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New Jersey Enacts Cathy’s Law Criminalizing Photo Taking at Emergency Scenes

The State of New Jersey has finally pulled the trigger on Cathy’s Law, joining the state of Connecticut by formally criminalizing the (a) taking or (b) dissemination of emergency scene photos depicting a patient by emergency responders.

Cathy’s Law was named in honor of Cathy Bates of Ocean County, who was fatally injured on October 23, 2009. As she lay dying in her vehicle a volunteer firefighter snapped a photo of her and posted it to Facebook long before her family was notified she had been involved in the crash. Riding the public outrage following the revelation of what occurred, Cathy’s mother, Lucille Bates-Wickward, mounted a grass-roots lobbying campaign intended to help prevent future lapses in judgment by responders.

Governor Chris Christie signed the bill into law yesterday, and it became effective upon signing. New Jersey joins Connecticut who passed a similar law that became effective on October 1, 2011. The Connecticut law imposes a $2,000 fine and 6 months in jail for responders who violate it.

As originally introduced several years ago, Cathy’s Law would have imposed a $10,000 fine and up to 18 months in jail. As enacted the law makes it illegal to take a photo/video depicting the victim “except in accordance with applicable rules, regulations, or operating procedures of the agency employing the first responder”; or to disclose (ie. disseminate, copy, post, forward or share) such a photo/video without the patient’s prior written consent.

Violation of Cathy’s law is by statute deemed to be a “disorderly conduct offense”, and triggers civil liability of the responder to the victim or victim’s family in the amount of $1,000 per photo, plus attorneys fees along with the possibility of punitive damages. Here is a copy of the statute. Cathys Law

I cannot help but feel a sense of failure at the passage of laws such as Cathy’s Law. Had fire service leaders (myself included) had the courage and foresight to address the challenge of emergency scene photo taking through clear policies and proper training of personnel, such a law would be unnecessary. In the memorable words of one of my former officers “Kid, we either keep our own house clean, or someone’s gonna come in here and clean it for us”. His next sentence is also worth considering: “And we’re probably not gonna like the way they clean it”. It is a predictable and therefore preventable problem.

In the mean time, if you are in New Jersey or Connecticut and your department does not have a digital imagery policy that allows you to take photos or video: turn off your helmet cam, turn off your dash cam, and keep your camera or cellphone in your pocket… and don’t be posting photos taken by others!

More on the story.

Comments - Add Yours

  • glenn usdin

    fallacy of this law is that it is directed at first responders, while the general public (rightly so) including the news media, can shoot whatever is in plain view. so it is illegal to shoot pics of a patient if you are a firefighter, but the citizen or news photographer can shoot anything they can see. that does not seem like a fair law.

    • http://firelawblog.com Curt Varone

      Glenn

      Good point. However, I’d ask you to consider this analogy: compare a person sitting in a doctor’s office waiting room (let’s say its a psychiatrist’s office or a VD clinic) versus a receptionist who works for the doctor. They both observe you go in. One is under an ethical duty to you not to disclose the fact that you are there, and the other is not.

      Are you suggesting the receptionist should be free to post on Facebook that you visited the doctor? Or that we need a law to make it illegal for the person in the waiting room to tell anyone?

      It is the same distinction that Cathy’s Law makes.

  • http://firehousezen.com Mick Mayers

    I have taken a number of emergency scene photos for varying uses in training but save the ones shot in training for posting. In any case, however, I have taken a lot of precautions to blur any pictures of victims, license plates, or distinguishing features, as well as not using the material in a timeframe near to the incident (so even if something like a street sign was visible, a reader would not necessarily associate the picture with a certain incident).

    While there is a lot of merit in using some of the photography to illustrate the conditions we work in, the challenges we face, or simply to point out the job our people do for the community, there are a number of individuals who get some sick thrill out of associating with a tragic scene – and these are the types of people who probably shouldn’t be on the job to begin with.

    I like your quote about “cleaning house”, by the way. That actually can fit to any number of ethical challenges we face in the fire service today.

  • john murphy

    Curt, as your former officer stated about “keeping the house clean” is right-on as we don’t like someone else doing it for us. There will continue to be violations of an individual’s right to privacy and as long as the individuals in fire and EMS continue to take those pictures and post them. There are equally as many family members and legislators willing to shut that practice down. Let’s clean our own housewith strong and enforcable policies

  • Ray Kemp

    Curt, your analogy of the receptionist and doctor doesn’t quite work. For one, the receptionist would be mandated to comply with HIPAA and therefore unable to disclose such facts about any patients since most doctor’s offices are considered “covered entities” under the HHS ruling.

