Photographers and police: a First Amendment clash
Photographers have been arrested, had camera equipment seized, and seen memory cards deleted by police officers. Is it harassment or protecting public safety?
Reality shows routinely tail US police officers, filming them tangling with miscreants. Cops regularly film themselves from cameras mounted on cruiser dashboards â€“ and now special hats. But if the state uses cameras for its own purposes and defense, why are so many citizens getting in trouble for pointing their cameras at the police?
The rise of security and red-light cameras coincides with ubiquitous photography, when nearly every American with a cellphone holds a reality-recording device in his or her pocket.
That democratization of photography is ratcheting up tensions between police, who sometimes feel beleaguered by citizen gotcha artists, and amateur photogs who claim a First Amendment right to record whatâ€™s happening in the public square.
â€śYou can buy a digital camera the size of a stick of gum for 20 bucks,â€ť says Radley Balko, a senior editor at Reason magazine and frequent critic of police power in the US. â€śAs a result, weâ€™re seeing all these videos popping up that show not only misconduct, but contradict what shows up in police reports after the fact.â€ť
A growing list of police seizures cameras and destroyed pictures is testing the Constitutionâ€™s First Amendment protections. In a New Orleans case this week, two â€ścopwatchâ€ť activists failed to win a civil conviction against New Orleans police officers who three years ago confiscated their cameras, erased footage, and arrested them for â€ścrossing a police cordonâ€ť during the Bacchus Krewe Mardi Gras parade.
- A famous YouTube clip shows a citizen videographer running away from a police officer trying to grab his camera after another officer allegedly shot a handcuffed man, Oscar Grant, in the back at a crowded public transit station in Oakland, Calif., on New Yearâ€™s Day 2009. (The officer claimed he thought his gun was a Taser, but citizen video evidence was used to bring murder charges.)
- After a three-year legal battle over Miami photographer Carlos Millerâ€™s arrest on a public street for refusing to stop taking pictures of several police officers, Mr. Miller saw all the charges dropped this week. (His compendium of such incidents can be seen here: carlosmiller.com)
- The Boston Globe recently wrote a series about Massaschusetts police using an obscure wiretap law to confiscate crime-scene video recordings collected by passers-by.
Moreover, police often have the upper hand in court. The New Orleans jury, for example, found that the photographers brought their troubles on themselves.
Police have a legitimate right to object to filming that interferes with their duties. And â€śthere's another reason cops are skittish,â€ť explains one police officer commenting on a 2008 Popular Mechanics story titled Watching the Watchers. â€śAs anyone who has ever seen a Michael Moore movie knows, creative editing and partial context can let you make film say whatever you want.â€ť
Still, experts say itâ€™s relatively easy for police officers to interpret obstruction laws too broadly.
â€śOne of the problems photographers do face is the vulnerability to being charged with things that they didnâ€™t do, and where, absent images or independent witnesses, it then comes down to a citizenâ€™s word against a police officerâ€™s word.â€ť
For many civil libertarians, police overreach is incontrovertible in almost all camera seizure and photographer arrest cases. â€śWe have this thing called the Constitution, and the idea that you canâ€™t film something that you can see is ludicrous,â€ť says Marjorie Esman, executive director of the Louisiana ACLU. â€śThe sad thing about these cases is it suggests that police donâ€™t want people to know what theyâ€™re doing, which then implies that theyâ€™re doing something that they donâ€™t want people to know that theyâ€™re doing.â€ť
At least one state, Mississippi, is looking at whether First Amendment protections are strong enough to protect photographers in the video age. That debate needs to happen nationally, too, some law experts argue.
â€śAbuse of photographers is common, and difficult to remedy under current law,â€ť writes University of Tennessee law professor Glenn Reynolds in an e-mail. â€śI believe that public officials performing their duties â€“ including, but not limited to, law enforcement â€“ should be subject to photography by citizens, and I would favor a federal civil rights law to that effect.â€ť
More pragmatically, citizens do have recourse beyond the courts if they believe their First Amendment right to capture reality in the public sphere has been violated by an officer of the state.
â€śComplaining to a departmentâ€™s internal affairs unit is a pretty effective tool in [educating] police departments better with respect to the rights of the public to take photographs,â€ť says Mr. Krages. â€śAnd citizens can also get in touch with local or regional media. Newspapers have a deep interest in being able to photograph in public.â€ť