Governments and Rent-A-Cops Harass Photographers

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June 29th, 2009 Leave a comment Go to comments

Readers of our website know we’re concerned about the erosion of Constitutional rights in the United States. It’s commonplace for American governments to violate Constitutional and federal law protections for due process, equal protection under the law, unreasonable search and seizure, and innocent until proven guilty in cases involving alleged child abuse and divorces with contested child custody. But the erosion of civil liberties is spreading far beyond family law.

While researching another article I’m writing, I ran across an article from the Washington Post which really disturbed me. Whether you’re an architecture student or common citizen, you now have reason to be fearful of government oppression if you snap a picture of a building while taking a walk on a public sidewalk or a drive on public streets. Taking such pictures is in no way unlawful. First Amendment rights and court cases have established that taking photographs from public areas, especially outdoors, is lawful. But that doesn’t stop law enforcement and especially security guards who sometimes illegally impersonate police officers for intimidating and even assaulting photographers who are not breaking any laws.

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Arlington County Police Intimidate Photographer Keith McCammon

Here’s a photo of off-duty police officer Frank Malara who allegedly confronted photographer Keith McCammon.

McCammon was a private citizen taking photographs of building in Arlington, Virginia, while walking down the street in May 2007, as he explains in this email to police:

(from Email from Keith McCammon to Arlington, Virginia police)

[This text originally submitted to District 2 captain Kevin Reardon via e-mail on 9 May 2007.]

I was photographing the area surrounding the Virginia Square Metro station on 5 May 07 at approximately 1030. Among the prominent buildings in this area is 3701 N. Fairfax Dr. As I approached this location, I was immediately flagged down by an Arlington County patrol unit, and summoned by the officer to approach his vehicle, which I did without complaint.

Upon approach, the officer (Malara) inquired as to why I was photographing this location. I explained that I was just finishing an entire morning of photography in a variety of Arlington neighborhoods. Officer Malara then explained that this was a “high security facility” and requested that I delete anyphotographs that included detail of this particular building. As I hadn’t yet taken any, there was nothing to delete.

Officer Malara requested identification, which I provided in the form of a valid Virginia driver’s license. I was then asked for my Social Security number, which I provided. Officer Malara’s notes should reflect that I complied with these, and other ancillary requests without hesitation. As Officer Malara transcribed my information, I requested that he explain exactly why it was that he was collecting this information. Specifically, I asked which code section or stated prohibition, if any, I had violated. There are no signs that would lead one to believe that this facility is sensitive, nor are there any posted warnings indicating that photography of this location is in any way prohibited. I was taking photographs from a public space. In response to the above, he explained that this is a “high security area,” and that he is required to request and record identifying information from individuals who are witnessed taking photographs that may include the building at 3701. And, once asked for identification by a law enforcement official, noncompliance is, in and of itself a crime (a statute of which I am well aware, and with which I complied). In an effort to better understand how my information is being used, I hereby request (electronically, if possible, or by U.S. Mail):

– a copy of any and all notes, reports, or other documents including my personal information that are in any way related to this incident.

– that I be provided with a point of contact at any other agency or office to which this incident has been reported.

– the full name badge number of the officer involved (Malara).

– the badge number of his commanding officer (Capt. Kevin Reardon).

As an aside, I’d like to point out that at no time was officer Malara confrontational or otherwise unprofessional. To the contrary, he was courteous, professional, and offered answers to any and all questions asked of him without hesitation.

Thank you in advance for your time and attention to this matter.

Regards,
Keith W. McCammon III
[address]
[e-mail]
[phone]

Intimidation of Public Photographers is Common

I myself have encountered similar behavior from misinformed private citizens on American soil who told me that I could not take a photograph of an office building which they claimed to manage. It was at the location of a car accident with police units present. One of them got upset, tried to be physically intimidating, and vaguely threatened me because I had pointed my camera in the direction of the multistory office building they claim to manage.

The “average Jane or Joe” on the streets of America knows little to nothing about the law. I’ve come to believe American governments like it that way. Uninformed citizens are easier to bully, intimidate, threaten, and control. These increasingly common tactics of American law enforcement used on even non-threatening citizens who haven’t broken any laws. Sadly, such abusive tactics are common to many other nations, too.

However, being a person who hadn’t come into contact with the many criminals in American governments on a frequent basis until a divorce made it unavoidable, I had assumed that police officers would not be so blatantly outrageous about harassing a person for taking a picture of an office building from a public sidewalk as in the case if Keith McCammon.