    This Cathy’s law seems to me to setup a double standard. Take an accident scene whereby patients are being treated in the open around the accident site. Bystanders along with the media are free to photograph the scene and for the most part publish the photos without any legal recourse since this were taken where an reasonable expectation of privacy does not exist as upheld in numerous courts, including the Supreme Court. And yet, a first responder does not have the same right the courts have upheld for others?

    Don’t get me wrong, I understand the reason for the law, but wouldn’t you agree this law sets up legal challenges? How can they pass such a law when the courts have long upheld the taking of and publishing photographs when a reasonable expectation of privacy does not exist legal?

    • http://firelawblog.com Curt Varone

      Ray

      Sorry for the misunderstanding. I know these are subtle distinctions. Cathy’s Law plays the same role as HIPAA in my analogy.

      The point is that when we respond to incidents – we are not the public. The fact that a person standing next to us can do something (like take a drink of alcohol) – and maybe even has a Constitutional right to do so – does not mean it is OK for us to do it.

      This gets even more complicated when we factor in the reality that photos taken by on duty personnel will constitute a public record in most states and in many cases will constitute evidence – both of which trigger a legal requirement that we preserve the images we take. A member of the public is not under such a requirement.

  • Ray Kemp

    Thanks Curt for taking time to respond. HIPAA does not prohibit photography, only the publication of the photography should the patient not be “de-indentified” as spelled out in the ruling or if the patient has not signed a release authorizing the use of their likeness. In the Cathy law, the taking of the photo is prohibited unless the service has a policy in place for such photography. Furthermore, the service cannot publish the photos unless there is signed authorization from the patient or next of kin. The Cathy law doesn’t even provide for “de-identification” of the patient has HIPAA does allow.

    If we want to go on the premise this law plays the same role as HIPAA, then why have the law at all? Drinking alcohol I don’t feel is a good comparison either. Clearly a responder drinking alcohol on the scene could jeopardize patient care and safety. The Cathy law was designed for patient/victim privacy. So, the first responder can’t take the photo, but the bystanders, media, etc. can legally take the photo and publish the photo without running afoul of the law. Did this law really protect anything or just in the end make a bigger mess?

    As with HIPAA hysteria, I can see the same for the Cathy law. I envision first responders erroneously going after the media under the spell of the Cathy law thinking they too (the media) are breaking the law.

    The bottom line I’m asking here is since the courts including the Supreme Court have deemed photography in open public spaces where there is no reasonable expectation of privacy, how can New Jersey and Connecticut put laws on their books that clearly contradict these court rulings? Did law makers respond more out of passion for the law without really looking into privacy law already upheld by courts?

    • http://firelawblog.com Curt Varone

      Ray

      All good points, but I am not sure you are following my analogy.

      The difference is (and you can accept this or not – but if you don’t then you will not appreciate the distinction that the law recognizes) when a firefighter responds to an emergency he/she is not like a member of the public.

      Just like the receptionist in the doctors office – there are certain obligations that attach to being in a certain role.

      A citizen can put a political bumper sticker on their vehicle… does that mean a firefighter should be able to put one on his fire truck? There is a difference.

      A citizen can wear an offensive t-shirt, or political pin that supports this candidate or that candidate – they have a First Amendment right to do so – but an on-duty firefighter does not have such a right. Its the same when it comes to taking a photo.

      The Constitutional Right to take photos in public places does not require an employer (whether McDonalds, or USAirways or a fire department) to allow its employees to take time out of their daily activities and take photos. Employers may restrict what their employees do while on duty – and may be under a legal obligation in some cases to do so.

      Also – keep in mind – Cathy’s Law does not prohibit photo taking! It just says that responders have to comply with their agencies policy on photo taking. I am in favor of firefighters taking photos at scenes – and hope fire departments will take a progressive approach by adopting policies that allow photo taking – but manage it so as not to hurt people in the process.

      Lastly – do you understand the implications associated with a photo being a public record? A firefighter who takes a fire scene photo is under a legal obligation to preserve and maintain the photo in case a member of the public wishes to see it or obtain a copy of it. Think that through…

      There are some states that make it a criminal offense to destroy (ie delete) a public record. In most states it is a finable offense. The firefighter who takes the photo and the fire department share the responsibility to responsibly manage that photo for the duration of the required “retention period”.

      Citizens – are not subject to the same requirement.

