Photography Incidents Managing Encounters

By: Jonathan D. Greenstein February 23, 2011

The following monograph is a complication of lessons learned, best practices and the authors personal experiences: It does not reflect any official agency position or policy. Before applying anything contained herein, ensure you consult your agencies policies and procedures and competent advisors.

Not a day passes without a report of suspicious photography being disseminated through various law enforcement information sharing systems. While most of these incidents resolve to be nothing more than innocent cases of people who are simply documenting their travels, prominent buildings or in some cases semi-professional photographers seeking to expand their portfolio, there is the potential for these cases to have either a terrorist nexus or a litigation motivation. The purpose of this article is to address some of the issues that seem to crop up from time to time and the resounding question: can they do that? In addressing the terrorism nexus, it is well established that as part of the attack cycle there will be initial/low level surveillance of potential targets followed by intense/high-level surveillance. What is important to understand is that while there is no template that terrorist operators follow, most are at the very least basically aware of counter surveillance measures employed at potential targets. Further, they are likely cognizant of obvious indicators of suspicious activity that will trigger intervention and may avoid them. This is not to say that during the surveillance stage a potential terrorist will not engage in clumsy or obvious photography of a facility, quite the contrary. It is possible that during this stage of planning they could very well do so as part of subterfuge or lack of experience. The fact is we just never know. For non-terrorists, the personal motivation to take photos of a facility is as endless as the facilities being photographed. As previously noted, some incidents are tourists and others are creating a portfolio. For tourists there may be complications due to language barriers, foreign documents and an aversion to law enforcement; as with any other contact, diplomacy, tact and patience are critical. When dealing with professionals or budding documentarians, they tend to know or believe they know their various rights and may vigorously assert them; as with the earlier noted population: diplomacy, tact and patience is the order of business.

Another population of photographers that may be encountered is what I have begun to call police conduct litigants. They are not new. For many years there have been folks who purposely engage with law enforcement for the sole purpose of eliciting potentially questionable conduct that they can later exploit, be it for socio-political motivations or in pursuit of a lawsuit. As demonstrated by recent settlements, there is a financial consequence if an officer steps over the line when mitigating potential concerns over photography incidents. They may very well know that a facility being photographed serves a sensitive mission or is part of critical infrastructure. They may purposely loiter and take photos in an obvious manner to elicit contact. They may be accompanied or have nearby a cohort who documents any contact with responding personnel. They may demand to know the mission and function of the facility, quoting the Freedom of Information Act or other legal basis. Contacting officers may be Rope-a-doped into arguments that could very well end up on YouTube. Lastly, there are the conspiracy theorists. The motivation for photographers in this category rests in their strong belief about a particular subject. I included them in the same section as potential litigants because they share some of the same traits. They strongly assert their rights to take photos, demand citations of laws that justify the contact, may ramble on about this theory or that conspiracy. They may also seek to document any assertions by police that photography is prohibited to further their theory of a cover-up. What I stress in responding to these last two types of incidents is the same as with any public contact: diplomacy, tact and patience. Stick to the matter at hand. Avoid de-evolving and arguing. Keep it simple and direct. Towards the close of this article I have included some possible steps to follow when contacting individuals; they are only guidelines but they work. Photography in Public Places Several recent settlements and court decisions have reiterated that right to take photographs in public places. Absent any major shift in laws, rules or regulations, the legality of standing in a public place and taking photos of any subject; be it a person, place or thing will remain. While such conduct may cause concern, it is generally legal. These recent cases generally showed that officers were either misinformed about the legality to take photos in public places or were goaded into stepping over the line. Consensual encounters morphed into detentions. Detentions turned into arrests and seizure of cameras. In no way am I discouraging making contact with the public, quite the contrary. If handled professionally, such contacts reinforce law enforcements commitment to public safety and our awareness of potential threats. Not to script the language that should be used during an encounter, but to help build the framework I have suggested and used the following: Hello, I am Officer Smith of the XYZ Police Department. The reason I have come over is because the facility you are taking pictures of is a government building/potential target of criminals. I was curious as to if your are visiting our city or are a professional photographer

This establishes who you are, who your work for, the purpose of the contact and serves to elicit a response from the person contacted. It is not an interrogation, it is a professional encounter. It does not need to specify the name of the agency behind the front door or the criticality of the asset. While it is reasonable to approach an individual taking photographs or otherwise documenting a sensitive facility, we must understand that their conduct is usually protected and our conduct must be above reproach. Due to the varying legal framework that may prohibit photography of certain facilities, I leave it to the reader to ensure they are appropriately versed on what course of action they may take. General Response The following should serve as a guideline for establishing policies and procedures when responding to incidents. Be aware that different jurisdictions may apply differing standards and criteria to engage in a stop and talk, field interview or other activity; consult with the appropriate members of your legal staff and/or prosecutor before implementing any changes when a question exists. -Observe the individual(s) until and only if such conduct raises a concern directly related to public or facility safety. You should be able to articulate suspicions or concerns before initiating contact. -Approach in a professional manner. Identify yourself, your agency and the reason for contact. Be aware that individuals may record the contact. (In most cases, there is no or limited legal basis to prevent them from recording you in public) -Attempt to identify the person(s), any affiliations and the purpose of their activity. Remembering that such encounters are voluntary and absent any local law requiring identification, they are free to terminate the contact and leave. -Unless there is reasonable suspicion or probable cause for an arrest exists do not imply the person is being detained. -While a request to view images is reasonable, there is no requirement that they provide them or divulge what they have photographed. A refusal normally would not elevate the contact. -While complete and accurate information collection is strived for, the contact should only continue for as long as reasonably needed in an attempt to identify the person(s) and the legitimacy of their activity. In the end, if the contact does not reveal criminal conduct, the individual(s) should be thanked for their cooperation and allowed to leave. Final Thoughts Remain alert for pre-operational planning; this includes suspicious photography of potential targets. Know the law and what is allowed on the part of both the police and public. Document all encounters and ensure suspicious incidents are validated and entered into the appropriate reporting system. Be Safe!

This article is a complication of lessons learned, best practices and the authors personal experiences: It does not reflect any official agency position or policy. Before applying anything contained herein, ensure you consult your agencies policies, procedures and seek out competent advisors.

About the Author: Jonathan Greenstein has been involved in law enforcement and public safety for over fifteen years, having served as a patrol officer, field training officer, watch commander and criminal investigator. A graduate of numerous advanced training programs to include Hostage and Crisis Negotiations, Terrorism Mitigation and Tactical Operations. He applies his professional experience and training to the development best practices, policy and in the law enforcement advisory role. He may be contacted by email through: jonathan.greenstein@leo.gov