You knew London’s police would not take the increased criticism of their anti-photography tactics lying down. Now they’ve released the news that in fact an Algerian national (since deported) was caught filming numerous tube stations. Read the Sky News report. (That this particular news item is probably a “plant” by the authorities is made more credible by the fact that Sky News is part of Rupert Murdoch’s notoriously conservative news empire — e.g., a British counterpart to our own Fox News and The Wall Street Journal.)
Noteworthy is the fact that British authorities were unable to prove a terrorism-support charge against any individual apparently involved with this “surveillance.”
None of this diminishes one whit complaints that photographers are unreasonably targeted in a manner and frequency far outstripping the likelihood that photography is being used for reconnaissance. Moreover, in the CCTV still image catching the supposed terrorist agent, the camera used is a point-and-shoot, which to the best of my knowledge are never challenged in these police confrontations.
Faithful reader Kevin sent along a YouTube link, asking if I’d seen it. I responded that I had, and that I had blogged about it, but I then watched the entire video and found that this was a different version than the one I had seen, and furthermore I was unable to find the post I thought I’d made. So I owe Kevin somewhat an apology. I make amends below — some may think at excruciatingly unnecessary lengths.
The incident depicted illustrates once again some outrageous behavior and unconscionable threats by authorities, in this case the LA deputy sheriff involved. Yes, he goes to great length justifying his questions (and then actions, such as forcing the photographer against the wall and forcibly retrieving his ID) by citing terrorism threats and that the LA subway system might possibly be a terrorist target. This does not forgive the intrusion, however, and violations of several basic rights. Here’s the sequence as I understand it (and according to my interpretation of the law — as always not legal advice):
- The photographer was engaged in lawful activity (the LA Metro does not forbid photography; even if it had, however, the issue would have been “trespass,” not a crime of photography), and the photographer was exercising a First Amendment right of expression (via his photography). (As a footnote, to make photography in public spaces a crime would almost assuredly be unconstitutional.)
- The deputy had every right to inquire as to what the photographer was doing. However — and this is critical — since what the photographer was doing was 100% legal, he had no obligation to respond or explain his activities. Nevertheless, he provided some information (feeling, I am sure, under pressure when confronted with “authority,” as any of us would). He might equally have said, simply, “I am an artistic photographer, and I am engaged in an artistic photographic project.” When the police then inquire as to the project, say, “I do not wish to tell you because the project is totally legal, and therefore I am not obliged to tell you more about it” (or some other variant on, “It’s none of your business.”) Yes, such a response is still asking for trouble, but it seems to be totally within what the law permits and properly asserts the photographer’s right to keep his business to himself.
- The deputy asked for the photographer’s ID. This is not improper. What was improper, however, was to imply the photographer was obliged to provide it.
- A possible issue arises because the photographer had his hands in his pockets. In some states police may require an ID from an individual if they feel they may be in danger, and (believe it or not) hands-in-pockets is a no-no around police. Nevertheless, the law in this regard, as I understand it, requires that the police have a “reasonable fear” for their safety before they can go to the next stage, and the photographer removed his hands when told to.
- Forcing the photographer against the wall and forcibly retrieving his ID was, to my interpretation, prima facie unlawful arrest, and, should the photographer choose to pursue it, grounds for a lawsuit that could be very expensive for LA County. In addition, it is an unlawful search and seizure. Even if the police believed that a crime had been committed, the most that may be done is pat down the suspect for possible weapons — physically reaching into a pocket and retrieving an ID is so very wrong. The police need a search warrant to seize anything other than a weapon, an instrumentality of the purported crime, or something relevant that the suspect might destroy if not seized. If it is not in plain sight, it’s verboten. (Police might argue the photographer consented to retrieval of his ID. Not so. The police asked if he had an ID, which he said he did, and then asked where it was, and he said his “left front pocket.” This was not consent; the photographer was stating a fact. The police would have acted properly had they asked the photographer’s permission to retrieve the ID; if the photographer had refused, the police cannot reach in without a search warrant!)
- California is NOT a “stop and identify” state — thus, an individual acting legally has no obligation to identify himself to police. (An exception is if driving a vehicle.) Of course, refusing to identify oneself may raise suspicion, but absent some other indicia of unlawful activity, may not be basis for an arrest.