      • kevin pickar

        WE are held to a higher ethical and moral standard and should act as such. That is what the public expects from us. As a fire investigator i know anything at any scene is evidence and can be subject to discovery, even notes and photos.  We need to be performing at the highest standards and not act like a uneducated goof.  I do feel the fire service does not teach this and we can no longer assume new personnel have the high moral background required to do the job and be trustworthy.  If you disagree please consider leaving the fire service now.

  • Pingback: Time To Clean Up | Firehouse Zen()

  • Legeros

    Splendid discussion, gentlemen. Keep it coming. These conversations are crucial, I think, to help people understand the many heads of this Hydra.

  • Ray Kemp

    Hi Curt,

    From what I see in section 1, paragraph b of the Act it does state the taking of photography is forbidden unless otherwise sanctioned as a part of policy by the first responders agency. So, this is clearly forbidding photography unless certain conditions are present under penalty of law, not penalty of an organization’s policy.

    You’ve brought out the comparison of a political statement via a shirt or pin and that a firefighter does not have the right to do so as a citizen can. But what the firefighter is violating by wearing a political shirt or pin is the department’s policy not the law. See where I’m going with this?

    The Cathy’s law has nothing to do with a department’s policy. It is a law that clearly has singled out a group of people, in this case first responder. And has mandated that unless certain conditions exist they cannot take the photos, and two, if they can take the photo, a signed release is required. This is a law, not policy!

    It is a law that butts right against what courts as well as the Supreme Court have upheld anyone with a camera in this country can do. And nowhere did the courts provide provisions to single out a group of people. The only illegal act of taking a photograph that I know of (now I said taking a photo, not publishing )is child pornography.

    This needs to be left to Fire and EMS services to develop their own policies that govern scene photography. If this law is allowed to stay in force without a legal challenge, then where do law makers stop their selective process as to who can and take photos on a public scene and who can’t? Perhaps the media next?

    I fully support that scene photography needs to be strictly policed by Fire and EMS services. I’ve certainly lectured and written several articles on the topic over the past few years. But this is a law that needs to be challenged. Even when HIPAA was drafted, anything to do with photography within the ruling was kept in line with common privacy tort laws as defined in the Second Restatement of Torts.

    • http://firelawblog.com Curt Varone

      Ray

      I guess I am not seeing what you see. That’s OK. It’s what makes the world go round!

      A firefighter could be prohibited from wearing a political button on his uniform by a FD policy – but he could also be prohibited from doing so by a state law or a local ordinance. Regardless – such restrictions are lawful (whether imposed by law or FD policy) because as the SCOTUS as repeatedly said – 1st Amendment protections apply to private speech, not when a public employee seeks to use his/her position/uniform to espouse personal opinions.

      In the spirit of seeing attorneys fully employed – I support the idea that the law be challenged – but I wouldn’t take it on a contingency fee. IMHO on-duty firefighters do not have a 1st Amendment right to take photographs while on duty, any more than a receptionist in a doctor’s office has a First Amendment Right to post who visited the doctor on Facebook (ie she cannot complain that HIPAA somehow violates her 1st Amendment rights to post); or that a firefighter can wear a t-shirt with a swastika in place of his uniform shirt…

      Having said that – laws that are unreasonably overbroad can violate the 1st Amendment. Eg – a law that prohibits people who work in a doctor’s office from posting anything job related on Facebook would be a 1st Amendment violation. So would a law that prohibits a firefighter from wearing the symbol of hatred and oppression of his choosing while off duty.

      If a law were to go to the next step (seek to limit the photo taking of the public) – then there clearly would be a 1st Amendment violation (ie. I’d take that case).

      And just to throw a little gasoline on the fire: if a firefighter has a 1st Amendment Right to take photos at fire scenes while on duty (absolute Constitutional Right), and neither the state (through Cathy’s law) nor his employer can restrict that right… then a firefighter would theoretically have a Constitutional right to stand outside a building and take pictures rather than attack the fire… seriously?

      I don’t think so. But I’ve been wrong before.

      • Mike

        A FF has the right to call his superior an SOB. The dept then has plenty cause to terminate that FF.
        the 1st amendment grants people the right to be stupid. It further grants the right to show everyone within ear shot that you are stupid. That right does not prevent you from facing discipline for violation of dept policy.

        This did not, does not, and will not need to be a law. If a FF takes a picture when they should be performing their duty, then there is a policy that can be applied. The FF gets to enjoy his rights with a loss of pay, or loss of employment.

        • http://firelawblog.com Curt Varone

          Well Mike, following that logic a firefighter has a “right” to rob a bank or commit murder… provided he is willing to accept the penalty. To me – that is not a “right”.

          A right is something you are entitled to do without penalty imposed by the government… and when you work for the government – your employer has to respect your rights.

