As a prize-winning freelance photographer who has shot numerous accidents and fires for the local fire department, Elmer Cavender likes to work close to the action.
“Elmer pushed the envelope. He felt the heat. If we’d have given him bunker gear, he would have been inside the (burning) buildings,” said Fire Chief Anthony Abbott.
And on Jan. 19, when Cavender’s portable radio scanner alerted him to a major accident just east of town, he quickly rolled to the scene in his old gray Buick.
But this accident would soon prove very different from the hundreds of other wrecks and fires that Cavender has covered with a peculiar zeal over the past decade.
It would lead to the loss of his film and negatives and to him being charged with a felony offense, making him the reluctant subject of a First Amendment debate.
On April 2, his 64th birthday, Cavender is set to go to trial in Wharton County on a charge of misuse of official information. He is accused of selling accident photos that were taken in his capacity as a volunteer firefighter.
“I was never a volunteer fireman. They gave me a vest that said “Fire Photographer,” a flashlight and an ID, but I wasn’t allowed to ride on any vehicle,” Cavender said.
Had the victim in the Jan. 19 accident not been a respected local police chief, it’s likely that none of the high drama would have followed.
“It didn’t take me long to get there. I had already heard on the scanner it was too late, so I knew there would not be any rescue attempt,” said Cavender, a former local sheriff’s deputy.
It was a fatal head-on collision between a police car and a pickup. After snapping a couple of dozen frames of film, Cavender said, he left the scene just as state troopers were pulling in.
Ernest Mendoza’s death — allegedly caused by a drunken driver who was charged with murder, rather than intoxication manslaughter — left feelings raw among his fellow lawmen. With some, it also seems to have aggravated old frictions with Cavender.
He said that on Jan. 21, after his accident photos had run in several area papers and he had shown them to some local police and firefighters, he was confronted by a Department of Public Safety sergeant.
“He started telling me how I’ve got every law enforcement officer in the county upset,” Cavender said of Sgt. Dan Terronez, with whom he’d butted heads with in the past. “He said, ‘I could arrest you right now for interfering with a felony murder investigation and for taking pictures of law enforcement officers on duty without their permission.”‘ “He said, ‘We need your pictures and negatives.’ My impression was that if I didn’t give them up, I was fixing to go to jail,” said Cavender, who quickly turned over the goods.
Contacted in Wharton, Terronez declined to comment.
A DPS spokesman in Austin offered only a brief remark. “The photos were surrendered voluntarily,” said Tom Vinger, who declined to say if that came after any implicit or explicit threat of arrest.
DPS has refused to return the photos to the editor of the Wharton Journal-Spectator, who says they belong to him. “I buy the film. I pay for the development. I own the photos,” said Ron Sanders, who defended Cavender’s conduct and scoffed at the notion that he is a public official. “Remember ‘Animal Farm’? We’re all equal, but some are more equal than others. The deceased was a police officer, so things change.”
The loss of the photos was just the beginning of Cavender’s troubles.
In early February, he was indicted on a third-degree felony charge for selling the accident pictures for $50 to the Houston Chronicle and the Victoria Advocate. The only grand jury witness listed is Terronez.
Wharton city officials and Abbott, the fire chief, say Cavender was never a volunteer fireman and that his role was honorary. Since the accident, the department has severed ties with him.
“He was dismissed because I was getting heat from the DPS and all local law enforcement. They felt he got in the way,” said Abbott, who said he was also unhappy Cavender had displayed the sensitive photos in public.
Wharton County District Attorney Josh McCown could not be reached for comment. His assistant, Becky Ivy, said the case is ready to go to trial. “We took it to the grand jury, and that’s what they indicted on. We stand behind the evidence we have that he is a public servant,” Ivy said.
But Cavender’s lawyer said the case is flawed. “If he’s not a volunteer fireman, how could he be acting in an official capacity? I don’t think any jury would find him to be a public servant,” said Richard Manske of nearby El Campo. He said the district attorney has already put out feelers about resolving the case with a misdemeanor plea, but Cavender says he will not plead to anything. Manske said, “I think they’ll drop the charge.”
