The sexual assault allegation against Supreme Court nominee Brett Kavanaugh is prompting members of Washington's private school community to look inward.
In the era of smartphones and cheap digital cameras, most Americans now carry some sort of recording device. Though the right has been upheld repeatedly, cases continue to crop up across the country in which citizens are prevented from capturing images of arrests and other law enforcement actions. We explore an issue that has divided activists and law enforcement, and find out why Washington’s Metropolitan Police Department issued an order upholding a citizen’s right to photograph officers.
- Kristopher Baumann Chairman, Fraternal Order of Police Metropolitan Police Department Labor Committee
- Arthur Spitzer Legal Director, ACLU of the National Capital Area
- Mickey Osterreicher General Counsel, National Press Photographers Association (NPPA)
Metropolitan Police Department General Order
The policy recognizes that members of the public have a First Amendment right to video record, photograph and audio record members of the Metropolitan Police Department (MPD) while MPD officers are conducting official business or acting in an official capacity in any public space, unless such recordings interfere with police activity. Read the full order:
Video Published In Baltimore Brew
Scott Cover was harassed by the Baltimore City Police Department for filming an arrest in February 2012.
MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. In the era of smartphones and cheap digital cameras, almost everyone has some sort of recording device, but what happens when you turn that camera on authority figures, namely when someone photographs or videotapes police? It's a right that's been upheld repeatedly under the First Amendment, both for the media and for ordinary citizens as long as they are not interfering with the police doing their jobs.
MR. KOJO NNAMDIBut in case after case here and around the country, the issue keeps coming up. Two weeks ago, the District's Metropolitan Police Department issued an order reminding officers that they are not to interfere with people taking photos or video in a public place, including when the camera is trained on them. Joining us to discuss this is Kristopher Baumann. He is chairman of the D.C. police's union. Kris Baumann, good to see you.
MR. KRISTOPHER BAUMANNThank you for having me back.
NNAMDIAlso with us is Arthur Spitzer. He is the legal director for national capital area with the American Civil Liberties Union, ACLU. Art Spitzer, thank you for joining us.
MR. ARTHUR SPITZERThank you, Kojo. It's good to be here.
NNAMDIAnd joining us from studios in Buffalo, N.Y. is Mickey Osterreicher, general counsel for the National Association of Press Photographers. Mickey Osterreicher, thank you for joining us.
MR. MICKEY OSTERREICHERThank you for having me.
NNAMDIIt's a conversation you, too, can join by calling 800-433-8850. You can send email to email@example.com, send us a tweet, @kojoshow, or simply go to our website, kojoshow.org, and join the conversation there. Have you ever photographed or videotaped police? What has been your experience? 800-433-8850. Art, can you tell us about the case that sparked this recent order affirming a citizen's right to film police officers, the case of Jerome Vorus?
SPITZERYes. Mr. Vorus is a young man, lives in Northern Virginia, always carries his camera with him. He plans to be a photojournalist in his career. And one day in the summer of 2010, he was walking in Georgetown and noticed police conducting a traffic stop, giving someone a ticket. He stopped and started taking pictures. And the police came over to him. A police officer informed him that he was not allowed to take their pictures without their permission.
SPITZERHe turned on the sound recording feature of his camera, and he started recording the conversation. And the officer said, no, you can't do that without permission from the Metropolitan Police Department Public Affairs Office. He stood his ground. They asked him for his ID. He gave it to them. They kept him there for about half an hour while they figured out what to do, and, eventually, they decided not to arrest him.
SPITZERThey gave him back his ID. They never took his camera, and he went on his way after some considerable inconvenience. He got in touch with us, and we thought this was a good time to try to do something about this pattern that we've seen locally and around the country where police somehow think that they are privileged against being photographed when they're out on the street. Unlike you and me, anyone can take our picture who wants to.
SPITZERSo we filed this lawsuit, and the police department was commendably willing to sit down with us and figure out how to solve this problem. And so on July 19, they issued a new general order. A general order is the highest level of orders in the police department. It stays on the books permanently until changed.
SPITZERAnd it basically says -- I can summarize the provisions. But it basically says if you're out on the street doing your job as a police officer and someone is taking your picture, that's their First Amendment right, and you have no business telling them to stop that, demanding their identification, detaining them, locking their camera, nothing like that. Of course, they don't have a right to interfere with police business.
NNAMDIThere are exemptions.
SPITZERRight. If they're trying to get in between you and somebody you're dealing with, that's not their right. You can tell them to move away. If they're in a position where they might be in danger to themselves or others, you can tell them to move away, but you can't tell them to stop taking pictures. The most difficult part of negotiating this order, actually, was what do you do if there might be evidence on the camera?
SPITZERMaybe you've taken pictures of a crime scene or of a crime in progress or even of police misconduct. Police have a right to that evidence. They may need to use it in court, but we'd rather not have the police grabbing people's cameras and cellphones the way sometimes happens. And sometimes, those cameras and cellphones strangely wind up missing their memory chips or having things erased from them when they...
NNAMDIAn issue we'll get to later, but go ahead.