While I’m not aware of exactly what the laws are for public photography in China, it’s clear that whatever they are the public there has weird ideas of what is permissible and what is not, just like Americans do. I’ve had the experience of being chased down and vaguely threatened by a restaurant employee who demanded that I not take pictures of the restaurant from the inside public corridor/atrium of the airport terminal. I was taking a picture of a friend in the airport with the restaurant merely in the background. It is ridiculous to assert that this is not permissible.

Malara May Have Violated McCammon’s Civil Rights

Malara was off-duty and hired outside of his employment as a police officer when he demanded identification from Keith McCammon. This is admitted by Daniel J. Murray, Acting Chief of Police in a letter to McCammon:

It is my understanding that your encounter with Detective Malara was precipitated by the belief that you were taking photographs in the 3700 block of North Fairfax Drive. As Detective Malara explained to you, one of the buildings in this immediate area is a government installation which hires off-duty police officers, in addition to security officers, to ensure the safety of its occupants. On the date in question, Detect Malara was working this assignment.

Later, the Chief admits that Detective Malara passed along information collected from Mr. McCammon using his position as a police officer to his non-police employers:

As the conclusion of your encouter with Detective Malara, he did not complete any police reports and there are no allegations that you committed any criminal act(s). Detective Malara did provide your information to the internal security agency for this installation. Should you require additional from this security agency, I would recommend that you contact Mr. John Campbell, the Director of Security, at (571) 218-4660.

Passing along such information collected in the course of police action to a private party may be illegal in many places. If it had been documented in a publicly obtainable police report, that’s another case as police reports are generally recorded as public records that can be obtained by request of citizens. But this wasn’t the case, as admitted by the police. That this wasn’t a police action was obviously being concealed given Malara’s status as a rent-a-cop, the use of an Arlington County police car, and Malara wearing his police uniform and identifying himself as a police officer. All of this makes it look like Malara is acting as a police officer, but this was not the case.

Conspiracy to Violate Civil Rights by Malara, Arlington County, DARPA, and US Government

Although the Arlington Police think they didn’t do anything wrong, this is questionable. The Arlington Police, the United State Government, DARPA (Defense Advanced Research Projects Agency), and Detective Frank Malara may have violated the civil rights of Keith McCammon in the following areas discussed on the web site of the United States Federal Bureau of Investigation covering Civil Rights Statutes).

Title 18, U.S.C., Section 241
Conspiracy Against Rights

This statute makes it unlawful for two or more persons to conspire to injure, oppress, threaten, or intimidate any person of any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the United States, (or because of his/her having exercised the same).

It further makes it unlawful for two or more persons to go in disguise on the highway or on the premises of another with the intent to prevent or hinder his/her free exercise or enjoyment of any rights so secured.

Punishment varies from a fine or imprisonment of up to ten years, or both; and if death results, or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title or imprisoned for any term of years, or for life, or may be sentenced to death.

McCammon was clearly intimidated and alarmed by Malara’s identification of himself as an on-duty police officer who then ordered him under color of law to disclose personal identifying information and then proceeded to release this possibly illegally obtained personal information to his non-police employers who have no law enforcement jurisdiction.

DAPRA, the United States Government, and the Arlington County Police Department obviously know that off-duty police officers are using government property to represent themselves as on-duty police while they are working outside of their employment as police officers. This makes all of them possible co-conspirators under 18 U.S.C. Section 241 Conspiracy Against Rights.

Title 18, U.S.C., Section 242
Deprivation of Rights Under Color of Law

This statute makes it a crime for any person acting under color of law, statute, ordinance, regulation, or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities secured or protected by the Constitution and laws of the U.S.

This law further prohibits a person acting under color of law, statute, ordinance, regulation or custom to willfully subject or cause to be subjected any person to different punishments, pains, or penalties, than those prescribed for punishment of citizens on account of such person being an alien or by reason of his/her color or race.

Acts under “color of any law” include acts not only done by federal, state, or local officials within the bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their lawful authority; provided that, in order for unlawful acts of any official to be done under “color of any law,” the unlawful acts must be done while such official is purporting or pretending to act in the performance of his/her official duties. This definition includes, in addition to law enforcement officials, individuals such as Mayors, Council persons, Judges, Nursing Home Proprietors, Security Guards, etc., persons who are bound by laws, statutes ordinances, or customs.

