobeying and illegal order given by the law enforcement official.

There was that whole big stink in DC about Amtrak and the metro and how they had to get their policy straight. They did a pretty bad job of it, but I don't think I've heard of anyone else being harrassed at Union Station in the past couple of months.

 

[usayit]

This is why we should be racially profiling. We can't just ban all photography of anything that could be a terrorist target. That's just not freedom. A little common sense on the part of the authorities would go a long way..

Never seen "racial profiling" used to backup the words "freedom" and "common sense". :er:

Racial profiling is one of those things that, on the surface, "might" be effective but the expense of personal freedoms of a smaller group is an "absolute". It opens huge can of worms in the long run and programs the public into fearing a racial group. It is just another form of segregation... separating a group of people as "high risk" over others considered "low risk". Separation by race is never equal.

Considering that most terrorist like acts against the U.S. on U.S. soil have been committed by white, male, U.S. citizens, racial profiling would most likely not be effective. It certainly would not have picked up Timothy McVeigh (and those that helped him). It certainly would not have picked up Theodore Kaczynski (Unibomber).

Also remember that we as a nation racially singled out the American Japanese during WWII. We placed thousands of innocent U.S. citizens into internment camps against their will. That action alone became one of the America's most shameful acts against its own people. Threats from "terrorism" can come from anyone from any race...

Think about it.... The police are already profiling Photographers as potential terrorists and you are already claiming your rights are being violated. Just imagine if the police were profiling your race as a potential terrorist. Do you think the state of personal rights in the U.S. will improve? Are we going to be safer? At what point are the police driven by profiling no better than terrorists?

 

[stsinner]

To keep from violating the rules of the forum, I've responded to your post on my site if you're interested. It could quickly go astray here.

 

[usayit]

Sorry... won't spend my time on your site. If such high regard for the non-politics post, such a comment should have been relegated to the back of your mind and stayed there rather than posted here.

There is a whole lot of "I" in your post with little historical content to back your ideas. Sorry if not doing racial profiling is an inconvenience to you at the airport.

BTW... middle eastern is not a race. The area of question has a lot of people from asian, persian, arabs, even white bloodlines (too many too list). One of my fears is that we will degrade back to racial profiling of just dark skinned individuals. A state that has lead this country down a dark path in past decades. Not to mention that white individuals have bombed as well.... what about those.

A coworker of mine was held up in England for 6 weeks (in the process of immigration). He's 3rd generation english who works in the states. He was held up because he carries the last name of a Pakistani descent. Not only is he English but Pakistan is historically an ally to the U.S (as with the UK). It didn't leave him with a good impression of the country he wishes to start a new life.

 

[JerryPH]

This is why we should be racially profiling.

Wow... and that coming from someone that has an avatar of a dark skinned man in a turban.

Why don't we start with you then? How would that make you feel? Not good, I am sure.

Racial profiling is useless and a waste of time. You will find members of the caucasion race both anti and pro sympathetic to the cause of the terrorists. That is not politics, that is a simple truth.

Only the ignorant use profiling as any kind of a "proven" method to weed out true issues and problems. Heck, the last suicide bombing in the middle east was claimed on CNN as being done by a fair skinned woman!

Damn the thought of profiling makes me ill. Let's all assume that anyone with a good tan or naturally dark skin and a foreign name is a terrorist... no, thank-you, that is just wrong on so many levels.

 

[stsinner]

Wow... and that coming from someone that has an avatar of a dark skinned man in a turban.

Why don't we start with you then? How would that make you feel? Not good, I am sure.

Racial profiling is useless and a waste of time. You will find members of the caucasion race both anti and pro sympathetic to the cause of the terrorists. That is not politics, that is a simple truth.

Only the ignorant use profiling as any kind of a "proven" method to weed out true issues and problems. Heck, the last suicide bombing in the middle east was claimed on CNN as being done by a fair skinned woman!