SPITZERYeah. And so what we worked out, which I think was actually very creative, was that the first option is the police officer can ask the person, would you please email or text these photographs or recordings to my email account? And the police officer can watch the citizen do that, so there's a chain of custody established that we know this is the authentic photo. The police get the evidence. The citizen keeps his camera or his cellphone. I hope that will be a very practical solution.
NNAMDIMickey Osterreicher, this issue is especially relevant to press photographers. What are some of the issues that photojournalists face?
OSTERREICHERThey really face the same issues that citizens do. You know, it's been my experience -- and I deal with this around the country almost on a daily basis -- where both citizens and journalists are interfered with and/or arrested for doing nothing more than either taking pictures or recording the police activities in a public place. And, obviously, you know, our position is, while the press may not have any greater right than the public, they certainly have no less right than the public.
OSTERREICHERAnd many times, we find that somebody that's got credentials or is obviously using professional-looking still cameras or, you know, betacams, something that would be obvious to anybody that they were shooting for television news have been interfered with while the public has been allowed to stand there and observe. And that's a problem. You know, going back to what Arthur just said, it's certainly our contention that photographing and videotaping is a First Amendment right of free expression and free press.
OSTERREICHERAnd it is not an absolute right. It's subject to reasonable time, place and manner restrictions, the key word there being reasonable, so that if a police officer asks you to move back a few feet, that's reasonable. If he tells you to stop recording or photographing or to just go away, that would not be reasonable. And we've had a number of cases involving our members where exactly that has happened.
OSTERREICHERAnd one in particular that we have also commenced a federal civil rights lawsuit, we had a photojournalist in Long Island in Suffolk County who responded to the scene where there was police activity, was standing across the street with a number of citizens and recording, certainly wasn't in the way by any means, and a sergeant came over and told him that he had to stop and that he needed to go away and just go away.
OSTERREICHERAnd no matter -- fortunately, Phil Datz, who was the photographer, continued to keep rolling and record this because I think most people would find it almost inconceivable if this was just related to them later as opposed to watching the video. This sergeant persisted, basically said, I don't care who you call. He basically had -- Phil had offered to call the public information officer.
OSTERREICHEREventually, he left. He went about a block away, was shooting. It was very evident that there were people walking up and down the street. There was traffic going by. And a few seconds later, a police car pulled up, almost hitting him. He had to take a half a step back, and the sergeant, same sergeant, jumped out again and said, OK, that's it. You're under arrest. They arrested him. They charged him and seized his camera and...
NNAMDIWhat was he charged with?
OSTERREICHERI believe, in this case, it was obstruction of governmental administration. The district attorney immediately, you know, shortly thereafter dropped the charges. Phil filed a complaint. That's never been investigated or responded to to our satisfaction, and that's why we, along with a law firm in New York of Davis Wright Tremaine, filed that suit. And we'll see what happens.
NNAMDIWe invited the Metropolitan Police Department to join us for this conversation. The department declined but sent a statement saying, while we have pre-existing policy that addresses interaction with the media, the new general order reaffirms the Metropolitan Police Department's recognition of the First Amendment rights enjoyed by not only members of the media but the general public as well to video, record, photograph and/or audio record MPD members conducting official business. As I said, joining us in studio is Kristopher Baumann. He is chairman of the D.C. police union.
NNAMDIKris Baumann, we know that this order has been sent out by the D.C. police, and Art Spitzer -- Arthur Spitzer gave a synopsis of it. Couple of questions, one, is there anything you'd like to add to that synopsis? And, two, we're talking here in fairly sterile terms with when a police stop occurs, it's usually a situation that is fraught with tension, and many people don't like being photographed by strangers anyway. Does that put an additional tension, source of tension on police officers caught in that situation?
BAUMANNI think it does, Kojo, and I think that it leads into an important point here. And that is, is we could not, as the rank and file police officer, be more disappointed about how this unfolded. Just to give some perspective, we have about 3,800 police officers. We were up to over 4,000 a couple years ago. And so assuming we have 1,600 officers out on the street each day -- and I'm trying to be very conservative here -- 10 interactions a day with citizens, that's 16,000 interactions a day.
BAUMANNSo you're talking over a million, several million a year, through the years. We have one time this happened, and then you had Mr. Spitzer calling a pattern. You have a blogger from The Washington Post just saying that it's a spate of problems. And I can tell you from being on the street in '02 on, everywhere you go -- and this was in '02, and it's more true now -- you're filmed. Your picture is taken. You're filmed. It happens all the time. I backed up an officer on a traffic stop probably a month-and-a-half ago. The people in the car reminded us probably eight times they were filming us.
BAUMANNAnd guess what happened? Nothing. Nothing happens. This department, these officers have done an extraordinary job of understanding what the rights are and respecting the rights of citizens and journalists to film them. Now, one thing that's important to remember, there are 32-plus police agencies in D.C. We are the Metropolitan Police Department. Many of the anecdotes we hear, many of the other -- and sometimes, there's documentation to come out. They involve other agencies that we don't control.
