Justice Department Affirms the Right to Photograph Police in Public


The US Department of Justice issued a statement this past Sunday that confirms the fact that the 1st, 4th, and 14th Amendment protect citizens’ rights to photograph police in public places.

The Statement of Interest document is a message to the US District Court in Maryland that it supports photojournalist Mannie Garcia in his lawsuit against the Montgomery County police. Garcia photographing police back in June 2011 when he was arrested and had his camera equipment (and photographs) taken away.

Garcia claims that he was photographing police responding to an incident involving two male Hispanic subjects, and that the officers didn’t like the lens pointed in their direction. He says that since they couldn’t arrest him for his photography, they beat him up and booked him for Disorderly Conduct.

Photojournalist Mannie Garcia had his White House press credentials revoked after his June 2011 arrest

Photojournalist Mannie Garcia had his White House press credentials revoked after his June 2011 arrest

By issuing its document, the Justice Department is saying that they want the case to go forward, and that they support Garcia’s constitutional rights.

The National Press Photographers Association reports that this is only the second time ever that the Department has issue this type of statement supporting the photographing of police in public places.

We first reported on Garcia’s lawsuit back in June 2012. The main story at the time was the fact that Garcia’s White House press credentials had been taken away due to the arrest.

Here’s what the Justice Department says in its filing under a section titled, “The First Amendment Protects Photographing Police Activity That Occurs in Public”:

It is now settled law that the First Amendment protects individuals who photograph or otherwise record officers engaging in police activity in a public place. Here, Mr. Garcia alleges that he was peacefully photographing what he perceived to be police officers using excessive force on a public street. If true, and we must assume that it is for the purposes of a motion to dismiss, this conduct is unquestionably protected by the First Amendment. Both the location of Mr. Garcia’s photography, a public street, and the content of his photography, speech alleging government misconduct, lie at the center of the First Amendment. By forcibly arresting Mr. Garcia and seizing his camera, Defendants stopped Mr. Garcia from photographing a matter of public interest and prevented him from distributing those photographs to the public. Yet, Defendants argue that the First Amendment does not protect individuals from such police action and the only “real alleged Constitutional violation” lies under the Fourth Amendment.

You can read the document for yourself here.

Image credits: Photo illustration based on Robert F. Kennedy Department of Justice Building by cliff1066™, Ben at the White House Press Review Stand by acaben

  • Matt

    I hope Mr Garcia gets justice.

  • 3ric15

    Wow, I live in Montgomery County!

  • Mikael Gramont

    Ok, now what?

  • Greg Heller

    I hope the cops get their justice too.

  • Matt

    Not sure what you mean by that.

  • Editguy

    Until cops start getting arrested for violating those constitutionally protected activities the ruling mean absolutely nothing.

  • Mick Orlosky

    Correct. The ruling means nothing. Citizens are allowed to photograph police in a public place. Well, a few things 1) More and more spaces are not public because they’ve been sold out to private developers 2) More and more enforcement is being done by private non-Police and most importantly 3) In the cases where it is police in public, the police just end up charging the photog with any number of unrelated charges like “interfering with a police officer” — E.g. “Sure it’s legal to photograph the police, but hey you got in the way and THATS WHY we had to beat you up, and then you resisted us beating you up so thats why we had to arrest you too. Consider the law upheld! ” The system has made so many activities illegal, that when they dont like whatever it is you’re doing, they just pick from a menu of things to use against you.

  • Ken Jones

    Actually, it’s not just “public places.” It’s anywhere you have the right to be. You can’t record other persons when they have the expectation of privacy, i.e. bathroom, changing room, etc. Owners have the right to restrict photography on private property, but they can’t seize anything, only ask you to leave.

    Police can’t interfere with someone taking photographs of most things including (especially) their own actions. However, that does not give anyone the right to interfere with police officers’ actions. When asked, you must maintain a certain distance and it can’t be any different whether you have a camera or not. What that distance is will be determined by the event. A simple arrest could be 20 or 30 feet. In fact, a camera should not play into any police decisions unless it becomes evidentiary in nature. In Mr. Garcia’s case his camera could have been seized on scene as evidence the suspects were fighting with police in addition to Mr. Garcia being listed as a witness to the fight. (Whether Mr. Garcia would agree with the police’s version of the event or not is a different issue. Mr. Garcia might have to testify that he was in fact the person who took the photos and they are a true and accurate representation of the event as captured by the event so the defense can’t claim the photos were manipulated to favor the prosecution.)

    Short version: record from a distance. Certainly don’t be hovering over a cop as he is fighting a suspect trying to effect the arrest.

