As the Washington Post recently noted:
The First Amendment protects the right of citizens to take photographs in public places. Even after the terrorist attacks of Sept. 11, 2001, law enforcement agencies have reiterated that right in official policies.The situation has reached a boiling point.
But in practice, those rules don't always filter down to police officers and security guards who continue to restrict photographers, often citing authority they don't have. Almost nine years after the terrorist attacks, which ratcheted up security at government properties and transportation hubs, anyone photographing federal buildings, bridges, trains or airports runs the risk of being seen as a potential terrorist.
Reliable statistics on detentions and arrests of photographers are hard to come by, but photographers, their advocates and even police agree that confrontations still occur frequently. Photographers had run-ins with police before the 2001 attacks, but constitutional lawyers say the combination of heightened security concerns and the spread of digital cameras has made such incidents more common.
The National Press Photographers Association this week announced its support for a House resolution to protect photographers from police interference. Read about it here.
NPPA's leadership was pleased to see that U.S. Representative Edolphus Towns of New York's 10th District introduced House Congressional Resolution 298, which recognizes that the videotaping or photographing of police who are engaged in potentially abusive activity in a public place should not be prosecuted in state or federal courts.What's clearly needed is better education of rank-and-file officers on the street by the law enforcement agencies that hire and train them. Often well-intentioned police overstep their bounds and harass innocent shooters simply because of their own ignorance of the law, and some vague notion that anyone taking a picture is somehow a security threat.
NPPA's leadership asked Rep. Towns to take the next step in protecting photographers' First Amendment rights by changing his Resolution, suggesting that Towns instead introduce his proposal as a Congressional Bill.
Further, police are inappropriately citing wiretapping laws, wrongly claiming that shooting pictures constitutes illegal electronic surveillance. NPPA's general counsel, photojournalist Mickey H. Osterreicher, wrote about this issue this week for the Media Law Resource Center: "Photography Restrictions Run Rampant."
Although the First Amendment has been under constant attack since its ratification, incidents occurring over the past few months might lead one to believe that the War on Terror is taking its toll on a mistaken enemy. In Houston, a homeowner filed a civil rights complaint because he was arrested for "illegal photography" after a taking pictures of a police sergeant who followed him into his own home. A student photographer at Ohio State University was handcuffed and charged with criminal trespass by university police after attempting to photograph two cows that were roaming the campus. School employees and police told him he was not allowed to take pictures of the incident, despite the fact that he was a student photojournalist working for the school paper and he was on public property.Osterreicher goes on to cite, in devastating detail, the numerous reports of government interference with press coverage of BP's Deepwater Horizon disaster in the Gulf of Mexico.
In Miami two photojournalists were told by private security for the transit system and Miami-Dade police officers that they were not allowed to photograph in and around the metro stop. Police also barred the pair from entering the station although they had metro tickets and threatened them with arrest if they did not comply. Another similar incident occurred in Atlanta where a person was ordered off a train and off MARTA property by a transit employee for taking pictures. Almost as disturbing was a subsequent post by a MARTA customer service representative who justified the action as a result of “the 9/11 attack and the subway bombings in Spain and the UK.”
Illinois, Maryland and Massachusetts are just three states where police are using obscure wiretap laws to prosecute people for recording the activities of police officers on public streets and roadways. In Boston one man was arrested for “illegal electronic surveillance” after he recorded audio of police officers making a drug arrest. In Baltimore, several people face felony charges for recording their own arrests. All of these incidents happened in public.
While these incidents only create anecdotal evidence, they do seem to point to a shift in how free speech is viewed by both law enforcement and the public. In many cases police officers make up new laws. In other incidents the police and the public seem to truly believe that they are enforcing or articulating laws or unwritten policies that do not actually exist. Still other cases appear to be an abuse of discretion as authorities ignore well founded constitutional principles. It is therefore incumbent upon the legal community to directly address these cases as soon as possible.Educating the public, and its sworn protectors, seems to be the most feasible solution, he argues.
