The incident occurred in July 2014, when Dominic Holden of Seattle newspaper The Stranger attempted to photograph a man being arrested.
According to Holden, he kept his distance from the scene and was not interfering with the arrest in any way. And yet a King County Sheriff’s deputy told him he couldn’t stand there because he was technically standing on private property owned by King County Metro, the transit authority for the region.
Even when Holden relocated to what was definitely a City of Seattle public sidewalk, the deputy threatened him with arrest unless he left the block.
“You need to leave or you’re coming with me,” the deputy allegedly told Holden.
As he left the scene, Holden asked some Seattle city police officers if they could identify the officer in charge. They said they didn’t know because it was a county police scene, but one officer wanted to know why Holden was asking.
He explained that he’d just been threatened with arrest by the deputy and was hoping to speak to someone in charge.
After some more back and forth, during which Holden identified himself as a reporter, the officer allegedly said, “I’m going to come into The Stranger and bother you while you’re at work,” and even asked for Holden’s business card so he could have the address.
Following Holden’s story on the arrest and harassment threats from these officers, the city cop was penalized with a one-day suspension while the King County Sheriff John Urquhart investigated the claims against the deputy.
At the end of January, Sheriff Urquhart concluded his investigation and recommended [PDF] that the deputy, who reportedly has a history of crossing the ethical line, be dismissed.
Not only did the Sheriff Urquhart conclude that the deputy overstepped his authority by telling Holden that he couldn’t take the photos, but also that he attempted to avoid accountability by recasting the events in a way that made him out to be the good guy.
“[Y]ou claim you interacted with Mr. Holden in a civil, professional manner that was nothing more than ‘social contact’; you did little more than tell him for his benefit that he couldn’t ride [his bike] on Metro property because doing so is a $66 infraction… you calmly pointed him in a direction you were suggesting he leave,” reads the Sheriff’s summary of the deputy’s side of the story, which also claimed that two other deputies also told Holden to leave.
“But the evidence is that you approached Mr. Holden because you took exception to him lawfully exercising his right to take photographs of you and your colleagues while lawfully standing on public property; you were agitated and confrontational; you essentially ‘squared off’ with him; you expressly and/or implicitly threatened to arrest him if he did not leave immediately in the specific direction you pointed, not once but five times (misidentifying public property in the process),” concludes the Sheriff, who also notes that the two other deputies deny any statements attributed to them by the now-dismissed officer.
Earlier this week Sheriff Urquhart confirmed to Holden that the deputy had been fired.
“You have a constitutional right to photograph the police,” explained the Sheriff, who added that threatening to arrest a citizen for legally taking photos of cops while on public property, he added, “is a constitutional violation, as far as I am concerned.”
While courts have long held that police can’t stop people from photographing them in public, two recent federal court rulings have helped to clarify the issue.
In 2011, the U.S. Court of Appeals for the First Circuit ruled in Glik v. Cunniffe that private citizens have the right to record public officials, including police, in a public place.
The court held that the First Amendment’s proscription on laws “abridging the freedom of speech, or of the press… encompasses a range of conduct related to the gathering and dissemination of information.”
The ruling cites an earlier Supreme Court pronouncement that people have the right to gather news “from any source by means within the law.”
“The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles,” wrote the Appeals Court. “Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.’”
The Supremes had previously stated that “[f]reedom of expression has particular significance with respect to government because ‘[i]t is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.’”
And the First Circuit said this applies even more so to law enforcement officials, as they “are granted substantial discretion that may be misused to deprive individuals of their liberties.”
“Ensuring the public’s right to gather information about their officials not only aids in the uncovering of abuses but also may have a salutary effect on the functioning of government more generally,” wrote the court.
The court explained that, much like police are expected to withstand verbal challenges from citizens without threatening arrest, this “same restraint demanded of law enforcement officers in the face of ‘provocative and challenging’ speech must be expected when they are merely the subject of videotaping that memorializes, without impairing, their work in public spaces.”
In terms of camera phones, the 2014 Supreme Court rulings in Riley v. California and U.S. v. Wurie make it rather clear that police can also not force you to delete images from your phone at a crime scene, as doing so would require a warrantless search of your device.
In these cases, SCOTUS held that a warrant is needed to search a citizen’s phone, even if that citizen has been arrested.
And since there is no way to tell if a photo has been taken — or what the content of a photo might be, or if it’s been deleted — without searching that phone, this tells us that an officer barking at you to “delete those photos!” can ask all that he or she wants, but it’s up to you whether or not you want to erase the images.