Photographing the police

by Chris Bertram on April 8, 2009

I’ve posted before about harassment of photographers by police, para-police, security guards etc. The latest panic in the UK has concerned section 76 of the Counter-Terrorism Act 2008. I’m inclined to think this is actually less of a problem than random and unlawful action by police officers, and the British government, in the shape of Shahid Malik MP (Parliamentary Under-Secretary of State for the Home Department) has told us all to calm down, in the following terms

It makes it an offence to elicit, attempt to elicit, publish or communicate information about an individual who is or has been a constable, or a member of the armed forces or intelligences services. The information must be of a kind that is likely to be useful to a person committing or preparing acts of terrorism. It has been suggested that the new offence could criminalise people taking or publishing photographs of police officers. A photograph of a police officer may fall within the scope of the offence, but would do so in only limited circumstances. The offence is designed to capture terrorist activity directed at members of the protected groups, which, sadly, we know occurs. An offence might be committed, therefore, if someone provides a person with information about the names, addresses or details of car registration numbers of persons in the protected groups. The important thing is that the photographs would have to be of a kind likely to provide practical assistance to terrorists, and the person taking or providing the photograph would have to have no reasonable excuse, such as responsible journalism, for taking it.

Well now we have a very good example of why it is important for the public to have the freedom to photograph and film the police: in order to gather evidence against them of violent and oppressive conduct. The Independent Police Complaints Commission has appealed people who have film or photographs of the events leading up to Ian Tomlinson’s death. It would be perverse if the taking of those photographs were itself a crime.

{ 38 comments }

1

Stuart 04.08.09 at 11:39 am

Of course the problem is always that the explanation for the law is always very reasonable, and then anti-terrorism laws are used to freeze the UK assets of Icelandic banks, showing that the intent and supposed interpretation of a law and how it is actually used often have very little in common.

2

Jono 04.08.09 at 11:54 am

I’m all for beating the government up about things they have done, but the Anti-terrorism, Crime and Security Act 2001 has one of its purposes listed as “to provide for the freezing of assets”, which is separate from the anti-terror purposes. They weren’t branding the Icelandic banks as terrorist organisations. More at Wikipedia:

http://en.wikipedia.org/wiki/Anti-terrorism,_Crime_and_Security_Act_2001#Usage_against_Iceland

3

soru 04.08.09 at 12:35 pm

What’s the source of the ubiquitous idea that oppressive governments work solely by cleverly reinterpreting existing laws, never by either passing new ones, or simply ignoring the perfectly clear existing laws against beating someone to death with a stick?

4

Stuart 04.08.09 at 1:08 pm

“They weren’t branding the Icelandic banks as terrorist organisations.”, but they were using provisions of the “Anti-terrorism, Crime and Security Act 2001”. Right, weasel out on technicalities and prove my point at the same time.

5

Pete 04.08.09 at 1:48 pm

It won’t be as overt as arresting the people who took the incriminating photos and video, but watch for attempts to throw it out as evidence on the grounds that it was obtained illegally…

6

deliasmith 04.08.09 at 2:01 pm

Pete: the phrase ‘throw it out as evidence’ implies a trial. There ain’t gonna be any trial – policemen who kill people are not tried in this country.There will not even be any disciplinary process – the policemen will be found not to be identifiable.

7

Alexei McDonald 04.08.09 at 2:35 pm

“policemen who kill people are not tried in this country” ; except when they are, of course. Also from today’s press:

http://news.bbc.co.uk/1/hi/england/tyne/7990188.stm

8

Stuart 04.08.09 at 2:37 pm

There will not even be any disciplinary process – the policemen will be found not to be identifiable.

This is hardly always the case – uk police officers get sacked for various types of misbehaviour on a fairly regular basis. 44 in 4 years for NI (excluding junior/probationary officers) and plenty of examples from other forces (couldn’t easily find any stats though) 1 2 3 4 5 6

9

engels 04.08.09 at 2:43 pm

For anyone who may not seen the video footage of a police officer assaulting Ian Tomlinson minutes before his death from a heart attack, it is available here.