While assaults on the First Amendment continue it also appears that a commonsense approach in individually redressing even the most egregious of these abridgements has yielded some positive results. Continuing vigilance against this uninformed attitude along with efforts to make the general public and law enforcement aware of the dangers that accompany such infringements will help protect these precious freedoms.Meanwhile, ABC reports on the "Growing Number of Prosecutions for Videotaping the Police," offering as evidence this video that motorcyclist Anthony Graber shot with his helmet-cam -- of him being stopped for speeding by a plainclothes state trooper with a drawn pistol. He was arrested for posting the video on YouTube, an "offense" for which he faces 16 years in jail.
State police officers raided Graber's parents' home in Abingdon, Md. They confiscated his camera, computers and external hard drives. Graber was indicted for allegedly violating state wiretap laws by recording the trooper without his consent.
Arrests such as Graber's are becoming more common along with the proliferation of portable video cameras and cell-phone recorders. Videos of alleged police misconduct have become hot items on the Internet. YouTube still features Graber's encounter along with numerous other witness videos. "The message is clearly, 'Don't criticize the police,'" said David Rocah, an attorney for the American Civil Liberties Union of Maryland who is part of Graber's defense team. "With these charges, anyone who would even think to record the police is now justifiably in fear that they will also be criminally charged."
Carlos Miller, a Miami journalist who runs the blog "Photography Is Not a Crime," said he has documented about 10 arrests since he started keeping track in 2007. Miller himself has been arrested twice for photographing the police. He won one case on appeal, he said, while the other was thrown out after the officer twice failed to appear in court.
"They're just regular citizens with a cell-phone camera who happen to come upon a situation," Miller said. "If cops are doing their jobs, they shouldn't worry."
Read the rest of ABC's in-depth report here.
This week the Washington Post similarly published an investigative look at the hot-button issue: "Freedom of photography: Police, security often clamp down despite public right," complete with examples of photos that got innocent people in trouble with the police.
Again, the conclusion is that the friction between camera-wielders and cops is getting worse, mainly because of a widespread misunderstanding of the law.
Law enforcement officials have a hard time explaining the gap between policy and practice. The disconnect, legal experts say, may stem from a dearth of guidelines about how to balance security concerns with civil liberties.Now photographers are fighting back en masse.
"Security guards are often given few rules to follow, but they have clearly gotten the message that they need to be extra vigilant," said Kent Willis, executive director of the American Civil Liberties Union of Virginia. "In the end, it seems you never know how a particular security guard is going to react."
Last year, New York City police sought to clarify the rules on photography with a directive to all officers. It said that photography is "rarely unlawful" and that officers have no right to demand to see photos or to delete them. Like Washington, New York is a potential terrorist target but also a major tourist destination, and as a result, the directive said, "practically all such photography will have no connection to terrorism or unlawful conduct."
Police officials say officers who seek to stop photography are driven by safety concerns and the fact that the presence of a camera can spike emotions.
Photographers are challenging unwarranted restrictions by collecting hundreds of photos that prompted police questioning, detention or arrest; the pictures are posted on online photo sharing sites such as Flickr.The Washington Post details 10 local incidents where photographers were erroneously asked to stop taking pictures, including this one:
Local photographers are also testing trouble spots, especially outside federal buildings, many of which are guarded by the Federal Protective Service, an agency in the Department of Homeland Security that has 1,225 officers and 15,000 contract guards to secure more than 9,000 buildings nationwide.
Photographers say police need to be told explicitly not to prohibit photography, because officers often don't respond well to impromptu citizen lectures on constitutional law.
A Union Station security guard interrupts the taping of a TV news segment with an Amtrak official. The official was trying to explain that photography is allowed at Union Station. The incident illustrates the problems photographers encounter at the station, which is controlled by multiple entities. Amtrak controls only the ticketing area and waiting area. A parking management firm has jurisdiction over the parking garage. The guard who interrupted the interview worked for a real estate firm that oversees the retail and dining areas. (Photographs inside a store or restaurant require permission from its proprietor.) All three entities say they allow photography in public areas, but photographers are often told inconsistent information.
See KobreChannel's previous entries:
* Taking Photos in Public Places is Legal
* Journalists vs. Law Enforcement: Know Your Rights
Have you had an unpleasant encounter with law enforcement officers while you were legally shooting photos or video? Please share it with us.