          • Mike

            I will have to reread the constitution to find where commiting crimes are protected. What you or i “think” is immaterial. The fact remains that while a ems or fire employee should be doing their job and not taking pictures. The taking of pictures should in no way be considered a crime. It is a violation of policy with sufficient Measures to correct. Excuse the format from the Iphone.

          • http://firelawblog.com Curt Varone

            Mike

            I’m not sure if you misread my post – or if you are trying to make a different point – but my comment has nothing to do with the US Constitution – it’s about the logic of saying a firefighter has a “right” to call his boss an SOB.

            Let’s try it this way: a “right” means you have a “protectable right” to do something. If you do something but can be punished for it – you really don’t have a “right” to do it.

            Any clearer?

            The problem with your logic is that if someone can have a “right” to do something but can still be punished – then anyone could claim a “right” to do anything. That was my point. It’s not about what the Constitution provides or does not provide. It is about logic.

            If you call your boss an SOB and can be disciplined… you did not have a “right” to do it… because it is not protectable.

            Now – having said all that – a firefighter MIGHT have a real First Amendment right (a protectable right) to call his boss an SOB under certain circumstances… and if it turns out he has such a First Amendment right to do so – his boss cannot discipline him.

            But his boss may still be pissed off!!!

  • Andrew Allen

    I agree with this law, why? BLUF – I am not going to be hauled in front of a judge because my department faces a lawsuit over something like this! We are at emergencies to help, then and down the road. Post a photo as this VFD FF did, hurt the family after the accident.
    This FC gets it – Message received – Put a policy in place and enforce it!

  • Former FF / photographer

    As a former member of the NYC media for 16 years and a former NYC firefighter, I am well qualified to comment and JUDGE the law. First of all, as a member of emergency services your DUTY and your JOB is to render just that…EMERGENCY SERVICES to those that need it. It is NOT to take photos, as tempting as it may be, knowing that you can make youself some extra money selling the pix to the media. Your job is to help those who need it for which you get paid. The medias job is to photograph the incident for which they get paid. THEN we run into the credentials/access part of the discussion. The media is usually kept back far enough so as to PREVENT them from photographing anything. If an OFF DUTY emergency responder shows up with a camera and flashes credentials he gains access. The BOTTOM LINE is….emergency personel should stick to rendering emergency services and the media should take pictures. That is what each gets paid for. As for the MORON who caused this law to be enacted…..well you finish the sentence.

    • Ed Mello

      Former FF/photographer got it right. Our duty is to help people – period. If a firefighter at an emergency scene has time to take pictures there is no need for him to be on the scene at all. Publishing photos of a person may violate the Privacy Act, and in most places there are also laws which prohibit publishing a photo of a person without first have the person sign a photo release.

  • http://emtmedicalstudent.wordpress.com/ Joe Paczkowski

    $1000/photo is rather cheap. The California Highway Patrol settled in January of this year to the tune of $2.37 million because of the Nikki Catsouras case, and that was a case where the broad concept of ‘invasion of privacy’ was the cause for action, not something specific like HIPAA (after all, the CHP isn’t a “covered entity” under HIPAA).

    • http://firelawblog.com Curt Varone

      Hi Joe

      That is a great case… I use if when I teach cops. They call it the Porshe-Girl case.

  • Anonymous

    Hmm…I was curious as to the language of who specifically is covered, so I looked up the text of the bill.

    It states that it covers “A first responder who is dispatched to or is otherwise present at the scene of a motor vehicle accident or other emergency situation, for the purpose of providing medical care or other assistance”.

    Since it is vague on “otherwise present”, and “other assistance”, it would seem to me that if you are off duty and do nothing more than roll up on a wreck, even if all you do is call 911 and don’t approach the scene this language might still treat you differently than another bystander. Alternatively, what if you initially provided aid, then stood back behind the perimeter once dispatched units arrived? Curt?

    • http://firelawblog.com Curt Varone

      Anonymous

      It is hard to predict what a court will say in a given case – but it seems to me that the intent is to cover a police officer, firefighter or medic who (for what ever reason) ends up at a scene and provides “assistance”… versus a police officer, firefighter or medic who is simply there as a citizen and not assisting.

      It is indeed a thin line… and the language would seem to be a bit vague in several respects: would an off duty firefighter who arrives on scene (happens to be driving by) and helps direct traffic momentarily until police arrive be suject to the law – or would he have a defense because he did not arrive there “for the purpose of” providing assistance.

      Then – if he has such a defense – what if he actually treated the patient… would the defense still apply… because he did not arrive there “for the purpose of” providing assistance… he just treated the patient after he got there.