The film of Tomlinson being attacked from behind and violently thrown to the ground by a police office in full view of several other officers can be contrasted with the official statement of the Metropolitan police on the day of his death, which

made no reference to any ­contact with officers and described attempts by police medics and an ambulance crew to save his life after he collapsed – efforts which they said were marred by ­protesters throwing missiles as first aid was ­administered .

10

engels 04.08.09 at 2:45 pm

Sorry Chris, I am not sure how I missed your link in the post…

11

Eszter 04.08.09 at 3:23 pm

Yikes.

So how far is this supposed to extend about the photos of police? What if there is a police officer in the background of a shot? It doesn’t seem realistic for people out there to be looking around in their viewfinders making sure that there is no police presence on any photos. (It’s rather clear from a lot of photos out there that many people tend to forget about the background in photographs.)

12

Chris E 04.08.09 at 3:39 pm

Of course, in reality the police will seize film first and then act later.

“Sorry sir – but your camera fell down the stairs and repeatedly jumped into a cup of coffee”

13

Paul 04.08.09 at 4:11 pm

Cameras, unlike human beings, do not lie. I am all for them.

14

Chris Bertram 04.08.09 at 4:20 pm

#10. I think a lot of the reaction of the photographic community to the law is pretty paranoid and the claim that it is generally illegal to take pictures of the police is false. But that isn’t to say that the police won’t take advantage of the law when it suits them (and this would be one such case, if they could get away with it).

15

koan0215 04.08.09 at 4:23 pm

Oh wow that video makes me rage. One would think that at some point in their riot-control class the instructor would have pointed out that “hitting people on the legs with a nightstick from behind” and “pushing chubby middle-aged guys onto the ground for no particular reason” are not effective PR tactics.

16

Equalist 04.08.09 at 4:43 pm

These violent by Police problems become a major issues in my country Indonesia lately.
The violent act happened not only by a police to a society, but also happened among themselves.
Best Regard

17

P O'Neill 04.08.09 at 5:28 pm

Apart from anything else, the policeman who hit Tomlinson has his head almost completely covered, so it’s not clear what threat he would have faced from photography independently of his actions on that day.

18

mcd 04.08.09 at 5:44 pm

Some people have said it’s not about photographing police as such , but only when it involves the War on Terror. But that’s the problem. It should be clear now the War on Terror can be whatever governments want it to be.

19

Es-tonea-pesta 04.08.09 at 6:10 pm

The word “Terror” is the opposite of the word “Police”, right? So, there you go.

20

giotto 04.08.09 at 6:15 pm

As more and more of these events pile up, I increasingly think that ALL police should be videotaped at ALL times when on duty. Here in Canada the Royal Canadian Mounted Police are under fire for, essentially, murdering a Polish immigrant in the Vancouver airport. They tasered him to death and then began the usual cover-up. A recent inquiry found that the officers’ accounts of what happened are contradicted by a video taken by another passenger. Without that video, the RCMP would have skated by on its lies; unfortunately even with the video, we can expect little in the way of justice. I’m with deliasmith: the police usually do get away with murder.

21

NomadUK 04.08.09 at 6:47 pm

We here are, of course, waiting with bated breath for the results of the intensive study of CCTV footage which is, no doubt, currently being conducted by the authorities in a relentless search for the identity of the police officer involved.

22

JoB 04.08.09 at 7:01 pm

When the misery of the crisis hits the streets for real the very same secretary will be so very quick to point out that with rioting going on in the streets ‘one unfortunately can’t but speak of a condition of terrorism’. Even worse: if delivered with good propagandist timing he’ll be able to get thousands of votes out of it. The only chance we have is to go and raise hell about it now because by the time it is too late it will be too late.

23

MarkUp 04.08.09 at 7:27 pm

“Cameras, unlike human beings, do not lie. I am all for them.”

Like a pen, they don’t tell the truth either, unless so directed.

There is seemingly more going on that what is represented by the video. Both parties/sides will do there best to skew for their team.

Without doubt the clip is damning as is supporting evidence, but the whole of the story is not out. Tragic the guy died. Sad that there was a need for the protest. Ironic the source of the clip.