  • chubbs

    They did something wrong, they should be punished under the justice system. (I assume this is what he means)

  • Mark

    I live in the US and am a Green Card holder not a citizen. Occasionally when I see things mentioned to do with the constitution and they always say “a citizen has the right to…”.
    Are non citizen legal residents covered by constitutional rights? Also what about non resident visitors to the US?
    Just curious… the only times I have thought to ask I have been with people who don’t have a clue, perhaps someone interested enough to read the comments in a post like this is the sort of person who would know :-)

  • DrBen

    Generally, constitutional rights apply to all people in the U.S., so long as they are citizens or legally registered resident aliens. In most cases, such protections also apply to visitors and others who are legally present on a temporary basis.

  • Mick Orlosky

    I understand all that. The law is pretty clear. Thanks for going over what the letter of the law is. The point I was trying to make is that the letter of the law is irrelevant. If the police don’t want you to photograph, they can simply say that you’re too close, please move back another 75 feet — because its their own discretion what “too close” means. If you object to their arbitrary interpretation because you have a differing of opinion — you’re then actively interfering with them. At that point it is within the letter of the law for the police to “interdict” your activities — thus they have complied with every single point of your example, and have nevertheless legally dissuaded photography. And to echo the point of the comment I was replying to, until there are repercussions when police do this sort of thing then this is all doubly meaningless.

  • Dov Hechtman

    Couple of issues with what you just posted. The largest is the police can not seize his camera unless he were being arrested as part of the people fighting. The police have no right to just walk over if you are filming or shooting the event and confiscate your equipment as evidence. They can certainly ask for it but to take it would require a court order.

    You’ve also jumbled the whole expectation of privacy which the previous poster wasn’t referring to. A public space like a part the police can not ask you to leave if your shooting it is a public space however a space that is public in the manner of an owned plaza or mall the owner has the right to ask you to not photograph there and can ask you to leave. Humorously one of the primary reasons OWS was not evicted from the park in NYC they occupied was due to a deal with the city that while it was owned privately the developer as part of its contract with the city to obtain the public lands had to agree to the space being treated as public space and separate from those of private ownership.

    So same as any public owned space and not a private property that is public.

    Distance isnt an issue unless a cop sets a perimeter and is not determined by the event but by the officer involved. if your on a public street and the cop takes someone down you can be 10 feet away and not be interfering.

    The issue is the officer arbitrarily setting a distance specifically for the photographer alone which is a violation of his rights. There have been enough videos of incidents where the person with camera professional or not has been targeted and moved far away and even arrested simply because officer buttowski is making up any excuse not to be recorded violating anyone’s rights.

  • Brice Beede

    Mark, the bill of rights is meant to be protection for ALL people regardless of whether they’re citizens or not and even if you didn’t have the green card it is intended to preserve these rights for everyone.

  • John Kantor

    I hope something happens to the police officers when no one is watching – or filming.

  • Mark

    That’s good to know, thanks…

  • Ken Jones

    While you are correct in each officer having their own interpretation of “too close” you still have the right to photograph from the distance they dictate. All the while you are complying with commands you can be recording. If they are singling out photographers and no one sans camera, then a grievance can be lodged.

    Additionally, “the police” to which you refer is actually a small percentage of officers or departments. Of these, they have other issues that should be addressed and not just about photographers rights.

  • Ken Jones

    Concerning your first paragraph, thinking like this could get you in further hot water. For instance, a police officer is on scene and witnesses a major crime. At the same time he sees you photographing the event.

    In your scenario,he walks over and asks you for the camera, you say “no.” What then? You simply walk off?

    Nope, he CAN seize your camera. He has probable cause to seize the camera taking it into custody as testimonial evidence when he believes the evidence might be destroyed or otherwise not available for trial. (…as you’ve already indicated.)

    If you think you’re asserting your rights by physically preventing (fighting) the officer from taking the camera then you certainly can be arrested for interfering.

    It’s called “exigent circumstances.” If the probable cause exists in order to get a warrant, but circumstances indicate the evidence might be destroyed, the officer can make a seizure.

    Please don’t provide information that can get folks in legal trouble.

  • Ken Jones

    The Constitution applies to everyone within the U.S. and its territories and protectorates.

    Legal, illegal, citizen, visitor, it’s applied equally across the board.

    This is why the CIA holds terrorists in secret camps outside these areas in order to get around the Constitutional protections–and why I have a problem with it.

  • Angie Mac

    Favourite recent quote from a TV program… Raising Hope
    Bruce: “When you find him, beat him black and blue!”
    Cop: “I’d love to, but with the internet and phone cameras… the fun’s over.”