This guest post is by Mickey H. Osterreicher, general counsel for the National Press Photographers Association (NPPA), representing 7,000 visual journalists throughout the country.
Unfortunately, the incident involving Dominic Holden and King County Sheriff's Office Sergeant Patrick "K.C." Saulet is all too common an occurrence throughout this country. What is particularly disappointing is that as a supervisory officer, the sergeant should have known better. While it might have been reasonable for Sgt. Saulet to ask Mr. Holden to step back a few feet, it was a clear violation of Mr. Holden’s constitutional rights to be ordered to leave a public sidewalk under threat of arrest. As stated in a decision by the US Circuit Court of Appeals for the 1st Circuit, “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.” Threatening to do so is just as egregious.
The First Amendment is not absolute but rather subject to reasonable “time, place and manner restrictions.” Ever since 9/11 there has been a heightened awareness of anyone taking pictures or recording events in public. This issue has only been exacerbated by the widespread proliferation of cellphone cameras and the ability of anyone to post photos and recordings on the internet. Many in law enforcement still have the erroneous belief that they can order people to stop taking pictures or recording in public. Interference and in some cases arrests stemming from those actions have led to a number of court cases resulting in: six-figure settlements, new policies and procedures and sometimes serious disciplinary actions against the officers involved.
In one such case that cost the City of Boston $172,000 the court stated “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.” “Gathering information about government officials in a form that can be readily disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.’” And that is exactly what Mr. Holden was doing when he was accosted by Sergeant Saulet.
The US Department of Justice has also taken note of these incidents and supports the position that the public and members of the media have a “coextensive” First Amendment right to record police officers performing public duties. The DOJ also stated “the derogation of these rights erodes public confidence in our police departments, decreases the accountability of our governmental officers, and conflicts with the liberties that the Constitution was designed to uphold.” While the press may not have a greater right of access than the public they have no less right either. For the sergeant to have singled out a member of the media with a camera is a clear abridgment of those First Amendment rights.
Reviewing the online KCSO General Orders Manual it appears that under “Media Relations,” “Public Photography and Videos” and “Citizen Observation of Deputies” the current guidelines clearly set forth that “Department members should not interfere with photography so long as the photographer is where he/she has a right to be . . .” and that “detention of an individual engaged in photography or videotaping should only occur if deputies can articulate that the person is engaged in photography or videotaping for some terrorism or other crime related purpose.” It is also the stated “policy of the Sheriff’s Office that people not involved in an incident may be allowed to remain in proximity of any stop, detention or arrest, or any other incident occurring in public so long as their presence is lawful . . .” and “deputies shall recognize and obey the right of persons to observe, photograph, and/or make verbal comments in the presence of deputies performing their duties . . . .”
Without ongoing training and discipline where appropriate these policies are just empty words. In any free country the balance between providing police protection with integrity and over-zealous enforcement is delicate. It is one thing for deputies to act when there is reasonable suspicion; it is quite another to abuse that discretion by chilling free speech and creating a climate of fear and distrust under the pretext of safety and security.
In a time of technology and terrorism, citizens and visual journalists throughout the world have risked and in some cases given their lives to provide visual proof of governmental activities. Sadly, what is viewed as heroic abroad is often considered as suspect at home. It is therefore incumbent upon the Sheriff’s Office to do a better job of training its deputies and enforcing its own policies regarding the rights of the press and the public. To that end the NPPA offers its assistance as we have with many other law enforcement agencies around the country with the hope of avoiding similar situations.
About the author: As a uniformed reserve deputy with the Erie County Sheriff's Department since 1976 and a former photojournalist in print and broadcast for almost 40 years, Osterreicher brings a unique perspective to this growing problem. He has helped develop guidelines and policies for a number of departments including the Miami Beach and D.C Metro Police Departments. Mickey has done presentations for the IACP and Georgia Chiefs of Police and has provided training for the Chicago PD, Tampa PD and Charlotte-Mecklenberg PD in preparation for last year's NATO Summit and the national political conventions held in those respective cities.