Meanwhile, First Amendment watchdogs and freelance photographers in Texas are viewing the case with incredulity.
“It’s unbelievable. I’ve never seen anything quite as bogus in my life,” said Joel White, former president of the Freedom of Information Foundation in Austin. “He’s a journalist. He’s not out there as a firefighter. Confiscating his film was blatantly unconstitutional,” he said.
In San Antonio, Alicia Wagner Calzada, past president of the National Press Photographers Association, said the case will get national attention if it goes to trial. She said it already serves as a clear warning against photographers getting too closely affiliated with police and fire departments. “There’s a reason we avoid conflicts of interest. In this case it’s come back to haunt him,” said Calzada, who includes the San Antonio Express-News among her clients. “The saddest thing is that they have indicted a photographer for doing his job.”
In Wharton, some feel Cavender is being bullied because he is a freelancer with few resources. “I think they’re just beating up on a guy who they didn’t feel could fight back,” said Nat Galloway, 62, a longtime friend.
Cavender, who says he shoots photographs as a community service and barely makes ends meet between that and his part-time convenience store job, has no plans to change his style. “It hasn’t slowed me down. There’s been a couple of accidents since then where I got out there and got the pictures real quick, just to avoid a confrontation with the DPS sergeant,” he said. “I’ve never disobeyed a police order. I know how to take pictures of an accident scene, and I know what not to do. And if there’s action at the scene, that’s what the public wants to see.”
Source: San Antonio Express-News via http://laintercept.wordpress.com/
Stringer charged with taking and selling pictures - felony
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SkipSanders
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Read that a month or so ago.. Very interesting and the prosecution has their work cut out for them I imagine. Since it's getting so much publicity, someone big will jump in and defend him.
Absent the fact that he had some relationship with the department, it's a clear cut "freedom of the press thing" "shot from public" and he would stand to make bank in civil court for the loss of his images.
But we don't really know in what capacity he was acting. However, assuming he would be considered an employee at the time he shot the pictures would depend on if he was on duty or off duty. What he does in his free time to make money is not any concern of that department. Since, as the article states he claims, was not an employee/volunteer at all, he most certainly would not have been on duty/called out to perform official duties (take the pictures that he sold) and they would have a failing case. None the less, a very interesting situation...
There was a similar case in San Diego. PSA 187's crash on Nile St in North Park in the 80's was very similar. The photographer was, I believe, an employee of Weights and Measures and at the time, on duty and doing a pump inspection at a gas station when he shot the now famous shot of PSA187 and the Cessna moments after they collided. He used a camera belonging to the county. By the time the case was resolved, nearly 100,000 in royalties for that picture were on the line. County was asserting that the picture was "work product" whereas he claimed it was his. The matter was resolved, he got something, but not most of it if memory serves me correctly because he was in fact, on the job and recent "work product" cases generally side with the employer.
Luckily, California has the most media friendly laws in the country. We have access granted by the PC that many states do not offer. I have no idea about Texas.
Absent the fact that he had some relationship with the department, it's a clear cut "freedom of the press thing" "shot from public" and he would stand to make bank in civil court for the loss of his images.
But we don't really know in what capacity he was acting. However, assuming he would be considered an employee at the time he shot the pictures would depend on if he was on duty or off duty. What he does in his free time to make money is not any concern of that department. Since, as the article states he claims, was not an employee/volunteer at all, he most certainly would not have been on duty/called out to perform official duties (take the pictures that he sold) and they would have a failing case. None the less, a very interesting situation...
There was a similar case in San Diego. PSA 187's crash on Nile St in North Park in the 80's was very similar. The photographer was, I believe, an employee of Weights and Measures and at the time, on duty and doing a pump inspection at a gas station when he shot the now famous shot of PSA187 and the Cessna moments after they collided. He used a camera belonging to the county. By the time the case was resolved, nearly 100,000 in royalties for that picture were on the line. County was asserting that the picture was "work product" whereas he claimed it was his. The matter was resolved, he got something, but not most of it if memory serves me correctly because he was in fact, on the job and recent "work product" cases generally side with the employer.
Luckily, California has the most media friendly laws in the country. We have access granted by the PC that many states do not offer. I have no idea about Texas.