Rockford photojournalist acquitted after arrest during 2020 protests

Editor’s note: Kevin Haas, the author of this article, was subpoena’d to appear on the witness stand during this trial because of his role in hiring Albert Riley Jr. as a freelance photographer. This article includes his perspective from the stand.

By Kevin Haas
Rock River Current
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ROCKFORD — Albert Riley Jr. was placing his 10-month old son in his stroller at the county courthouse when he was approached by a face that had struck fear in him moments earlier.

The photojournalist had just been acquitted of aggravated battery in a public way and resisting arrest, both stemming from photographing protests in fall 2020. The juror approaching him was a man he had been sure was against him.

But the stern look that Riley saw in the jury box was replaced with empathy now, as he told him “you were just doing your job,” Riley said.

Then another juror approached him. And another.

“They came in a line. All 12,” Riley said. “It was overwhelming.”

“They all came up and said, ‘I’m sorry you went through this.’ They all shook my hand and said, ‘You should’ve never went through this.”

Riley, a 35-year-old freelance photojournalist who was working on his own accord, was accused of shoving an off-duty and plain-clothed officer around the neck and knocking her to the ground. Then police said he resisted arrest. He countered that he was trying to protect his camera after the officer reached for it, and was trying to keep it from smashing against the ground when police tackled him from behind.

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The jury saw it his way and found him not guilty on both counts Thursday at the conclusion of a four-day trial that had been prolonged for 17 months.

The interaction with the jurors in the lobby of the Criminal Justice Center was the culmination of an emotional week for Riley.

“It was a powerful moment,” said Melinda Jacobson, one of Riley’s attorneys with DeRango & Cain. “There were more than one juror with tears in his eyes when they got to shake his hand.”

Riley was one of dozens of people arrested during protests over summer and fall 2020. While the case ultimately boiled down to whether he battered the off-duty officer, his role as a photojournalist evoked attention to First Amendment issues months before it ever went to trial.

Days after his arrest, a candidate for Winnebago County state’s attorney who said he was supporting the role journalists play in our community was fired for contributing $25 toward a GoFundMe for Riley after his arrest.

“I believe in the importance of journalists covering these important events in our community,” Paul Carpenter, a Democratic candidate for the office, told the Register Star after he was fired by State’s Attorney Marilyn Hite Ross. “I did not violate any law or any policy of the state’s attorney’s office.”

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Carpenter ultimately lost the election to Winnebago County State’s Attorney J. Hanley, who watched over Riley’s trial last week.

If he had been convicted, Riley said he likely would have no longer been able to work as a freelance photographer for news organizations because he would be barred from events involving schools or children.

“I think they saw Mr. Riley was treated very unfairly, and it was a bit overwhelming for them to see his reaction when justice was served and his relief,” Jacobson said of jurors.

Hanley, while not discussing specifics of the case, said his office respects the jury’s decision.

The accusations

Rockford police officers Aaron Ruffolo and Robert Weist were on assignment patrolling protests on Sept. 25, 2020, when they saw Riley use his right hand to push around the neck of off-duty Winnebago County Sheriff’s Detective Crystal Smoot, causing her to fall to the sidewalk, according to the criminal complaint filed against Riley.

When the officers approached him to arrest him, they said he tensed his muscles and refused to put his arms behind his back.

“Albert refused to place his hands behind his back, pulling them toward the front of his body. Officer Ruffolo and I took Albert to the ground where he continued to tense his muscles and pull his hands away from us and over his head while he held his camera,” the complaint reads.

Riley was arrested and taken to the Winnebago County Jail, where he spent a little more than two days before posting bond.

Riley, who was not on assignment for the Register Star at the time, was shooting photos as a citizen journalist during the weekly protests that took place outside of Rockford City Market in 2020.

“There wasn’t anything specific that I was taking pictures of: I took pictures of police, I took pictures of protesters, I took picture of counter-protesters, I took pictures of the ministers on the corner singing and playing guitars, I took pictures of the marches as they were going through the crosswalk,” he said. “But I was only out there for 45 minutes before I got arrested.”

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The incident happened on Madison Street, where Riley said he saw an off-duty officer throw a water bottle at a protester, who later threw it back at the officer with it landing near his wife, Smoot.

Riley said he took pictures of the protester who threw the bottle while that man was getting arrested and captured images of Smoot and her family.

That made her come toward him, saying “you’re going to delete that picture out of your camera,” he said. Instead, he said he raised the camera to his face to take another picture of her “and she slaps my hand and the camera,” he said. He said he reacted to defend himself and the camera when she fell back.

“Was it my intention for her to fall back and hit the ground? No it was not. I just wanted her out of my personal space,” he said. “I didn’t want to be attacked again.”

Her husband, Deputy Brent Phillips, then pushed him in the back, Riley said. When he faced Phillips, Riley said officers grabbed him from behind and brought him to the ground.

“I didn’t know they were cops until I was slammed to the ground because they came from behind,” he said.

“They’re punching me. They’re kicking me,” he said. “I didn’t fight with them, I was just attacked by them.”

Riley suffered a black eye, bruised cheek and the side of his nose was bleeding, he said. His glasses were also broken, his phone screen was broken and after his arrest he said images were deleted off the memory card of his camera without his knowledge or consent.

“They never gave an explanation,” Jacobson, Riley’s attorney, said of the deleted images. “The only photographs that were deleted contained images of the state’s witnesses.”