BAUMANNMr. Spitzer and I have worked in the past together on the Trinidad checkpoints. We worked together with the ACLU on the Freedom of Information Act. We've been on opposite sides of issues. But I thought this was an opportunity to say -- and I understand there are concerns in other jurisdictions to say, hey, look, here's the department that gets it. This police department, its officers understand what the rights are. They're respectful. They have an unbelievable record. If you're doing something right 999 times out of 1,000, that's not a pattern. That's an anomaly.
BAUMANNAnd you focus on the anomaly and fix it, and that's what I wish had happened here. The order you -- the second part of your question was about the order. The -- we were not consulted on the order, which is required. I think the order in some ways is going to be a real hindrance to criminal investigations. I understand the ACLU -- their concern is not about individual victims or victims' families, but, as police officers, it is. And what this is going to do to the chain of evidence -- and Mr. Spitzer mentioned the chain of evidence. This has not been established in court.
BAUMANNWe don't know what a judge is going to say about this in a defense trial. If you do, in fact, try and email me and you spell my name wrong because you only put one N or you spell Kris with a CH, that will never get there. If the file is too large, it will never get to me. That evidence will be lost. We don't have the ability to hold someone at a scene, even if we know they have evidence.
BAUMANNI can't imagine turning to the victim of a family or the next victim of the criminal where we had film of the individual doing it and saying, we had to let the individual walk away because we don't have the ability to hold them. We know there was evidence that would've proven that they committed the crime, and we had to let that go. When you don't have a real problem somewhere and you force a solution on it because you're trying to make a point, you cause real problems for people down the road. And I think that's what we've done here.
NNAMDIArthur Spitzer, what Kris Baumann is saying -- at least what I hear him saying -- is that this is a giant solution in search of a problem, that this happens so rarely, in fact, that we don't need to be making this big brouhaha about it.
SPITZERWell, I couldn't be more pleased to agree with Kris that, in general, D.C. police officers interact well with members of the public in D.C. But if we're talking about 16,000 interactions a day -- that's more than 100,000 interactions a week -- if one-tenth of 1 percent of those interactions are not good, that's more than 100. And I'm not suggesting that there's more than 100 times a week when there are problems with police and cameras in D.C.
SPITZERBut I don't think there's only been one instance in the last two years either. I think this is a problem that -- and it's, to some extent, an understandable problem. As you mentioned earlier, Kojo, many people just don't feel right about people taking their pictures on the street. And I'm aware of another incident that was on Fox News last week, the day after this order became effective, where...
NNAMDIAnd we have the individual who was involved in that institute -- in that incident on the line with us. His name is Earl Staley. Earl Staley, can you hear me? Well, what we're going to do is take a short break, and when we come back, we will have Earl Staley on the line. If you have called, stay on line. We will get to your calls. We do have lines open. The number is 800-433-8850. Are you aware that you're allowed to photograph in public places? Are you aware of what's off limits to you? 800-433-8850, or send us a tweet, @kojoshow. I'm Kojo Nnamdi.
NNAMDIWelcome back. We're talking specifically about photographing police with Kristopher Baumann. He is chairman of the D.C. Police Union. Arthur Spitzer is the legal director for the National Capital Area with the American Civil Liberties Union. And Mickey Osterreicher is general counsel for the National Association of Press Photographers. He joins us from the studios of WNED in Buffalo, N.Y.
NNAMDIAnd joining us now by telephone is Earl Staley. He is a resident of the District who was filming the police during an arrest in Southeast recently. Earl Staley, thank you very much for joining us. Can you hear me?
MR. EARL STALEYYes, sir. I can.
NNAMDITell us what happened in the incident in which you were involved.
STALEYWell, I was going to go pick up my daughter from school, from her daycare that she attends on Alabama Avenue, and then I seen the police making a stop on a guy that was riding on a motorbike. They knocked the guy off the motorbike, and I ran over to see what was going on because it appeared that they were punching him 'cause they had been chasing him. So it appeared that they were punching him.
STALEYI ran over to go see what was going on, and a vice cop started attacking people, the pedestrians that were out on the sidewalk, chest bumping them, basically tying to entice them to attack him, to swing on him or whatever. And when I put on my camera to video record it -- and another vice cop ran up behind me and snatched my cellphone out of my hand. He said -- once he snatched my cellphone, he basically told me that I wasn't going to get it back. And if I kept complaining, he was going to lock me up.
NNAMDIWere you aware of your right to photograph police at that time?
STALEYYes, sir. I knew about that. It was the fact that I have my freedom of speech and freedom of press that I can record the -- them doing illegal activities.
NNAMDIDid you know about the specific directive that was just issued by the D.C. police about that?
STALEYNo. I didn't know about it until afterwards once I got in -- I've seen that last guy's -- what's his -- on TV on Fox 5.
NNAMDIArthur Spitzer is probably who you saw talking.
STALEYYes. Arthur Spitzer and the other guy that was in the case with him.
NNAMDISo your camera was taken from you. When did you get it back?
