ACLU sues for photographers’ rights
By Andrew Hudson Published: November 1, 2011 Updated: October 18, 2016
The ACLU has filed suit in Los Angeles seeking a federal statement on photographers’ rights.
Since 9/11, photography has become increasingly equated with terrorism and local police have been required to submit federal “Suspicious Activity Reports” that could potentially ensnare photographers. The ACLU’s action aims to broaden the legal defense of us law-abiding photographers.
“By this action, Plaintiffs seek to .. to obtain a ruling from this [U.S. Federal] Court that photography alone cannot be a basis for criminal suspicion, detention and search.”
— ACLU Foundation of Southern California (source).
The ACLU lawsuit demands “a declaratory judgment that Defendants’ actions as described herein violated the First and Fourth Amendments to the United States Constitution” and that “policies or regulations” authorizing such police conduct are ruled “unconstitutional.”
This is an interesting collision of safety and freedom which is playing out in several states.
ACLU Suit in L.A.
On October 29, 2011, the American Civil Liberties Union (ACLU) Foundation of Southern California and the law firm Akin Gump Strauss Hauer & Feld LLP of Los Angeles filed a federal lawsuit in the U.S. District Court for the Central District of California against the Los Angeles County Sheriff’s Department (LACSD) and some its officers (copy of lawsuit).
The suit details nine incidents where LACSD officers allegedly harassed photographers who were in public places, and in some cases detained them, on the grounds of suspicious activity.
“These acts plainly violate Plaintiff’s First Amendment right to free expression and their Fourth Amendment right to be free of unjustified searches and seizures.”
— ACLU Foundation of Southern California (source).
“You know, I’ll just submit your name to T.L.O. [terrorism liaison officer]. Every time your driver’s license gets scanned, every time you take a plane, any time you go on any type of public transit system where they look at your identification, you’re going to be stopped. You will be detained. You’ll be searched. You will be on the F.B.I.’s hit list. Is that what you want? . . . Every time you move, you will be stopped and detained and searched. And delayed.”
— Alleged statement of Deputy Richard Gylfie to Plaintiff Shawn Nee as he was photographing subway turnstiles (source).
“Al Qaeda would love to buy your pictures, so I want to know if you are in cahoots with Al Qaeda to sell these pictures to them for terrorist purposes.”
— Alleged statement of Deputy Richard Gylfie (source).
“Should we really ignore suspicious activity? We have an obligation to the public to answer questions and we are going to ask people why are you taking that picture. It is our duty to protect the public.”
— Los Angeles County sheriff’s Capt. Mike Parker, October 31, 2009 (source).
“Photography is not a crime; it is a means of artistic expression. In public spaces, on public streets and from public sidewalks, no law bars Los Angeles residents and visitors from photographing the world around them, from documenting their own lives or using their lenses to find the sublime in the commonplace.”
— ACLU lawsuit, 2011 (source).
Actions in Other States
A number of similar lawsuits have been filed elsewhere in America. Even the nation’s capital has a legal standard for photography and suspicious activity:
“[A] Violation Citation may be issued for the misdemeanor offenses .. [including] Photographer — More than 5 minutes at location.”
— Washington D.C. Metropolitan Police Department, December 2005 “violation citation” lists a misdemeanor offensesource via Mike DeBonis for The Washington Post.
The National Press Photographers Association (NPPA) has asked for this to be changed.
“ .. these three vague and incrementally overly broad sections taken together could be interpreted to mean that any photographer taking a photograph of anything, be it a building, person or inanimate object for longer than five (5) minutes would be in violation of the regulations and subject to fine or arrest .. We contend that this licensing scheme, based upon regulations that are facially inconsistent with the protections provided under the First Amendment, is unconstitutional. .. these facially defective regulations will only further contribute to the erroneous belief by law enforcement that public photography may be arbitrarily limited or curtailed.”
— Mickey H. Osterreicher, NPPA general counsel, October 31, 2011 source).
Two months ago, the United States Court of Appeals for the First Circuit in Boston ruled that photographing police is protected by the First Amendment:
“A citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”
— U.S. Court of Appeals for the First Circuit, August 26, 2011.
A year ago (October 18, 2010), the New York Civil Liberties Union won a declaration from the United States Department of Homeland Security that affirms “the public’s right to photograph the exterior of federally owned and leased facilites.”
“It is important that law enforcement and PSOs [Protective Security Officers] uphold the public’s general right to photograph the exterior of federal structures .. Therefore, absent reasonable suspicion or probable cause, law enforcement and security personnel .. must allow individuals to photograph the exterior of federally owned or leased facilities from publicly accessible spaces.”
— US Department of Homeland Security, Federal Protective Service, Threat Management Division, HQ-IB-012-2010 dated August 2, 2010, revised January 2011, source).
Equating Photography with Terrorism
Where did all this start? Unfortunately it is a reaction to the important task of protecting against terrorism.
“Photographers in Los Angeles and nationwide are increasingly subject to harassment by police officers. Safety and security concerns should not be used as a pretext to chill free speech and expression.”
— Mickey H. Osterreicher, general counsel for the National Press Photographers Association (source).
Following the 9/11 attacks, an increased emphasis was placed on information sharing between intelligence agencies and law enforcement. This led to the formation, in 2004, of the federal Office of the Director of National Intelligence (DNI) and the Information Sharing Environment (ISE).
In 2008, the DNI ISE published standards for law enforcement agencies to report “suspicious activity,” which could include “photography of facilities” (source).
“Suspicious activity reporting (SAR) is an official documentation of observed behavior that may be indicative of intelligence gathering or pre-operational planning related to terrorism, criminal, or other illicit intention. .. Some examples of the criteria for identifying SAR as having a potential terrorism nexus are: .. Photography: Taking pictures/video of facility/ infrastructure/ personnel or surrounding environment.”
— Program Manager for the Information Sharing Environment (ISE) Functional Standard (FS) Suspicious Activity Reporting (SAR), 2008.
The FBI’s eGuardian suspicious activity reporting system states that reportable activities include “photography of key infrastructure facilities.” (source).
These federal requirements have created a variety of local responses.
“Suspicious Activity Reporting was initially developed by the Los Angeles Police Department under their Special Order 11, which requires officers report as ‘suspicious activities’ any number of different criminal and noncriminal activity, including when an individual ‘[t]akes pictures or video footage (with no apparent esthetic value, i.e. camera angles, security equipment, security personnel, traffic lights, building entrances, etc.)’”
— ACLU lawsuit, 2011 (source).
Fortunately, the ACLU and NPPA are monitoring the responses to protect photographers.
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