Punishment varies from a fine or imprisonment of up to one year, or both, and if bodily injury results or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined or imprisoned up to ten years or both, and if death results, or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

Malara’s actions appear on their face to be a possible violation of 18 U.S.C. Section 242 Deprivation of Rights Under Color of Law. This law very clearly states that purporting to act with authority of law by police or security guards while causing deprivation of civil rights is illegal:

Acts under “color of any law” include acts not only done by federal, state, or local officials within the bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their lawful authority; provided that, in order for unlawful acts of any official to be done under “color of any law,” the unlawful acts must be done while such official is purporting or pretending to act in the performance of his/her official duties. This definition includes, in addition to law enforcement officials, individuals such as Mayors, Council persons, Judges, Nursing Home Proprietors, Security Guards, etc., persons who are bound by laws, statutes ordinances, or customs.

By specifically naming law enforcement officials and security guards, it is clear the federal legislation was intended to apply to both roles held by Frank Malara. Malara portrayed himself as acting as a police officer when apparently by the Police Chief’s own statements he was not working for the Arlington County Police Department at the time.

Title 42, U.S.C., Section 14141
Pattern and Practice

This civil statute was a provision within the Crime Control Act of 1994 and makes it unlawful for any governmental authority, or agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers or by officials or employees of any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.

Whenever the Attorney General has reasonable cause to believe that a violation has occurred, the Attorney General, for or in the name of the United States, may in a civil action obtain appropriate equitable and declaratory relief to eliminate the pattern or practice.

Types of misconduct covered include, among other things:

1. Excessive Force
2. Discriminatory Harassment
3. False Arrest
4. Coercive Sexual Conduct
5. Unlawful Stops, Searches, or Arrests

The wording of 42 U.S.C. Section 14141 is confusing, but it seems there is a way to read it that makes Malara and the Arlington County Police subject to prosecution by the United States Attorney General for an unlawful stop of McCammon.

The government of Arlington County, Virginia, would be very wise to stop allowing their police officers to wear police uniforms during employment outside of their police duties and to prohibit the use of police cars for such employment, also. They are running the risk of a civil rights lawsuit for this type of conduct that could cost the citizens of Arlington County, Virginia, a considerable amount of money to defend and in damages if they lose the lawsuit. Additionally, the police are making themselves liable for criminal conduct against the civil rights laws of the United States.

Physical Assault by a Rent-A-Cop

McCammon’s case is worrisome, but Malara didn’t physically assault him. The same can’t be said for the rent-a-cop who falsely identified himself as a police officer and then proceeded to physically assault photographer Thomas Hawk in San Francisco.

In the above photo, the man on the right is the private security guard who allegedly falsely identified himself as a police officer and allegedly physically assaulted Mr. Hawk.

You can read more about this experience at Hawk’s web article PHOTOGRAPHING ARCHITECTURE IS STILL NOT A CRIME, POLICE HARRASMENT AT 45 FREMONT STREET. Apparently he is routinely harassed for taking public photographs in San Francisco, at least once a month, and generally by private security guards.

I hope that the police investigation of this matter resulted in prosecution of the private security guard for illegal impersonation of a police officer and physical assault. However, it’s disheartening that I didn’t find such information on Hawk’s website.

UK: Assault and Arrest Photographers Who Ask for Badge Numbers

Public photography serves a very real protection function for citizens in free nations. This is amply demonstrated by this disturbing case of photographers being assaulted and arrested at a power plant protest in United Kingdom on April 8, 2008.

Arrested for asking a policeman for his badge number

The Guardian has obtained this police footage of Emily Apple and Val Swain being arrested by surveillance officers after asking for their badge numbers at the Kingsnorth climate camp last year. The two women speak to Paul Lewis about their arrest, imprisonment and official complaint.

Yet as police state behavior goes, even photographing and distributing evidence of illegal government harassment is not adequate. Governments, whether they be American or British or some other nationality, frequently refuse to punish abusive law enforcement officers as discussed in the article about the wrongful arrests of Emily Apple and Val Swain:

Transparency means nothing without justice: The footage of police action at last summer’s Climate Camp – and the lack of response since – demonstrates the limits of a cyber-liberty dream.

Excerpt:

The video showed police harassment of journalists, beatings dealt to unresisting peaceful protesters, humiliating and unwarranted search procedures, unjustifiable seizure of personal property, and so on. The police – 1,400 officers from 26 forces – justified all this force by characterising the Climate Campers as violent rioters, noting that 70 police officers had been injured while on duty at the event (it was subsequently revealed that the officers were “injured” by sunstroke, insect bites, etc – no injuries are attributed to scuffles with the protesters).

