Two years ago, a Temple University student’s attempt to complete a photojournalism assignment by taking pictures of a police traffic stop ended in arrest for both him and his girlfriend, who was accompanying him at the time.
The pair was acquitted on charges of obstructing justice later that year, but the issue is back in court this month – this time, in a civil lawsuit filed by the pair against the two Philadelphia police officers who made the arrest.
Media and civil rights advocates say the suit calls attention to recurring confrontations (in Philadelphia and elsewhere) between law enforcement and members of the public who observe officers on duty. In Philadelphia, such cases have persisted despite clear and repeated instructions from Philadelphia’s Police Commissioner on the public’s right to record officers.
The suit, filed in the Philadelphia County Court of Common Pleas, alleges that Officers Samuel Allen and Santos Higgins “illegally exercised their police powers to intimidate, harass, and punish” then-Temple University student Ian Van Kuyk and Meghan Feighan in the March 2012 incident. It seeks compensatory and punitive damages in connection with assault, battery, false arrest, false imprisonment and malicious prosecution.
Both Van Kuyk and Feighan suffered “physical pain and suffering, fear, emotional distress, anxiety, embarrassment and the loss of the enjoyment of life all to [their] great detriment and loss,” the suit alleges.
“We hope our suit brings further attention to ensuring officers act accordingly when innocent citizens are attempting to legally take photographs of police interaction,” attorney Robert Levant said.
Philadelphia Police spokeswoman Jillian Russell declined comment, citing a policy of not discussing pending litigation.
Police Commissioner Charles Ramsey has addressed the topic of photographing officers multiple times in recent years, The Philadelphia Daily News reported. In September 2011, after the newspaper published a story about wrongful arrests involving people recording police activity, Ramsey issued a memo reminding officers that it’s not illegal to record or photograph police officers in public. (That was before Van Kuyk and Feighan were arrested.) In November 2012, the Daily News reported, he sent another directive on the subject.
In 2013, the ACLU of Philadelphia filed three lawsuits against the city on behalf of people who were arrested for “watching or recording” the police, staff attorney Molly Tack-Hooper said. The ACLU of Philadelphia is not directly involved in Van Kuyk and Feighan’s case, but the organization is watching it closely.
One of the ACLU’s cases involved a University of Cincinnati photojournalism student who was arrested after taking pictures of a police officer’s interactions with a homeless woman, and another case involved a man (also a Temple student) who was arrested for recording a cellphone video of an arrest (which police erased), according to the ACLU’s website. The other case involves a woman who was not recording – instead, she was arrested after observing police officers, Tack-Hooper said.
Such arrests are not uncommon nationwide, said National Press Photographers Association attorney Mickey Osterreicher. Though he’s also not involved directly in the current litigation, he sent a letter to Ramsey in 2012 asking for charges to be dismissed against Van Kuyk and Feighan. Ramsey later responded, pointing to one of the memos he issued as a demonstration of his attention to the issue.
Through its lawsuits, the ACLU is “trying to build up body of law so it’s very clear that the right to record police is protected by the First Amendment,” Tack-Hooper said.
Both Tack-Hooper and Osterreicher said preventing future arrests will require thorough training and, when warranted, stricter discipline.
Imposing direct fines on officers who violate this rule would send an especially strong message, Osterreicher said – though he acknowledged that such a solution seems unlikely.
“Only time we’re really going to see things change is when that kind of money comes out of police officers’ pockets directly,” he said.
Additionally, Tack-Hooper and Osterreicher stressed that protecting community members’ ability to observe law enforcement officials is important for a number of reasons.
“Not only is it a constitutionally protected activity, but it’s important in society,” Tack-Hooper said. “Recording the police is a really vital tool for holding the police accountable for misconduct.”
Osterreicher also added that recordings can prove vital in vetting out varying accounts of a given incident involving police.
“Oftentimes having ongoing video of an incident is the best evidence of what actually happens,” he said. “Without that recording there’s a presumption that the police officer is telling the truth”
Many photographers ask Osterreicher for guidance on how to handle the situation. Sometimes it’s possible to reason with officers to avoid arrest, but he said it’s not always possible.
“One second you’re shooting pictures, and the next you’re handcuffed in the back of the police car, and there’s no discussion,” Osterreicher said. “That’s really the chilling effect that this has on people.”
Andrew Mendelson, chairman of Temple’s Department of Journalism, said that in response to the incident, he’s since adjusted his curriculum to include more guidance on what to do if confronted by police while photographing. Now, he said, he incorporates more resources from organizations like the NPPA and websites like Photography Is Not A Crime.