24

Stuart 04.08.09 at 7:54 pm

Coincidentally someone taking photos of a police officer carrying secret documents in open view has forced the police to arrest 10 people today. I would imagine this is going to botch up quite a few cases involved having to move so pre-emptively (wouldn’t be surprised if most or even all of the 10 arrested have to be let go, whether or not they really are guilty of anything). Doesn’t really relate to this law I guess (except in the most paranoid versions), but was a weird bit of synchronicity I thought.

25

BenP 04.08.09 at 8:12 pm

“policemen who kill people are not tried in this country” ; except when they are, of course. “

Small solice she wasn’t Black or Brazilian or Irish or…..

26

c.t.h 04.08.09 at 8:21 pm

I find the vast varieties interpretation possible for the phrase “responsible journalism” especially chilling. It dose not likely mean simply having a press pass, not that it would take the edge off much if it did.

27

Chris E 04.08.09 at 8:31 pm

In further related news:

http://www.guardian.co.uk/media/2009/apr/08/g20-protest-police-apology-photographers

An apology after the event is better than damning evidence, isn’t it ?

28

salient 04.08.09 at 8:34 pm

From the Act:
(1) A person commits an offence who— elicits or attempts to elicit information about an individual who is or has been— (i) a member of Her Majesty’s forces, (ii) a member of any of the intelligence services, or (iii) a constable, which is of a kind likely to be useful to a person committing or preparing an act of terrorism, or publishes or communicates any such information.
(2) It is a defence for a person charged with an offence under this section to prove that they had a reasonable excuse for their action.

It could be argued any evidence of police brutality or misconduct is automatically “likely to be useful to a person preparing an act of terrorism,” because its dissemination may weaken popular support for the state and is therefore useful in propaganda.

So, I think any attempt to use this law to cover up police brutality would hinge on the interpretation of “reasonable excuse” — but frankly, it seems reasonable to suppose that Chris is right, as “reasonable excuse” ought to be broad enough to justify photographs of police that either are incidental (as Eszter mentioned) or are documenting an event (as in the case of police misconduct).

29

Ginger Yellow 04.09.09 at 3:37 am

“I think a lot of the reaction of the photographic community to the law is pretty paranoid and the claim that it is generally illegal to take pictures of the police is false”

I’d have a lot more sympathy for this line of argument if the police didn’t already routinely harass and seize film from people photographing them. I imagine anyone who attends heavily policed football matches will have seen this first hand on several occasions. I certainly have. As it is, there have already been reports of arrests (though no charges that I’m aware of) under the new law during the G20 event. And of course the point (as far as the police are concerned) isn’t the conviction, it’s the prior restraint.

30

Tom T. 04.09.09 at 4:32 am

Coincidentally, in Philadelphia just now there’s video-related controversy over a police raid on a convenience store. The police stormed in on an apparent pretext and cut the wires to all eight of the store’s security cameras (as, in fact, the cameras recorded them doing). They hauled the owner away, and then the officers allegedly robbed the place of $10,000 in cash, cigarettes, and snacks.

31

Dan O'Huiginn 04.09.09 at 7:28 am

It is, I believe, accepted that in court, MPs statements on what a law was intended to mean have no impact on how it is actually interpreted by the courts. Shahid Malik MP’s interpretation of the law is of no more importance than mine or yours. If he uses his position in the Home Office to, for instance, issue guidance to the police on how they are expected to interpret the law, with penalties for police who use it as an excuse to stop all photograph, then we should pay attention.

As it is, Malik interpreting ‘reasonable excuse’ to include ‘responsible journalism’ is meaningless – it has no impact on the meaning of the law, and (more importantly) no impact on police behaviour. There are already many, many documented instances of police hassling photographers — including an MP. This is IMO, almost always a bad thing, and it will become much more common because of this legislation.

32

Chris Bertram 04.09.09 at 8:15 am

#30 Not quite true since Pepper v Hart

http://en.wikipedia.org/wiki/Pepper_v_Hart

though Malik’s statements are subsequent to the adoption of the law and so I think you’re right about that. As I understand it, the guidance is issued by the Home Office and ACPO and they’ve been working with photographers to draft it in such a way that it will not be oppressive.

