Mercier-Branch

Amanda Mercier, left, and Elizabeth Branch, right. (PHOTOS: John Disney)

In a split ruling, the Georgia Court of Appeals on Friday reversed an invasion of privacy conviction against a man who took video recordings with a cellphone camera aimed beneath a woman’s skirt while she shopped for groceries.

State law fails to prohibit conduct that has become “so prevalent that it has earned a nickname: ‘upskirting,’” Judge Elizabeth Branch wrote for the majority. “Unfortunately, there is a gap in Georgia’s criminal statutory scheme, in that our law does not reach all of the disturbing conduct that has been made possible by ever-advancing technology.”

In a scathing dissent, Judge Amanda Mercier insisted that “no such gap exists.” Rather, she wrote, “the majority has in fact created one by judicial fiat.” Mercier, joined by presiding judges John Ellington and Herbert Phipps, accused the 6-3 majority of “negating privacy protections” with a “stroke of a pen.”

“The victim,” Mercier wrote, “had a reasonable expectation of privacy in the area under her skirt.”

Brandon Lee Gary was prosecuted under Georgia’s Invasion of Privacy Act, which makes it illegal to photograph or record activities of an unconsenting person “in any private place and out of public view.” Gary, who had been an employee of the Publix store where the filming occurred, admitted to the charges in a bench trial in Houston County Superior Court, where he was found guilty. The stipulated bench trial preserved Gary’s right to appeal.

The sole issue on appeal was how to define the word “place,” and whether it can include a region of the body.

Branch, joined by Chief Judge Sara Doyle, Presiding Judge Gary Andrews, and judges Stephen Dillard, William Ray II and Nels Peterson, said the answer is no, based on the plain language of the statute.

“Whether an individual has a reasonable expectation of privacy in certain areas of his or her body is not the question currently before this court,” Branch stated. “And while a law criminalizing such conduct is desirable, the plain and unambiguous language [of the statute] does not reach that conduct.”

Mercier countered that the word “place” can also refer to a location on the body, and that reading of the term is even part of its dictionary definition.

“Indeed, ‘private place’ is a phrase heard daily in courts across this state, as judges, prosecutors, defense attorneys, psychologists, detectives and children, to name only a few, use it to describe incidents of sexual abuse,” wrote Mercier. In a footnote, she added references to news reports on upskirting arrests. “Thus, the commonly understood meaning of the phrase ‘private place’ has until today allowed for no gap in our privacy laws.”

Gary was captured on store security surveillance video in 2013 following the victim and aiming his camera as she reached for items on shelves and paid.

Gary’s defense attorney, assistant public defender Michael Rivera, called the case a fight of constitutional proportions.

“Government should only be allowed to prosecute someone on a clear-cut law,” Rivera said.

Noting the division among the judges, Rivera said he expects the state to appeal and that he’s ready to “continue this fight in the Supreme Court of Georgia.”

Houston County District Attorney George Hartwig III said he is considering options and hasn’t decided whether to appeal or lobby for a clarification of the law.

Branch all but sent the legislature an invitation to look into it. “The remedy for this problem,” she wrote, “lies with the General Assembly, not with this court.”

The case is Gary v. State, No. A16A0666.

Contact the reporter at ktucker@alm.com.