STALEYI had to go up to 7D, and they probably gave it back to me about two hours after they took it. I sat inside 7D police takes for about an hour, hour-and-a-half just trying to wait for the lieutenant to come out and give me my phone.
NNAMDIAnd when you got your phone back, what did you observe about it?
STALEYOnce I got it back, I didn't notice anything. He told me everything was OK with it. I got home and went to -- and my mom had dropped off my daughter to my house. I went to take pictures of me and my daughter, and it said, please insert memory card. And I know that my memory card was just in my phone because I was listening to music, and I was taking pictures just earlier that day.
NNAMDIAnd there was no memory card, so it is my understanding that you are pursuing a case?
STALEYYes, sir. I am.
NNAMDIAnd that you are working with the ACLU on that case, correct?
STALEYYes, sir. I am.
NNAMDIOK. Earl Staley, thank you very much for sharing your story with us. Mickey, you helped develop the guidelines and train the District Police Department on this, as well as other police departments around the country. And you have, I guess, a unique perspective because not only are you a press photographer and a lawyer. You are also a police officer. Is that correct?
OSTERREICHERYes. I'm a reserve deputy with the Erie County Sheriff's Department and have been so since 1976. So I certainly can appreciate both sides of the argument. I absolutely advocate for the rights of photographers, but I don't do so with blinders on. I'd just like to go back and address a couple of things that Mr. Baumann said. First of all, I would like to commend Chief Cathy Lanier and the D.C. Police Department for how progressive they have been. I think...
NNAMDIKris is not allowed to do that. He's head of the union. Go ahead.
OSTERREICHERI think it's -- you know, it's unfortunate that the union looks upon it, this general order, in the way that they do. But I think that one of the really important reasons that it's there is because, whether or not there's only one or two situations -- I think Mr. Baumann would agree with me -- that without having a general order in place, if an officer is accused and possibly found to be in violation of a policy -- and in this case, you know, just this recent one -- without having an actual policy in effect, the union would argue that they have no -- that the department has no way to discipline an officer.
OSTERREICHERSo, you know, if officers do what they're supposed to do, then there's not a problem. But when there is a problem, if this policy is not in place, then the department has no recourse with the union stepping in and saying, OK, show us what policy the officer violated. If there is no policy...
NNAMDIAllow me to have Kris Baumann respond.
BAUMANNWith all due respect, Mickey, I understand that New York has different types of unions that handle things differently. As Chief Lanier has said or the department has said in the letter Kojo read, this order -- the concerns I have with this order are nothing about the First Amendment and the rest. It's the procedures for the -- how we're going to handle evidence and whether or not we're going to be able to actually obtain the evidence and whether or not that evidence would be usable in court.
BAUMANNThe issue on the general order is there is something to place. It's called the First Amendment, and our officers understand it. They are enormously respectful of it, and as is the union. We are not a union that is run on the premise of we're going to get our officers off for bad behavior. In fact, we and the people around me have been re-elected now, I think, four times, which hasn't happened in 20 years, on the stance that we're not going to tolerate bad behavior on police.
BAUMANNAnd when you start talking about violating people's rights, for example, in the Trinidad checkpoints, we came out. And it was the rank and file officers -- and that's why I'm proud to do this job -- saying, we don't do this. We do not violate people's rights. What I'm saying is everything that is said in this order was already our policy, and everything was understood. And one of the reasons that it was understood is the reason we don't have -- or we have almost none of these events. Now, remember, we've heard the story from the caller that called in. We have this story from Mr. Spitzer's lawsuits.
BAUMANNThat's one side of the story. Most of it's anecdotal. None of this has been proven in court. You've heard what one party has to say about it. These are two events in the last five years, is the only time someone has said this about the D.C. police. My point was earlier, if you come in and want to work with the police and want us to be your partners, recognize that we'll go out and ferret out the problems on our own.
BAUMANNIf you come in and try, for publicity purposes, which has happened here, try and make it sound like the MPD has a history of violating people's rights and we haven't done this properly, you're going to antagonize us. And you're not -- we're not going to be partners going forward because we're not going to trust you. This was poorly executed. The point is everybody agrees. The First Amendment makes this clear. My officers agree. I agree. We did not need an additional order to do this. And in doing the order, what we should not have done is jeopardize criminal cases.
NNAMDIWant to get callers in on this conversation. We will start with Jim in Herndon, Va. Jim, you're on the air. Go ahead, please. Hi, Jim.
NNAMDIHi, Jim. Go right ahead.
JIMHello? Hello? Can you hear me?
NNAMDIHi. Yes, we hear you very clearly, Jim. Go right ahead.
JIMYes. I had a similar incident that happened in Northern Virginia. Am I allowed to name the police, the jurisdiction in question?
JIMOK, this was Fairfax County. And I was at home one evening when I heard the helicopter circling overhead above my property, and when I went outside, I noticed it was a Fairfax County police helicopter. And I heard voices in the woods behind my garage and saw men with flashlights back there. And so I went inside to call the police. At that moment, about 10 police cars flooded into my driveway and police started jumping out of their cars and running into the woods behind my house. And they brought out a black gentleman who was hiding in my shed behind the garage.
