Right to photograph the police is Constitutional
Justice Department Statement Supports Mannie Garcia's Federal Civil Rights Lawsuit
ARTICLE SOURCE: https://nppa.org/node/42647
By Donald R. Winslow
WASHINGTON, DC (March 4, 2013) – The U.S. Department of Justice has just filed a Statement of Interest in the federal civil rights lawsuit brought by photojournalist Mannie Garcia against Montgomery County, MD, police and prosecutors in the aftermath of his June 2011 unlawful arrest, which included the unlawful seizure of his camera and images.
The Justice Department told the U.S. District Court for the District of Maryland in its filing today that it upholds an individuals' 1st, 4th, and 14th Amendment rights to peacefully photograph police as they are performing their official duties in a public place, and that their rights have been violated when police seize such recordings without a warrant or due process.
The statement today is the Justice Department's way of telling the court that they have an interest in seeing Garcia's civil rights case move forward and that they uphold his constitutional rights. It's also only the second time Justice has issued such a statement in support of photographing and reporting on police as they perform their job in public.
Filed by Roy L. Austin Jr., the deputy assistant attorney general in the Justice Department's Civil Rights Division, the statement also asked the court to deny Maryland's motion to dismiss Garcia's lawsuit. Maryland's motion to dismiss was based on a number of shaky claims, such as their assertion that Garcia failed to sufficiently make a claim against them, along with a time-honored defense that police often resort to in these kinds of cases, a defense known as "qualified immunity." This defense is based on their belief that police arrest people when they have probable cause, and therefore their arrest of Garcia was an action that, given the circumstances, any reasonable police officer would have taken.
In response to Maryland's request for dismissal, Garcia's lawyer also filed a motion to oppose the defendants' motion to dismiss. The opposition motion says that the Montgomery County police are not entitled to qualified immunity as a defense and now the court doesn't have to take just the word of Garcia, they can also now take into account the word of the U.S. Government deputy assistant attorney general.
Garcia reinstated his federal civil rights lawsuit in December 2012. The updated complaint, filed in U.S. District Court for the District of Maryland, seeks actual and punitive damages along with attorney’s fees for violations of Garcia’s rights under both the United States and Maryland Constitutions, as well as for other state claims.
Garcia's civil rights suit claims that he was unlawfully arrested and detained while filming police activity on a public street in the suburban neighborhood of Wheaton, MD. Officers apparently didn't like the fact that Garcia was photographing them while they were responding to a call of an incident involving two Hispanic male suspects. Since Garcia couldn't be arrested for the "crime" of taking pictures, a police officer physically injured Garcia and then arrested him on a trumped up charge of Disorderly Conduct, the suit claims.
The suit also alleges that Montgomery County Police officials failed to conduct an internal investigation regarding the matter. The lawsuit maintains that officers violated Garcia’s rights under the First, Fourth, and Fourteenth amendments to the U.S. Constitution and the Maryland State Constitution. The primary officer in the suit, Chris P. Malouf, and two other officers on the scene at the time of Garcia’s arrest – Kevin Baxter and Michael Graves – are named as defendants, as well as Chief of Police Thomas Manger and Montgomery County. The complaint also alleges false arrest, malicious prosecution, assault and battery, violation of civil rights, failure to properly train officers, and failure to supervise and discipline officers. Montgomery County apparently took no action against the officers after Garcia was found not guilty, and there was no internal investigation conducted.
NPPA general counsel Mickey H. Osterreicher pointed out the importance of today's Justice Department statement because it's only the second time Justice has asked the courts to support the constitutional right to photograph and record police performing their official duties in public. Ironically the first time also involved Maryland police. In Baltimore in 2010, Christopher Sharp was photographing police with his cell phone at the 2010 Preakness Stakes when cops seized and deleted all the contents of his phone, not just the incident he had recorded. Sharp, a civilian, also brought suit claiming his civil rights had been violated "under the color of law."
"Today's statement is important because in the Sharp case, the government wrote about the right of the public to photograph and report on police. In today's statement, they address the rights of the public AND the press," Osterreicher told News Photographer magazine. "As I have often said in my outreach to police departments – ‘we can do this the easy way or the hard way.’ Today’s statement by the government now makes that choice a little bit harder,” Osterreicher added.
In today's statement the Justice Department asked the U.S. District Court to directly address three key questions:
"First, the United States urges the Court to find that both the First and Fourth Amendments protect an individual who peacefully photographs police activity on a public street, if officers arrest the individual and seize the camera of that individual for that activity."
"Second, the United States is concerned that discretionary charges, such as disorderly conduct, loitering, disturbing the peace, and resisting arrest, are all too easily used to curtail expressive conduct or retaliate against individuals for exercising their First Amendment rights. The United States believes that courts should view such charges skeptically to ensure that individuals’ First Amendment rights are protected. Core First Amendment conduct, such as recording a police officer performing duties on a public street, cannot be the sole basis for such charges."
"Third, the First Amendment right to record police officers performing public duties extends to both the public and members of the media, and the Court should not make a distinction between the public’s and the media’s rights to record here. 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."
Attorney Robert Corn-Revere, a partner at Davis Wright Tremaine which is handling Garcia's case, today said, "We are very pleased that the Department of Justice filed a brief in support of the important constitutional issues raised in Garcia v. Montgomery County. The fact that the federal government has chosen to take a stand underscores the fact that this is far from an isolated case. Unfortunately, police departments in jurisdictions across the United States will have to learn from cases like this that photography is not a crime."