Damn the thought of profiling makes me ill. Let's all assume that anyone with a good tan or naturally dark skin and a foreign name is a terrorist... no, thank-you, that is just wrong on so many levels.

Jerry, while I wholeheartedly disagree with your post and think you're completely wrong, I'm not going to go on here about it in order to keep the thread alive.

I think that a little common sense being employed is the answer, not blanket bans on activities.

 

[tirediron]

What the **** are railroad "police" doing with handcuffs anyway???? What's next, Mall-cops with side-arms?

 

[Kegger]

Jerry, while I wholeheartedly disagree with your post and think you're completely wrong, I'm not going to go on here about it in order to keep the thread alive.

I think that a little common sense being employed is the answer, not blanket bans on activities.

Common sense is one thing, being racist is a completely different thing.

I agree wholeheartedly with Jerry's post, I even forgive him for being Canadian.:lmao:

But I have to disagree with everything you have said here, racial profiling is a step backwards for this country. Why should we go back to saying someone is a bad person just because of how they look? That makes no sense. As a soldier, I serve right next to people from all over the world. Many who came here to get away from profiling, whether it be racial, religious, whatever. Quite a few of these people I call my closest friends and would go so far as taking a bullet for them so they can get back to their families. One of my best friends is an Iraqi interpreter, who despite being in a US Army uniform everyday, wears his beard. Most people would look at him as a terrorist. I look at him as a friend and someone who could one day save my ass.

So if you want to judge people by how they look, then you are no better than the transit cop who arrested a law abiding photographer. And I bet if you were the one who was unlawfully arrested, you'd be whining more than anyone about how you were profiled as a "terrorist" photographer.

Edit: And I read your little blog, and it sounds just like every other white hat and cape wearing douche I see throughout the KKK, I don't listen to a word they say. So why should I even take into consideration your very weak, extremely biased, culturally inept argument on why we should profile?

 

[stsinner]

Common sense is one thing, being racist is a completely different thing. As a soldier, I serve right next to people from all over the world.

Oh boy-don't try that with me. I was an active-duty soldier in the Army for 8 years, and I have many very good friends of many ethnicities and religions, in addition to a black step-son. I wouldn't have lasted 8 years in the Army if I was racist, and you know that full-well being a soldier.

Okay, so let's take the word "racial" out of it, because that word alone makes everyone lose their minds, throw common sense in the trash and react with feelings rather than with facts.

Let's say it like this-I think it would be good to look at what people look like that commit certain types of crimes the most, and when you're trying to stop those kinds of crimes, let's look for people who fit those descriptions, irrespective of race. I'll bet I'd pick the investment banker crook out of line-up 8 out of ten times.. I'll also bet I could pick the drug smuggler across our Southern border 8 times out of ten, and I could pick the person taking a picture for malicious reasons out of a line-up with similar precisions and accuracy.. I know common sense and truth are almost dead, but I'm doing my best to save them. Tell me someone committed a murder in Boston's Dorchester section, and I'd get that right in a line-up of racially diverse people, as well. Facts are stubborn things.. Stop calling it racist. It's called observance of fact and trending. Sure, I won't be right 100 percent of the time, but I'll settle for high 90 percents... There will always be those wrongfully accused-we will never stop that, but to act like you can't use trending and statistics as a tool is stupid. Our world has gotten so sick with political correctness that people are getting away with crimes for fear of offending other people who look like them who haven't done anything wrong. What I mean is-the news here in Massachusetts will report a crime with the suspect still on the loose. Let's take rape, for example.. They will actually report on the crime and say that the perpetrator is at large. What information will they give you to go on? "Male in his 30's with a baseball cap.." What's missing? Exactly.

Let me ask you this-if I immediately think, "White person!" when I hear investment banking fraud (which I would), does that mean I'm racist against my own race? Exactly.. It's called stereotyping, and stereotyping exists because of the observance of a particular behavior, trait, or act over time.. People are too quick to pull the race card today without any thought at all because it immediately puts the other person on the defensive and shuts down conversations before adequate discourse has taken place.