JIMAnd when I walked out, I had my camera in my hand, and I started taking pictures of them arresting the gentleman. An officer approached me and said, go back in the house. We'll call you when we need you. And so I went back in the house, and, a few minutes later, he called me out, asked me to come into the shed to see if there was anything missing or disturbed, which there wasn't. He asked me to identify if I knew the gentleman they had arrested. I said, no. And then he said, and I need you to erase those pictures you took.
JIMAnd he watched while I scanned through the pictures on my digital camera and hit the erase button on each one. And when I got to a picture that I had taken before they arrived of my girlfriend in a teddy wearing stockings, I said, OK, that's the end of the pictures. But he saw that one. And so my question is, is he allowed to force me to delete pictures that I took of an arrest on my own property?
BAUMANNAll right. Well, it's Fairfax. In D.C., absolutely not. I mean, I don't know any justification for that. And the only thing you can do in D.C., well, prior to this order, now, it's a little differently, would -- if you actually believed there was evidence on the camera that that evidence would -- the camera would've been taken, and the evidence would've been transferred over by our technical folks. But I -- there is no excuse for someone telling a resident, at least in the District, to erase photographs saved on a camera.
SPITZERIt's a specific provision in this order that says, under no circumstances may police erase or ask someone to erase a photograph. But I'm surprised that Kris didn't say that's the First Amendment because, certainly, as far as I'm concerned, it's no different in Fairfax or anywhere else. The police cannot ask you to erase photographs from your camera.
JIMAnd I brought that up to the officer. I asked him, don't I have a First Amendment right to take pictures on my own property? And he said, well, some of these officers are undercover, and we need to protect their identities.
NNAMDIWhat happens in a situation like that, Mickey, if officers happen to be undercover and their identities need to be protected?
OSTERREICHERYou know, I'm sitting here, and I'm listening to this. And I'm just kind of shaking my head. I just want to address a couple of things. First of all, whether there's an order or there isn't an order, I think -- and I hope that Kris would agree with me -- that on either with consent of the person and not coerced consent, not, we're going to arrest you if you don't show us the pictures, not there is eight officers standing around you in a circle and you don't feel free to go.
OSTERREICHERBut absent consent under exigent circumstances and those being you believe that there's evidence of a crime, you have probable cause to believe that on that camera is evidence of a crime either committed by the person who's holding it or of a third party, you can seize that camera. You can't search it. You can't transfer it. You can't do anything with it until you get a search warrant.
OSTERREICHERBut if you believe that there's evidence of the crime on that camera and there's a strong likelihood that if you don't seize it, it's either going to get destroyed or erased, which would be counter-intuitive to somebody that's in the news gathering capacity -- but, let's say, you're not going to find it again or it's just going to go away, you have every right to seize that equipment, and you would have that with or without this order. So I think that's one thing. The second part of this is the deletion of images and/or the disappearance of memory cards.
OSTERREICHERI think, you know, I see more and more officers exercising self-help. They understand that maybe at the end of the day that they're in the wrong, but what's the difference because if the card gets erased or, in more particular, if it gets -- if it disappears, because many times even deleted photos can be recovered, that's a real problem. And I think that it's really important to address that.
OSTERREICHERI hear more and more about officers demanding that pictures or images be erased, and that's absolutely improper. The Department of Justice has addressed that in the Sharp case, which is in Baltimore. And -- but we hear about it more and more, and it's unfortunate.
NNAMDIKris, is it very difficult to hold evidence in D.C. if the person has a camera because what Mickey seemed to be describing is a legal procedure that -- by which an officer may be able to do that?
BAUMANNI think prior to this order that, yes, we could do it. But this order does not -- one of the things Mickey talked about -- and, Mickey, I don't know if you've seen the order. But the order actually prevents the officer on the scene from even looking at the pictures. So we're not going to know if there is. Because they can't look at the pictures, the officer has to make a judgment call, but it has to rise to the level of probable cause before calling a watch commander and setting through a system to come down and keep the camera.
BAUMANNIf the individual decides to walk away during that time, we don't have any way to hold that person. So they could simply walk away and be done. That's -- again, these are the procedural problems that are going to have real impact when it comes down to us trying to use real evidence. This is -- I think what we've done here is we've impacted something that nobody intended to impact just because we didn't have a careful thorough discussion about this. There was some hysteria behind it.
BAUMANNMickey, one thing I wanted to say to you on the dilution of cards -- and I know I've heard some of these stories, and I know there are other jurisdictions out there. But in D.C., just for practical purposes so people understand, when you go to a scene, like the scene that we're discussing, one person is not going to be taking pictures or filming you. You are going to have cameras, cellphones everywhere. So if you take someone's cellphone, someone else is going to videotape it. We're -- I believe the majority of our officers are doing the right thing because they know it's the right thing.
BAUMANNBut I also believe that that is a huge deterrent, that understand if you grab someone's cellphone, someone else is going to have a picture of you doing that. And if you lie about it later, you're done. And the final thing I did want to say to Art, Art said -- when we were talking about Virginia, he said he was surprised I didn't say it's the First Amendment. One of the reasons I didn't say that is we have to keep jurisdictions in mind. I think one of the things that has become conflated here is you look to Maryland and people taping or filming Maryland police officers.