      Also as you suggest – what is providing “other assistance”… would it include calling 911? Probably not because you would not respond to the scene for the purpose of calling 911… although you could concoct a scenario that would make it a much harder case…

      The other point: if you provide assistance such as traffic control and then step back once the on-duty personnel arrive, can you then take photos…??? The only thing that is clear is there’s lots of fodder for the Firehouse lawyers!!!!!

  • Legeros

    What sort of on scene behavioral changes do you foresee, notably with law enforcement? Will officers become camera police, extra vigilant against any firefighter or paramedic who snaps an errant photo? (Best hide your colors, if you’re off duty! ) Or is this law intended more as a deterrent, and a means to penalize those who use scene photos in inappropriate ways?

    • http://firelawblog.com Curt Varone

      Mike

      Great questions. I suppose it is possible that some officers will try to “enforce the law” – but the bottom line is it would be very difficult for the police to do too much at scenes as the photo taking is occuring.

      The bigger enforcement issue will come after the incident when someone complains AND the fire department does not have a policy. The police may find themselves under pressure from the public to do something and they will do what they have to do.

      Behavioral changes??? I would hope the law will prompt some fire chiefs would move off the start line and develop a digital imagery policy. That would be one nice behavioral change!!!! As for the average firefighter… the blissfully oblivious will likely remain so; the nervously obsessive will remain nervous despite a well written policy; and the rest of us will somehow get by.

      Hopefully the law will do what fire service leaders have thus far been unable to do: get people to exercise better judgment.

  • ff26

    I would like some clarification…I’m aware that the law states that pictures of victims are not to be taken (we are supposed to be treating them anyway!!!), but are you still allowed to take pictures of vehicles/buildings?
    It seems to me that people are lumping people and property into the same category.
    From what I understand, pictures of vehicles/buildings/property are allowed as long as there are no distinguishable features, such as license plate or address. Also, is it really that hard to edit a picture by blurring/blacking out a vitctim or distinguishable property feature?

    • http://firelawblog.com Curt Varone

      FF26

      Cathy’s law applies to photos of victims. It does not apply to property or other objects.

      However – it’s no reason to celebrate. Public employees who take photos at emergency scenes may inadvertantly find themselves subject to public records laws… not to mention possible evidentiary considerations.

      Lastly – the law prohobits taking the photo unless authorized by the department’s policy. It makes no exception for taking a photo, and blurring out a patient’s face afterwards.

  • RJ

    Curt; this seems like the kind of law that can be twisted to suit a given case. (i have not read the text) but based on what others have commented on, it seems that if you are an emergency responder you cant take pictures of your victims and send them to others-understood

    but here’s a question, what about a responder from another state? say i’m passing the scene and take a picture and publish it in my home state. Can i be extradited back to Jersey to stand trial because i took it in jersey then publish it out of state? i ask because (using the NY metro area as an example) if i live in NY and firebuff in jersey and happen to be a responder {say i’m licensed in NY as an EMT}–i know i’ve violated NJ law but can i be arrested in NY and extridated to NJ if i put it on my site when i am a resident of NY?

    i live in florida but i buff when i go out of state. if i end up i NJ i dont want to become a resident for X amount of years

    • http://firelawblog.com Curt Varone

      RJ

      You should probably read the law. It should clarify the issues you have.

  • ff26

    RJ,

    I might be wrong, but if you buff then you are technically a private citizen or part of the press. Just because you are an EMT, it doesnt mean you have to treat a patient. The way I interpretted it, if you pager does not go off then you are not assigned to that call. Therefore, you are a private citizen taking pictures…But I may not be 100% correct. this is just the way I interpretted it

  • ff26

    I just re-read the actual law and noticed that in lines 31-33 (part.C), it states that pictures may be taken for public safety use. Is it safe to assume that training is included in this?

  • Legeros

    Firehouse.com has an interesting take on this story. Their headline and article both focus on the prohibition on “posting photos,” which, I guess, is the true intent of the law. The problem is not the taking of photos, but the inappropriate sharing.

    http://www.firehouse.com/news/10758824/nj-responders-banned-from-posting-victims-photos

    • http://firelawblog.com Curt Varone

      Mike

      I think they realize that part of the solution to the posting problem is controlling the taking. They also realize if the law only prohibits posting photos you take at a scene – then when FF A takes a photo and FF B posts it – both may escape trouble if FF B was not at the scene…. The problem needs to be addressed at both ends… taking and distributing.

  • Legeros

    Such an interesting issue. And now some firefighters named Al and Bill are wondering why you are talking about them…