- The police suggest they have the right to view images
, had the camera been digital. This is absolutely, totally false. A photographer may cooperate and show photos to avoid further difficulties, but he doesn’t need to, and a refusal to do so (or refusal to delete photos), is not by itself cause for arrest. (For the police to view the photos without consent is a clear, absolute violation of the Fourth Amendment. If they were to delete the photos, it is at a minimum destruction of property, and possibly destruction of evidence. To coerce the photographer to show or delete the photos under threat of something like arrest or harm to his reputation is probably a crime in many states.)
- At about 3:40 in the video the deputy sheriff says, “I wanna determine if you’re committing a crime or not. If you’re down here taking pictures and selling them to Al Queda so they can blow up our subway system, I’ve got a problem with that.” Well, who wouldn’t, but this points up the essential conflict: the deputy’s shortest route to such a determination is to obtain the photographer’s cooperation, yet no extrinsic evidence points to such an extreme intent, and the mere taking of photographs is a totally legal activity. So, may the deputy be suspicious? Sure. What happens if the photographer doesn’t cooperate? If everyone acts properly, nothing — the police have no grounds to hold the photographer (refusal to cooperate is not grounds, since no crime has been committed, and the likelihood that the photographer is actually acting on behalf of Al Queda is so slim as to be non-existent — i.e., the police have no reasonable basis to suspect the photographer is acting on behalf of terrorists; refusal to identify himself is also not grounds). However, the police did not act properly. Other means exist to pursue an investigation properly — for example, the photographer has no doubt already been captured on the MTA’s CCTV system, and if the police had a camera they could photograph the photographer (although he has no obligation to stand still to be photographed), so they could try to match him against databases of suspect persons. (Likewise, he could have photographed the police — probably further incensing them — but since he was secretly recording the incident by a digital videocam, he didn’t need to.)
- The deputy drags out the fiction of surveillance preceding the London subway bombings; there is no evidence that the terrorists there used any photo or video surveillance beforehand. In any case, at this point the deputy seems to be on the defensive, asserting justification for what he’d just done. My own problem at this point is that the photographer has entered into a dialog with the police, even though having zero chance of converting them or changing the essence of the situation in any way. Frankly, in my opinion, immediately after being forced against the wall the photographer should have ceased all discussion. If at that point he had simply started to repeat, “I demand to speak with my attorney,” the tables would have been turned on the police — for them to proceed to a formal arrest would up the ante and increase possibility of a later lawsuit for wrongful arrest.
- I won’t clutter this analysis with commentary regarding the deputy’s totally unprofessional, intimidating and possibly criminal threats (5:10) to identify the photographer to other authorities, with attendant consequences. Perhaps the deputy understands he has overreached, since at 6:40 he starts to make nice, engaging in more reasonable conversation. By that time, however, it is too late. The photographer has shown amazing restraint. The deputy says (7:28) “If I have reasonable suspicion that a person may be committing a crime, or committing a violation of law, I have the legal right to stop and detain that individual.” Right there, ladies and gents, is the proverbial smoking gun. Why? Because under the circumstances the deputy could NOT have had such a “reasonable suspicion” — the deputy was (at best) operating with a misunderstanding of the right to photograph in the MTA. But if so, then, what was he doing on duty in the MTA if he did not understand the law?
- The dilemma for photographers confronted in this manner: at what point do you shut up? At what point have things already gone too far? Technically, as soon as the deputy said that the photographer was being detained (0:43 in the video) “because I want to know why you are taking pictures in the subway,” the photographer had every right to shut up and refuse to discuss the matter further. At that point the deputy changed the paradigm, using the word “detain” — he did so in response to the photographer’s inquiry whether he was “being detained,” and the deputy would have been wiser to have said, “No, but I have some questions if you don’t mind.” Many will say that to shut up then (when “detain” was mentioned) would be a mistake, but since the deputy was the one pushing the inquiry beyond legally-acceptable limits, how long must the photographer suffer until he stops cooperating? And what would happen? If the photographer has a day job, and he courts the possibility of arrest, is he endangering himself and his livelihood? This threat of arrest and imprisonment — if even only for hours — is of course the psychological pressure all police have in this kind of situation. When they don’t play fair, they sometimes get away with it. Only when someone creates a record of them overstepping the bounds of legality and good sense does it all come home to roost. As was the case here.
(The full version of the video is here. It adds nothing to the YouTube version, except more discussion between the photographer and one or both of the cops after the confrontation’s essence as analyzed above.)
I shall certainly welcome any corrections to my analysis, and any opposing viewpoints.
From our single session.