BAUMANNMaryland is not a one-party consent law, so there are different laws not specific to the police -- but Illinois is the same issue -- but overall laws that affect all citizens but are also applicable to the police. In D.C., that isn't an issue. This is one-party consent. You start to record. That's your decision. As long as you're not recording people you're not part of a conversation, that's you're right.
NNAMDIWell, I'm glad you talked about different jurisdictions having different policies because there was an incident in Baltimore at -- on which we have a clip, and there are incidents in which police have -- people have been known to provoke police in order to make a point. That is not necessarily the case here. But I'd like us to give a listen to exactly what happened in this situation in Baltimore because -- is it possible that police can simply intimidate people?
NNAMDIThe day -- in February of this year, the day after Baltimore police released their directive, affirming a citizen's right to videotape police, the police seem to have violated that directive. Before we listen to that clip, though, Baltimore's police directive actually includes an exception for provocation of police if someone "deliberately creates hazardous conditions with the intent of provoking an inappropriate police response." But let's listen to a little bit of what happened in Baltimore.
UNIDENTIFIED FEMALE ONE(unintelligible)
UNIDENTIFIED MALE ONEHey walk away. You're loitering.
UNIDENTIFIED MALE TWOReally?
ONEYou're loitering. Yes, you're loitering.
ONESir, you're standing in front of the border. I'm asking you to leave.
ONEGo walk down the street.
ONEStay on the street...
TWOAll right. And you guys do know you have a standing order to allow people to record it.
ONENobody took your phone away. You can record all you want.
ONENobody took your phone away.
TWONo. I'm just saying. I'm not asking anything.
ONEWe asked you to leave.
ONESir, you're asked to leave. I'm telling you (unintelligible) to leave.
TWOReally? Yeah, I mean, you want to get -- I'm leaving. I'm leaving. I'm leaving. I haven't -- what?
ONESir, you were asked to leave how many times?
ONETurn around and walk.
ONETurn around and walk. Give me your ID. Sir, I'm asking you for your ID.
NNAMDIWe have the video of that posted on our website, kojoshow.org. But, Art Spitzer, I heard a police officer say in that clip, we're not taking away your device. You could keep recording. On the other hand, the other officer is saying, you're loitering, leave. What do you take away from that?
SPITZERI haven't seen the video, and so it's hard to judge just from the audio. He kept saying, I'm leaving, but was he, in fact, just standing there and not leaving? And why was he ordered to leave? Did they have a legitimate basis for telling him to leave? Perhaps they did...
SPITZER...and perhaps not. So I'm sorry I can't be very helpful.
NNAMDIMickey, you know about this case, don't you?
OSTERREICHERI do. This case basically stems back to the Sharp v. Baltimore case that the ACLU also brought. And I'll try and quickly give you a little history. Mr. Sharp was at the Preakness when police officers were involved in arresting someone. He recorded that on his cellphone. The police officers seized it. They ended up deleting not only that clip but everything on his cellphone, all the images of his family, so on and so forth. We all know how many images we all keep and what personal things we have on there. He brought a suit.
OSTERREICHERThe Department of Justice back in January entered a statement of interest, talking about the right of both the press and the public to record. And they were in settlement discussions, and part of which was for the Baltimore police to implement some new guidelines similar to this general order. The -- apparently, the Baltimore police did that back in November of last year, but they didn't tell anybody about it. And they spent time supposedly training their officers, so when this -- so I believe it was on a Friday in February of this year.
OSTERREICHERThey issued a press statement talking about how they'd implemented this new general order. They trained their officers, and, literally the next day, this incident gets -- happens and gets posted on YouTube. And what it is is there were six Baltimore police officers standing around somebody on the ground. This gentleman came up with his camera, his cellphone, and was standing across the street. There was actually a street in between him -- and he was on the opposite sidewalk.
OSTERREICHEROne of the female officers looks up and, in one fluid motion, reaches for her handcuffs, comes across the street and basically says if he doesn't move, she's going to arrest him for loitering. We ended up -- NPPA ended up writing a letter questioning whether the Baltimore police had spent those three months training their officers in new ways to get around people photographing by now claiming loitering as a charge, which basically means, remaining there for no lawful purpose. I have a real problem with this. The thing is that on Monday -- so they issued the press release on Friday.
OSTERREICHERThis, I believe, happened on Saturday. They were planning on going into court on Monday and saying, Judge, we've complied with all of these requirements. We've implemented new guidelines. You should dismiss the case. It's settled. The judge would have no part of that. Subsequent to that, the Department of Justice, I believe, in May, sent the Baltimore police a 14-page letter taking apart those general orders and telling them why that they weren't adequate enough.
OSTERREICHERSo that's where things stand now. Unfortunately, we see this all the time. There's a wonderful quote from a first department case. It's -- a police officer is not a law unto himself. He cannot give an order that has no colorable legal basis and then arrest a person who defies it. So when somebody tells you something, a police officer, unfortunately...