#28 I think it is important that photographers stand their ground with the police where the police are acting unlawfully, as they usually are in these kind of cases. As for the provisions in the new act (that don’t actually mention photography of course) they haven’t been tested, no-one knows if they conflict with human rights legislation, and the police would be bound to act in accordance with the guidance they were issued (or the courts would deem them to have acted unreasonably).

33

Alex 04.09.09 at 10:15 am

The operational solution adopted by the Met is to demand your camera as “evidence” of a crime, which can always be thought up (hooting and making sudden rushes, Town Police Clauses Act 1847), and to suggest that you erase any photographs in question if you don’t want your equipment to vanish for an indefinite period (during which almost anything might happen to it and to data held on it). This happened to me when I intervened when a number of police were harassing a homeless person on the Holloway Road.

The argument that the constable involved was conspiring with me to pervert the course of justice by tampering with the evidence of a crime, and that therefore both of us ought to be arrested, did not help much if at all. Unfortunately, I have no memory of the guy’s serial number, which is a pity because as he filled in an evidence record for my mobile phone before returning it to me he almost certainly falsified his notebook later that evening, which is a disciplinary offence.

34

ScentOfViolets 04.09.09 at 3:05 pm

Such stories are legion:

Charges dropped against CT priest who taped police
By DAVE COLLINS

HARTFORD, Conn. Connecticut prosecutors on Thursday dropped charges against a Roman Catholic priest who was arrested while videotaping East Haven police officers in an attempt to document alleged harassment of Hispanics.

Parishioners of the Rev. James Manship’s church also announced Thursday that they filed a complaint with the U.S. Justice Department’s Civil Rights Division seeking an investigation of East Haven police for alleged brutality and racial profiling of Hispanics.

Hugh Keefe, a lawyer for the police department, declined to comment on Thursday’s events. He said he wanted to see the complaint first.

Earlier this month, Keefe accused Manship of “creating a controversy where none needed to be,” and he said there never had been a formal complaint accusing town officers of harassing Hispanics. If a complaint was brought forward, he said, town officials would look into it and take it seriously.

Manship, pastor at St. Rose of Lima Church in New Haven, was charged Feb. 19 with disorderly conduct and interfering with police. He was videotaping two officers who were removing what they called illegal license plates from a wall of a food store owned by a Hispanic couple, who said the plates were for decoration.

The officers said in their reports that Manship was holding an “unknown shiny silver object” and struggled with one of the officers who tried to take it from him.

But a 15-second video released by Manship’s attorneys earlier this month shows one of the officers, before the arrest, asking the pastor, “Is there a reason you have a camera on me?” Manship denied struggling with police. The video goes blank just as Officer David Cari approaches Manship.

Or this:

South Florida model jailed overnight for videotaping police officers
March 6th, 2009

Update: Charges dropped against South Florida model arrested for filming cops.

Update II: After hurdles and barricades, police say they will now return camera to model.

By Carlos Miller
A South Florida woman was thrown in jail overnight and charged with an “eavesdropping” felony after she videotaped police officers with their knowledge in a movie theater parking lot Saturday night.

Although a judge dropped the felony charge against her the following morning, leaving her with a misdemeanor resisting arrest without violence charge, Boynton Beach Police have yet to return her camera, insisting that they still need it for “evidence.”

Adding insult to injury, she believes one of the arresting officers sent her an email bordering on sexual harassment, if not surpassing it, insinuating that she had lesbian sex with other inmates during her incarceration.

[snip]

But the officers seemed mainly concerned about the camera.

“They said ‘you can’t record people without letting them know’,” she said.

“So I said, ‘Ok, Tasha Ford is recording you’ and I continued filming them.

“I was filming them for my own protection,” said the mother of two who recently moved to South Florida from Washington DC. “I’ve seen the way cops interact with civilians down here.”

She said one of the officers, Robert Kellman, pictured right, was extremely antagonistic towards her and told her son, “since your mother is such a fucking asshole, I’m going to arrest you for trespassing’.”

or this in my part of the country:

Missouri: Police Threaten, Detain Motorist for Parking After Hours
A St. George, Missouri police officer is caught on tape threatening to invent charges to arrest a motorist for parking after hours.

