In defense of the First Amendment

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A police officer forcibly escorted Baltimore Sun photo editor Chris Assaf away from the scene of a police-involved shooting on Feb. 21. He had been taking pictures from outside the police lines, but an officer told him he had to move back further. Assaf protested, stating he was within his First Amendment rights to be where he was standing. Another officer then forced him to move. The Sun is posting all of Assaf’s images from the shooting scene as well as photos taken by Sun photographer Lloyd Fox, who witnessed and documented the incident.

Lt. Eric Kowalczk, the chief spokesman for the Baltimore Police Department, said the department has opened an internal investigation into the allegation. He declined to comment more specifically on the incident, “because we have an investigation and we don’t want to prejudice that.”

Warning: Some graphic images appear in this gallery.

Two years ago I wrote a blog post on the struggles of photographers exercising their First Amendment rights to photograph in public places, especially in a post 9/11 era. Since then little has changed.

A recent event brought this close to home when Baltimore Sun photo editor Chris Assaf was confronted by a Baltimore City police officer at the scene of a police-involved shooting. The incident happened in close proximity to The Sun at the intersection of Centre Street and Guilford Avenue, so Assaf was able to respond quickly to the scene.

While photographing outside the police tape — which marked the established perimeter — an officer broke the tape and told him he would have to move across the street. Assaf protested, stating he was outside the established perimeter of the crime scene and he had every right to photograph from where he was standing.

While asking for the officer’s name, a second police officer grabbed Assaf and began pushing him across the street. Assaf on numerous occasions requested that the officer release him, saying that his rights were being violated. Baltimore Sun photographer Lloyd Fox witnessed and documented the scene. Baltimore Police said they are investigating the allegations.

If this were an isolated incident caused by one overzealous police officer, it might be possible to look past it. But, as I wrote in the 2012 blog post, there seems to be a misconception among some police officers and others in authority that they can stop not only the press but anyone taking pictures or recording police activity at a crime scene.

Just recently Sergio Gutierrez was recording Maryland State Police making arrests outside a Towson bar. With the video camera rolling, an officer approached him and told him to stop because he was distracting them. When Gutierrez asked what law he was violating, an officer gets up close and tells him to “shut your [expletive] mouth or you’re going to jail.”

Gutierrez responded, “I thought I have freedom of speech.” The officer responded, “You just lost it,” as the camera is jostled and the person recording says he is being pushed.

In response, the Baltimore County Police Chief said in a statement, “The words and demands to cease filming by sworn personnel and citizen volunteer auxiliary officers were incorrect, inappropriate and unnecessary.”

Maryland State Fraternal Order of Police President John “Rodney” Bartlett stated, “From when I started policing 35 years ago, it’s clearly changed. I think all of these officers out there, no matter where we are or what generation, have a certain sense now that there is a possibility that they are being recorded, they are being filmed. Based on that, we encourage our officers to be aware of that and conduct themselves accordingly.” But he also said that sometimes clips that surface on the Internet or news reports don’t tell the whole story.

“Sometimes it doesn’t capture the whole perspective of what’s happening,” he said. He cited an example of a tape where an officer’s conduct is questioned, but police obtain footage from a nearby business surveillance system that shows bottles were being thrown at the officer.

When confronting a photographer who is taking pictures in a public area such as a train station, police and other officials will often cite the Patriot Act as forbidding photography. The Patriot Act does not forbid photography.

Someone who has been at the forefront of defending photographers’ rights is Mickey H. Osterreicher, General Counsel for the National Press Photographers Association (NPPA) and editor of their press advocacy blog. In an article written in May 2011 by Baltimore Sun reporter Michael Dresser, Osterreicher stated, “I call it the Patriot Act gone wild. For some reason, police see someone with a camera and they don’t want them to take pictures or want to assert their authority.”

Osterreicher did a Q&A on the subject with The New York Times blog, LENS, in which he addressed the attack on photographers’ rights to take pictures in public places. New York Times freelance photographer Robert Stolarik was arrested in August 2012 while photographing police during a street brawl.

As mentioned, the Baltimore City police have had their own issues dealing with photographers filming or photographing police officers. In 2010, Christopher Sharp had his cell phone confiscated after filming police arresting a woman during an altercation at Preakness. Sharp, represented by the ACLU, filed suit against the Baltimore Police Department. Four years later, Baltimore is set to pay $250,000 to Sharp, according to a settlement proposal that will be presented to the city’s spending panel this month.

The Baltimore Sun’s photographers grapple with public access issues quite often. Even though the laws are fairly cut and dry, the response from authority figures is not. Whether it’s a security guard, Maryland Transit Administration official or police, there are too many times when someone looks to assert authority when it’s inappropriate.

Meanwhile, our photographers strive to remain as professional and polite as possible while still defending their First Amendment rights as members of the press and as citizens.

Robert Hamilton is The Baltimore Sun’s director of photography. Sun reporters Justin Fenton and Colin Campbell also contributed to this article.