NNAMDIWell, we've seen it in a lot of television shows, and we've seen it in real life where there's an incident occurring and a police officer says, there's nothing to see here, move on. And we immediately assume that that means we do have to move on.
OSTERREICHERAnd if you were there and you have a legal right to be there on a public street, if you are not interfering with the performance of a police officer's duty, if you're not standing too close and, again, a reasonable time, place and manner restriction, can an officer say, please move back? Absolutely. Can an officer tell you to stop recording? Well, that depends on what jurisdiction you're in, and we can talk about that later here.
NNAMDIGot to take a short break unfortunately. 800-433-850, if you have called, stay on the line. We'll try to get to your call. We're discussing photographing police. I'm Kojo Nnamdi.
NNAMDIWelcome back to our conversation on photographing police. We're talking with Mickey Osterreicher. He is general counsel for the National Association of Press Photographers. Arthur Spitzer is the legal director for the National Capital Area with the American Civil Liberties Union. And Kristopher Baumann is the chairman of the D.C. Police Union.
NNAMDIKris Baumann, as I was saying earlier to Mickey, your -- our parents taught us at a very early age when police officers give you an order, you don't talk back because the situation can escalate. So what happens if you're doing something that is completely legal, you see a police situation, you're filming it and the police officer says, sir, please leave the scene now? If you attempt to say, my legal rights allow me stay here, you are involved in what a police officer can interpret as a provocation.
BAUMANNWell, we don't have a provocation rule either through our general order or otherwise here in D.C., and people say that to us all the time. Listen, this is the nation's capital. We do -- we have -- you see some of the huge demonstrations that receive -- National Right to Life, Occupy D.C. -- these received all the attention. We have demonstrations in the city every day. Oftentimes the people demonstrating want to make their points clear either to everybody else or to the police. People say rude, unkind, harsh things to us every day, and part of our job is to accept that.
BAUMANNIf we ask someone to move and it's not an order and they say they're not going to move, well, you know, one of the things we're trained is don't order to do some -- someone to do something unless you lawfully can do it. You can ask people to comply. But if they don't comply, understand that they don't have to comply. One thing I wanted to add with -- Mickey went through a list, and I think both Art and Mickey have done a good job about talking about the reasonableness and backing up.
BAUMANNOne other area that people need to understand, a police officer may be a little ways away from his car in a traffic stop, and if you're trying to photograph into the car, we have mobile data terminals in the car. If I have run someone's background or their driver's license, their personal information can be up on that data terminal.
BAUMANNThat's another situation where we're going to advise someone to move back because it's -- I don't think anyone would argue that it's reasonable, that someone walking by could, by photograph, all of a sudden get private information about you, your home address and everything else. But, Kojo, you brought up a good point. A lot of these incidents, not all, but a lot of them stem from people that are intentionally trying to provoke these incidents.
BAUMANNAnd I would love to see how many times, particularly in D.C., Mr. Vohos (sic) -- or I think I'm pronouncing his right -- did this prior to being able to have this type of issue come forward 'cause I know he was involved in another incident with U.S. Marshals. And I think that's what people need to keep in mind.
BAUMANNA lot of these are folks -- there are websites out there dedicated to this, people who are trying to push the limits on this, trying to push themselves into police space to see what the response is. And when you're doing that, there are going to be some bad results for legitimate reasons and for reasons that probably aren't legitimate.
NNAMDINeed to go to the telephones because a lot of people have been wanting to get in on this conversation. Here is Jamie in Gaithersburg, Md. Jamie, you're on the air. Go ahead, please.
JAMIEHi. I'm a journalist, and I was arrested on Sept. 11, 2001 for taking a picture of the Pentagon as it was burning by an overzealous Pentagon police officer. And I think one of the points that Kris made is really important, that there are many, many jurisdictions in the area. And one of the importance, I think, of this general order is that it sets an example for many of those other jurisdictions.
JAMIEMy experience as a reporter has been I have often run into police or other authorities, including sometimes even security guards, who don't -- who aren't actually police officers, who don't know the law, don't understand the rights and are quick to invoke laws and prohibitions that don't exist. Pentagon is a little unique, though, because it actually does have a prohibition against photography.
JAMIEThere are signs at the Pentagon with a big camera, with a red slash through it. And the Pentagon ban on photography of the building not only extends to the building and the parking lot around it, but what the military calls the Pentagon reservation, which is the roads around the Pentagon, the hill overlooking the Pentagon. And I'm wondering why no one has ever challenged that ban on constitutional...
NNAMDIWell, Mickey Osterreicher, can you talk a little bit about what are we legally allowed to photograph in public places?
OSTERREICHERIt -- and I'm going to give you the lawyerly answer. It depends, OK? In public, my contention would be that if you can observe it, then you can photograph it. We hear this all the time. I find it very interesting that the caller just talked about 9/11. Ever since 9/11, I have been dealing with photographers who have been told, sorry, you can't take a picture of -- fill in the blank. It's usually a building.
