Texas Photographer Faces Charges Over Crash Pics

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Texas Photographer Faces Charges Over Crash Pics

Updated: 03-26-2007 04:26:03 PM

JOHN MacCORMACK

San Antonio Express-News

WHARTON,Texas-- 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."

[BIGRED1 71]

This guy was only doing his job. I think that the police are being a little hot headed about this. i know that it might hit close to home having the pics in the paper but there is nothing wrong with it, legally. they want to say he is a "public servant" but it seemed ok for him to take photographs on all the other scenes but suddenly it's a cop and then he is not allowed to take these pics and he is interfering with a murder investigation? It was a head on collision with a drunk driver, what part of the pictures were interfering with the investigation? if the pics were of a mangled body then we have something to talk about but i have a feeling that they were just exterior pics of the car. i think Sgt. Terronez just had an issue with him and took this as an opportunity to get back at him.

[RWC130 594]

I would only assume if you are taking pics of a "CRIME SCENE" the local, state, or county police might have a problem with that, No?

I am not a Photographer or Police Officer so someone with knowledge on this

feel free to type away....

[Guest]

as long as you can see it, you can shoot it...general rule of thumb w/ photojournalism in public areas...there are of course exceptions (don't know any Texas laws) but this doesn't seem like an exception

[JM15 386]

Like Blkcloud said I assume that this was a public road making it public property. SO you should be able to take pictures of anything you want legally. Ethics are a whole different ball though.

[ONLOCATION 24]

Thats also why certain Photographers don't go to certain area's for incidents......putting up with people.......Just isn't worth it half the time........Sometimes it is also Abuse of Power I have seen......Funny Part is sometimes these "Photo's" could bail these a******* out of a Jam......Same all over

[Oswegowind 17]

If anything happens in public view it is in public view!!!!! It is not as though he broke into the highway and accessed a secure area. Until crime scene tape is set up how can anyone know that it is a crime scene?????????? That is not fair...most journalists use scanners and if they can get there safely and quickly and shoot the scene than that is within their rights...If he used his id to cross a crime scene line that had been previously established than he is wrong! Otherwise the police in this matter were completely out of line by taking away a Constitutional Right!

[JM15 386]

Well said Oswego

[Guest alsfirefighter]

This is going to come down to what "capacity" he was operating under and what he is trying to say or explain what he was doing. This has been an issue before on local levels that I witnessed. I know that Dutchess County Sheriff's office asks that you withhold taking any pictures of a scene until they are done with their investigation and you ask them.

As far as the "crime scene" tape needed to let everyone know what a crime scene is. There are a lot more things that make a crime scene a crime scene. This sounds like a misunderstanding across the board on both sides.

[Guest]

they can "request" whatever you want, and like some others have said it would behoove you to do so, but you have no legal obligation to obey...I don't believe crime scene makes any difference

[FFD941 20]

Just for this reason my Camera Buffing stays in the fire ground

[xfirefighter484x 234]

Any time I am around any accident scene, I always check with the IC and any Law Enforcement on scene before any photographs are taken.

Nine times out of ten, I am told to go right ahead, just to not get in the way of anyone, but in just a few cases, I have been denied, or just asked ot wait until the investigation was under control.

[PC_420 28]

I don't know about Texas State Law, but under Federal Law and the Federal Constitution, you can't deny the press any photos they wish to take, whether you are police or not. You can politely ask for the press not to do so, but any intimidation by P.D., I would believe is a violation of law in itself.

And bottom line anyways, even if this photographer were to be convicted in trial, that conviction would surely not hold up in appeals.

[Guest alsfirefighter]

While the constitution gives us amazing rights, and it is the example document of the free world and one I swore to protect...its not as absolute as some want to make it out to be.

If he was "press" then he should have had official press credentials and should have been wearing them. There are several lawsuits and there is one on firehouse.com that was an article around a year ago I am trying to locate that had both criminal and civil implications over being taken, use and privacy. Again, I hope this comes out to a common sense solution...but apparantly he pissed in someone's wheaties.

[AFS1970 504]

I know that there have been other cases trying to figure out if freelance photogrophers were actually members of the press, I don't remember the outcomes, but I know the issue was if they were employeed by a new agency or not.

In a PIO course I took a few years ago they said even putting up tape does not truely limit the press from the scene. The only time you can keep them away is if they are in a very unsafe area or are hampering the emergency operations. As for the safety, one aspect that I had never thought of was that news employees are covered by workers comp when they are at a scene and working, so they are somewhat protected.

I know I've dealt with news media on scenes, and never had a problem. I have a friend who used to buff calls and get pictures of the rigs at scenes. I was with him one night, he heard an MVA come in and went to take pictures. He was only interested in the fire apparatus, but since one of the vehicles was a police car and the officer was injured, the police told him to leave the scene. As a buff, he just left, no need to cause problems. I think if I was taking pictures that I needed for income, I would try a little harder.