My testimony and the First Amendment

For the most part, First Amendment issues were not a part of the trial despite attempts by Riley’s defense to include it in the conversation. When jury selection began Feb. 14, the defense was stricken from asking potential jurors about the First Amendment or constitutional rights.

A comment about the First Amendment later made by a witness was also objected to by the prosecution, and that objection was upheld by Judge Joe McGraw.

This is where I come into the story. I was that witness.

Before I go further, a quick acknowledgement: It is rare for me to write from a first-person perspective in a news story, and combining news and personal experience in one article is generally not done. In a larger newsroom a court reporter would have covered this trial and a columnist may have opined about the result. Here I’m playing both roles in a way, but I’m doing so because I thought what I learned from the witness stand was enlightening and worth sharing with you. I’ve also included a disclosure at the top of the story so you can take any inherent bias I have from hiring Riley as a freelancer during my previous role at the Register Star into consideration as you read this story.

Back to the case at hand: I was issued a subpoena to appear as one of the defense’s four witnesses because at the Register Star, where I spent 20 years before helping start the Rock River Current, I often hired Riley and other freelancers.

My testimony was intended to establish that Riley was a working journalist, even though he was not hired by the Register Star for coverage that day. I was asked about the hiring process, whether I could identify some of Riley’s work and if photojournalists ever shoot for themselves while not under contract by a news organization – they do. But it was my answer to a question about credentials that drew the ire of the prosecution.

I testified that some news organizations will create press identification for their reporters, although we had not done so for freelance workers. I provided some context about I.D. that may be needed to get into private events or activities that would require tickets, such as a Rockford IceHogs game. But during my answer I said that no such credentials were needed to shoot photos in a public place because anyone – journalist or not – has the First Amendment right to do so.

Prosecutor Seth Wiggins objected and it was sustained by McGraw on the grounds that I offered a legal opinion, meaning jurors were not supposed to take my comment into account.

The objection surprised me. I thought saying photographing in a public place was covered by the First Amendment was the same as saying you’re not allowed to speed or murder – that it was a statement of fact rather than opinion. Was the court really suggesting that what I said was not fact?

So after the trial I turned to a couple experts to get perspective on what I experienced.

“Yes, that is a legal opinion. You’re opining on the meaning of the First Amendment,” Dan McConkie Jr., an associate professor of law at Northern Illinois University, told me last week. “It’s an opinion that most everybody shares and agrees with.”

McConkie said he understood why the judge would sustain the objection, because the defense was likely trying to establish that this was a case of Riley practicing his First Amendment rights and being unjustly arrested.

“The judge might have taken that to be a little unduly slanted to the side of the defense, because that’s really the argument the defense is trying to make to the jury, and it’s not strictly a fact that the witness observed,” McConkie said.

Witnesses are supposed to only answer questions they’re asked about what they’ve seen or experienced. So my comment, while an accurate recitation of First Amendment law, was out of line in the scope of the trial.

The rise of more citizen journalists, and activists with phones and cameras, can make police officers work even more challenging because it is difficult to tell who is who. An activist, for example, could be antagonizing an officer one moment and taking photos the next.

But McConkie, who teaches First Amendment and criminal law, confirmed that whether Riley was working for the newspaper or not didn’t matter because citizen journalists have the same constitutional rights as a professional journalist. But, no matter which type of journalist you are, you can’t interfere with police doing their job.

“Juries are going to have to decide whether someone is strictly fulfilling their First Amendment function as a reporter, or whether they’re breaking the law,” he said.

Standing in

There’s a longstanding principle in journalism known as the standing-in principle, said Karen Whedbee, an associate professor of media relations at NIU. Essentially, it means that a photographer on public property is standing in as witness to a public event.

“That applies to a journalist, but it applies to all citizens,” she said.

But police can control where you’re standing in. For example, if they order you to back away from a crime scene or a traffic crash for safety purposes or to preserve the integrity of an investigation.

“If a police officer gives you an order, you are required to follow that order,” she said. “But you’re not required to give them your camera. They are not allowed to erase files.”

She said arrests of photojournalists have become more common and the American Civil Liberties Union has taken on several such cases. She said a journalist or citizen could encounter a police officer who doesn’t fully understand those rights.

“So as a citizen or a journalist you have to be very careful and remember that it’s better to deal with it after the fact than to get yourself into trouble or to escalate potential conflict,” she said.

Both police and the public need a clear understanding of the law surrounding photography in public places, she said.

“We need the police to be well-trained on this subject and that raises the standard for all of us,” she said “Police officers are doing an important job, but as part of that job they need training. We all do.”

What’s next

That brings us back to Riley. His attorneys argued that he did not escalate the conflict with the officers before his arrest.

“We really focused on the fact that he was doing his job when he was confronted,” Jacobson said. “Then the situation escalated not because of any conduct on Mr. Riley’s part.”

Riley said he’s now considering a civil lawsuit and plans to file complaints against the officers involved.

His criminal trial included multiple cell phone recordings and three witness accounts. While First Amendment laws sparked interest in the case, Riley’s attorney did not point to that – or any one key piece of evidence – that led to her client’s acquittal.

“Really, I think it’s just the fact that we got our day in court.”

This article is by Kevin Haas. Email him at khaas@rockrivercurrent.com or follow him on Twitter @KevinMHaas.