OSTERREICHERAnd when the person asks why, they're told, well, haven't you heard of 9/11, or, don't you remember 9/11? Yes, we all remember it. But what does that have to do with anything? And the fact is that there has been this kind of scare that anybody with a camera is doing surveillance that might lead to some terrorist activity. And, unfortunately, I think that, along with the proliferation of cellphone cameras, the -- it's -- there's almost like a perfect storm of things going on where...
NNAMDIWell, we know there...
OSTERREICHER...there has been -- where there's been this assault on photography, where people actually are worried that somebody who's innocently being a tourist, taking a picture of a building. But back to what you asked me in terms of --there are certain areas that have had regulations put into place, where it's posted, so somebody's on notice. The Pentagon and those grounds are one of them. Nuclear facilities would be another.
OSTERREICHERIn New York City, the New York-New Jersey Port Authority has signs up around all the bridges and tunnels that they were enable -- they were able to promulgate these rules prior to anybody challenging them, that say photography is prohibited. Again, it's...
NNAMDIWell, allow me to ask in more general terms because, I guess, people would need clarity. It's my understanding that if you talk about, say, shopping malls, that if they're technically private property such as a store, shopping mall, sports arena, theater, then you need permission from the property owner to photograph.
NNAMDIBut national, state and local museums, art galleries, government buildings and libraries, even if perhaps technically owned by the public, it's my understanding, are still private property in this context, and photography there may be restrictive -- restricted. Sensitive military installations and most things in airports are off-limits. All of that correct?
OSTERREICHERWell, no, not the airports. The -- again, it depends on who owns that property. For example, at the JFK terminals, the New York-New Jersey Port Authority actually owns the property and leases it back, so those rules about photography would be into place. But I -- and if you're on somebody's property that is private property, that's one thing. And then you could be charged with trespassing. But there -- unless it's posted and there's actually a regulation in place that says you can't take pictures, the mall would be a good example.
OSTERREICHEREven though the public is invited in, it doesn't necessarily mean that you are allowed to take pictures without permission. It's a tough area. You know, in Silver Springs, there was a case a few years ago where there were streets that appeared to be public streets, yet they were, in fact, owned by a private corporation. And a photographer who was taking pictures was told by a security guard that he couldn't and challenged that.
OSTERREICHERAnd, basically, the court held that it kind of -- it looks like a public street. It sounds like a public street. It is a public street. And unless it's posted, you're allowed to take pictures there.
NNAMDIArt Spitzer, we've heard a variety of situations discussed so far. Is there any simple rule that the citizen, the average citizen who now has a camera on his or her device, should take away from all of this?
SPITZERWell, one simple rule is if a police officer tells you that you're going to be arrested unless you stop doing something, then you get to choose whether to stop doing it or to probably get arrested, as a practical matter. And then, of course, after that, you can call the ACLU, and we'll try to hash it out. In general, if you're in a public place where you have a right to be, then you should be able to take photographs and make recordings of what you can see and hear in that public place.
SPITZERSure, if there's a big sign that says you can't take pictures of this mechanical device here that controls the water or the electricity or something like that, common sense would tell you that maybe there's a good reason for that prohibition. But most things in the world are not off-limits to recording.
NNAMDIKris Baumann, do the police officers of the District of Columbia have the kind of training in the wake of these guidelines that you feel that any citizen should feel safe filming or shooting police officers as they're carrying out their duties?
BAUMANNI think they had it before. The guidelines just came out. But, again, these are not new policies. Outside the procedures of handling evidence, they've been there. And I think -- you know, Art earlier talked about even if it happens 100 times. Well, I've seen one documented case in the last five years. And, again, we're talking about millions and millions of interactions every day.
BAUMANNAnd if you go out there, if you go to a crime scene or walking by a crime scene, I think a normal citizen would be stunned at how many cameras are out. It is just a fact of life in this city now, that when you're out there as the police and you're at a scene, you are going to be filmed, you're going to be photographed, and you're going to be recorded. And that's the way it is, and that's what the law says. It has to be that way.
NNAMDIA fact of life that still seems to make some police officers feel uncomfortable. Mickey Osterreicher, what do we need to be doing better?
OSTERREICHERWell, you know, people ask me all the time, you know, what are my rights? You just asked it. And I can explain rights to people all the time. I could probably give somebody an original of the Bill of Rights, and you could have it in your hand. The more important thing is whether or not the officer understands your rights and cares about them.
OSTERREICHERI would absolutely have to say that the D.C. police -- you know, my experience with them has been that they are very progressive. But I think that Kris will admit that -- I hope -- and understand I did a training with about 40 officers back in January. You know, at first, they were very skeptical. By the end of the four hours, I...
NNAMDIWell, I think that music indicates we've progressed as far as we can go.
NNAMDIMickey Osterreicher is general counsel for the National Association of Press Photographers. Kristopher Baumann is the chairman of the D.C. Police Union. And Arthur Spitzer is the legal director for the National Capital Area with the American Civil Liberties Union, ACLU. Thank you all for joining us. And thank you all for listening. I'm Kojo Nnamdi.
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