Investigation: Improper photography statute challenged - Dallas News |

Investigation: Improper photography statute challenged

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DALLAS - If you own a cell phone, you probably take pictures with it, it but did you know Texas has a law on the books that says you cannot take improper photos?  You can go to jail for it. But what exactly is improper?

The law says if you are taking pictures to arouse or gratify someone, it is illegal. Now, the Texas Court of Criminal Appeals is trying to determine if that law is even constitutional. 

Across the country, as technology continues to grow, so do the number of cases and arrests police are making involving improper photography.

Friday night football at Mesquite High School draws a big crowd.  Last October, one man in that crowd also grabbed the attention of parents and police.

“All of a sudden, an officer came around me, starting looking over his shoulder, leaning down and then he grabbed his camera and grabbed him from the shoulder and I saw him lead him out,” said the mother of a cheerleader. 

Records show police arrested Dr. James Summa for improper photography, which is a state jail felony.   The police affidavit says detectives confiscated Dr. Summa’s camera and found still pictures and videos, and the focal point of those images was on “female’s legs or buttocks region.”  It says surveillance video also shows Summa walking with some young girls “holding his left arm straight down to his side while holding the camera as still as possible.”

Police says Summa did not have any relatives or friends at the game, and lives 20 miles away.

“It made my skin crawl,” said another mother of a cheerleader.  “These are minors who have no say.  If he is taking them because he is a photographer and he wants to use them for something, then get the permission from the parents.”

Dr. Summa did not have any comment to FOX 4 about his arrest. Police turned his case over to the Dallas District Attorney’s Office in late March, but the D.A. has not taken it to the grand jury yet.

Dr. Summa’s case is not an isolated one.  In April, a man was busted at a downtown Dallas Target store for improper photography for taking pictures under the skirt of a high school student. He has not been indicted. 

But Jordan Smith admitted to officers he was on his way to “a sex addiction class” and needs “help.”  Records show Smith is currently on probation for indecent exposure.

Smith was using his cell phone, which like most phones, has a camera attached to it, making it easy to photograph and record video without anyone noticing.  As the technology has grown, so have the cases filed by police.

But all of that may change in Texas.  An appeals court in San Antonio ruled the improper photography statute unconstitutional because it is overly broad and that violates our First Amendment rights.  The case is now before the Texas Court of Criminal Appeals waiting for a final ruling.

Professor Lynne Rambo of Texas A&M University School of Law says the law has gotten very big and complicated. She adds the current law on the books really impacts too many people to the point of absurdity.

“If a celebrity walks by scantily dressed and you take a picture without authorization, you are subject to prosecution and indictment under that statute,” Rambo said. “The legislature needs to go back and amend the law to target the particular incident that the people are upset about and that can be done.”

“Right now it is illegal,” Toby Shook said.

Toby Shook is a defense attorney and not involved in either case. He sees turmoil on the horizon.

“You are going to be in that sticky situation where parents are going to want to lynch somebody,” Shook said.

 Shook says prosecutors will have their hands tied if the high court agrees with the lower court. All cases will be thrown out and cannot be refiled.

“I think you are going to have parents enraged as any parent would,” Shook said.  “Obviously they want to protect their children, but law enforcement will be prevented from prosecuting these individuals if that statute is found unconstitutional.”

Back in Mesquite, the cheerleader moms are furious and frustrated.

“It makes me feel like the law is failing me,” said one mother.  “I have a daughter. She is a minor. She is at a school function where she should be protected.”

They are hoping lawmakers are listening.

“We need someone that is going to not allow these guys or women, even, to take these pictures of these kids without their knowledge, without their permission, without their parent’s permission,” another mother said. “They are minors. They are children. We need to protect them.”

The next step for the Court of Criminal Appeals will be to hear oral arguments scheduled for May 7.  The Dallas District Attorney’s office expects to take Dr. Summa’s case to the Grand Jury in mid-May.

Massachusetts has had to tackle a similar issue after police caught a man taking photos up the skirt of a woman riding the subway. 

That state’s high court ruled it was technically not a violation of the law.  The legislature, the next day, wrote a new law making it a crime to take secret photos of a person’s intimate parts, under or around their clothing.

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