And here’s where transparency breaks down. We’ve known about all this since last August – seven months and more. It was on national news. It was on the web. Anyone who cared about the issue knew everything they needed to know about it. And everyone had the opportunity to find out about it: remember, it was included in national news broadcasts, covered in the major papers – it was everywhere.

And yet … nothing much has happened in the intervening eight months. Simply knowing that the police misbehaved does nothing to bring them to account.

Stopping Government Abuses

It’s clear that protection of rights requires government officials who act wrongly to at a minimum be re-trained and when appropriate punished and/or terminated from their jobs. My personal opinion is that government officials who are in law enforcement and courts should be held to a high standard. Otherwise, we end up with atrocities ranging from minor like this one to major like the Pennsylvania judges who took $2.6 million in bribes to toss children into private jails by violating their due process rights.

Punishment for government officials who violate the law and cause undue harm to others should be more severe than if a similar crime had been committed by a private citizen. Most of the photographer’s rights violations described in this article probably deserve a written reprimand, re-training on the law, and possibly some punitive damages via a non-trivial fine (perhaps $1000?) to be paid to the aggrieved citizens. The security guards impersonating police deserve more significant fines ($5000?) and/or jail time (60 days?). Security guards physically assaulting citizens deserve even more severe punishment.

For the New York government doctor who committed perjury with intent of helping to obtain a false conviction for child sexual abuse and similar people like her such as the lying CPS social workers and DA prosecutors who knowingly or negligently wrongfully prosecute an innocent person, what seems appropriate is severe fines and damages ($100,000 to $10 million?), revocation of licenses, blacklisting from government jobs, and imprisonment. At a minimum, the public deserves to have these people permanently banned from ever again holding a role in which they can abuse the rights of others.

Yet nothing at all punitive was done regarding the perjuring government doctor, the perjuring CPS social workers, or the malicious DA. For the extreme repeat violators like the corrupt Pennsylvania juvenile court judges, it looks like some relatively small amount of federal prison time will be the result. Yet given their crimes against thousands of children, it’s not enough. The death penalty seems suitable, yet it is apparently not even available as a legal remedy. Until government officials are held accountable to pay severely for serious breaches of the law, I don’t believe the corrupt and abusive nature of government will improve significantly.

Photographer’s Rights

Governments obviously aren’t going to stand up for the rights of photographers. The first step for photographers obtaining lawful treatment is for them to know the law. Lawyer, photographer, and author Bert P. Krages II has made available a single page flyer discussing the rights of photographs at his web site The Photographer’s Right: A Downloadable Flyer Explaining Your Rights When Stopped or Confronted for Photography.

Krages wrote the book Legal Handbook for Photographers: The Rights and Liabilities of Making Images to explain many legal issues surrounding photography, including the rights to public photography:

Legal Handbook for Photographers is written from the perspective of a photographer who has actually confronted the legal issues that many photographers face. This book explains the fundamental legal principles that affect the rights to make images, and is intended to increase your comprehension of how the law affects photography. In addition, the book provides guidance on how to handle confrontations, obtain remedies if wronged, and develop an ethic that reflects your individual approach to photography. It also explains the importance of copyright protection and the legal issues associated with publishing and licensing images.

Beginning with the basic laws that govern photography, this legal manual helps photographers understand the basic matters of access and privacy, covering issues such as shooting images on private property, consent, and the photography of public groups. Subjects addressed include the legalities of photographing currency, stamps, securities, trademarks, seals, and insignia; military and nuclear installations; copyrighted materials; children; and animals. This updated handbook closes with a helpful glossary that decodes complicated legalese.

Another legal guide on photography entitled The Professional Photographer’s Legal Handbook by author Nancy Wolff spends more time on the copyright issues and not as much as photographer’s rights:

Want to make a living in photography? Anyone who does needs this indispensable guide to licensing picture rights. In this accessible and entertaining book, expert Nancy E. Wolff explains copyright, trademark, contracts, and privacy. Real-world examples of cases, laws, and news items torn from today’s headlines illustrate the most urgent legal situations faced by photographers: requirements, limits, and enforcement of copyright and trademark; fair use and public domain; first amendment considerations; the law of privacy and publicity; and many more issues. Detailed information on drafting contracts and licensing agreements is included. The imprimatur of the Picture Archive Council of America assures readers that the information is comprehensive and up to the minute. The Professional Photographer’s Legal Handbook is an essential tool for everyone who works in photography—and everyone who wants to.

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