A few days ago I was standing on the corner of Wall Street and Broadway when I heard a security guard talking with a tourist. “You can’t take pictures here, this building is protected!” I wasn’t sure I’d heard correctly, so turning to face them I found a small, middle aged woman with a Nikon hanging around her neck and the security guard ordering her to delete the photos. I listened to the exchange for a few more minutes until I couldn’t help myself and stepped in, telling both of them that she was on a public sidewalk. She could take whatever pictures she wanted. This didn’t sit well with the terrified tourist or the guard, who started shouting about terrorists and “9-11.” The guard was much larger than either of us, uniformed and aggressive and the woman eventually gave in and deleted the shots. I ended up walking away, shaking my head.
I see this all the time and I’m always amazed that people put up with it. More often than not I’ll see private guards or police pulling this routine, but sometimes it’s store managers, street vendors or even complete strangers who try to block the lens. Most of the time, the burden falls on the photographer to protect their gear and their rights. With the major political conventions coming up in a few weeks, I thought I might address some of the issues photographers and photojournalists face, and how they can protect themselves.
The first thing that photographers and photojournalists should know is that, while the laws vary from state to state, so long as you’re shooting on a public street nobody has the right to stop you from shooting. At the same time, nobody has the right to tell you to show them your work or to delete your shots. I spoke with Mickey Osterreicher, General Counsel for the National Press Photographers Association and asked for his opinion.
“From my point of view and -also the Department of Justice – deleting photos, whether the police ask you or a third party to do it or do it themselves, is improper and has no basis in law.”
This is not without limitations, of course. If the subject is in a photo and is in a place where there’s a reasonable expectation of privacy, an argument could be made that the photographer is invading that. For example, if the shooter is standing on a public sidewalk but shooting into an open window, they could be violating any number of laws. Still, unless an officer personally witnesses such an act, the photographer is under no obligation to show or delete any images.
“There are no circumstances under which the contents of a camera or recording device should be deleted or destroyed” Mr. Osterreicher continued, directly quoting a Dept. of Justice letter to the Baltimore Police Dept. “Not only is this an act that destroys the property of another, it entirely circumvents proper due process and may be viewed as a form of prior restraint of the press. The destruction of press materials is a violation of the Privacy Protection Act of 1980 and may be subject to a federal civil rights lawsuit. Police may ask to view your photos but you do not have to consent. Consent means just that and the police may not coerce you into consenting by threatening you with arrest or by intimidation. Absent consent
officers may only seize cameras under exigent circumstances. That being if they reasonably believe that the camera contains evidence of a crime and that there is a high likelihood that the evidence will be lost or destroyed without its seizure. They may not view the contents without a proper search warrant and providing you with an opportunity to be heard or to object.
The increasingly knee-jerk reaction to photographers doesn’t always come from the authorities, either. During the Mayday rallies held in Manhattan earlier this year, several activists attacked photographers who were documenting an unpermitted march through lower Manhattan. An anarchists blog recently advocated stealing and destroying gear, and even suggested certain brands of box-cutters to slice away straps.
After all this, how does one realistically protect themselves?
“Self-defense laws vary from state to state,” Mr Osterreicher continued, “but in general [the law] allows a person to use reasonable force in his or her own defense or the defense of others.
There is also a very big distinction between the use of non-deadly and deadly force. So in protecting yourself and your cameras you may use non-deadly force to prevent imminent injury to you or the theft or damage to your equipment but you may not use deadly force unless you reasonably believe you are in danger of suffering serious injury or death.
You also have a duty to stop using force once the other person ceases being the aggressor. In some states you may also be bound by a duty to retreat when on the street.”
From personal experience, I’ve found it’s best to work in pairs or groups. If something happens to you, whether you’re hurt or arrested, it’s good to have somebody you know who can help get the word out.
Know when to back off. It’s all well and good to quote case law and scream about your rights (and believe me, I’ve seen plenty of photographers whip out these old chestnuts,) but at some point it’s not going to be enough and you’ll be faced with having to either keep shooting knowing you face arrest, or to back off and reassess from another angle. Understand that if you’re arrested, you’re not going to get your photos out. In the event that you are arrested, make sure you’ve got a complete list of your gear and their serial numbers, and carry enough cash to post bail.
The NPPA has a fantastic list of legal resources on their blog, including a list of lawyers numbers available to photojournalists covering the Democratic and Republican conventions. Mr Osterreicher himself will also be available to any shooters in need of legal advice.