Brett Darrow videoA motorist who refused to discuss his personal business with a St. George, Missouri police officer was threatened with arrest last Friday. Brett Darrow, 20, no stranger to unconventional encounters with police, caught a St. George Police Sergeant James Kuehnlein stating that he had the power to invent charges that would put Darrow behind bars. Update: Sergeant Kuehnlein was placed on unpaid leave Monday pending an investigation.

“Try and talk back… to me again,” yelled Sergeant Kuehnlein. “I bet I could say you resisted arrest or something. You want to come up with something? I come up with nine things.”

The incident began at around 2am. Darrow was to meet a friend who was working late and was going to pick him up. Darrow headed toward a 24-hour commuter parking lot in an unincorporated part of Saint Louis County in his 1997 Nissan Maxima. He put on his turn signal and entered the lot which, aside from Kuehnlein’s cruiser, was essentially vacant. After stopping the car, the police officer approached and began questioning Darrow about what he was doing. When Darrow declined to discuss his personal business, the police sergeant exploded. Although the video clearly shows Darrow driving properly and using his turn signal, the police officer insisted that Darrow had broken the law.

“Oh, while you were coming towards me you were swerving back and forth within the roadway,” Sergeant Kuehnlein said. “I might give you a ticket for that. You want me to come up with some more? When you turned in, you failed to use your turn signal, your right turn signal.”

Without the video, Darrow tells TheNewspaper that he would have stood no chance disproving the officer’s word in court. Twenty-eight percent of the St. George municipal budget comes from traffic citations. Darrow wonders how many of the tickets were legitimate.

“Looking into this guys eyes, he was crazy,” Darrow said. “I was really scared he was going to assault me. I just wonder how many other people have been arrested on these charges.”

After ordering Darrow against the car and searching him, Sergeant Kuehnlein released the motorist. Update: Website used by Saint Louis police contained threats of harassment and bodily harm against Darrow in June.

View video of incident below. Warning: Police officer uses graphic language.

The police of course were ashamed of this incident. Well, maybe not:

In the course of researching the incident, TheNewspaper learned from an inside source about a CopTalk posting dated June 29, 2007. A user calling himself “STL_FINEST” wrote the following item, presented unedited and in full:

in reply to “Who is this terd?”
I hope this little POS punk bastard tries his little video stunt with me when I pull him over alone- and I WILL pull him over – because I will see “his gun” and place a hunk of hot lead right where it belongs.

My apologies for the length of excerpted quotes. These stories have a personal significance for me because many years ago I was rather sympathetic to libertarianism. But unlike today’s flavor, back then in the mid-70’s this was the sort of issue that libertarians in my general circle of acquaintances considered important.

35

Ginger Yellow 04.10.09 at 12:23 am

“I think it is important that photographers stand their ground with the police where the police are acting unlawfully, as they usually are in these kind of cases”

Of course they are, and that’s why the new law is so pernicious. It gives the police a delightfully vague fig leaf to justify illegal activity, to the extent that it becomes much more difficult to stand your grand. You can no longer say there is no law against filming the police, because there is. It’s just that a court might or might not decide it applies in this particular circumstance.

36

Chris Bertram 04.10.09 at 6:03 am

#35 But I don’t think that picture — of the police doing whatever they feel like at the time, and the courts sorting it out later — is quite right, because it grants the individual officer a kind of intepretative discretion that they just don’t have. They are bound to follow Home Officer/ACPO guidance, and will almost certainly be better briefed than they have been in the past. So I’m slightly optimistic that the situation will actually improve a bit wrt to random hassling of photographers.

37

minneapolitan 04.10.09 at 7:04 pm

Here’s what it comes down to: There are two standards of police activity. The one standard, that most people here are subject to, allows you to have a few rights, and if you can catch the police violating them unequivocally, you may win a civil suit or at least be acquitted of whatever they’ve charged you with. The other standard, of course, is the one that applies to most people in the world — the poor, the dispossessed, the disenfranchised, the resistant — and does not allow you any rights whatsoever, and even if you do have evidence of police misconduct, it will be lost, destroyed, ruled inadmissible or otherwise sent down the memory hole.
It is a grave mistake to confuse one standard of police activity with the other.

38

Alex 04.10.09 at 7:37 pm

And I take it you have some useful contribution?

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