We know that photographers have been having problems all over the country with police harassment, and that demonstrators’ free speech rights have also been under assault. But with the Democratic and Republican political conventions coming up, we have all too much reason to expect that free speech rights will be swallowed up in the vortex of those events, which have become constitutional black holes in recent years.
Chris Hansen, our senior First Amendment attorney, has been litigating First Amendment cases for many years, including landmark cases such as Reno v. ACLU, and a number involving the free speech rights of protesters. I asked him to give me an overview of the situation, and he said that we’ve been seeing three big problems that come up increasingly at all these kinds of events:
1) “Free Speech Zones.” People wishing to express themselves are being sent to distant locations—euphemistically called “Free Speech Zones”—so they are inaccessible to the audience at the event. (There is one legitimate Free Speech Zone we don’t have a problem with, it’s called the United States of America.)
2) Arrests. People are simply being swept up and arrested, essentially for no reason at all, in order to clear the streets. Cities figure that they can just deal with the ensuing litigation later. They don’t much care that they don’t have grounds to arrest people, they just sweep the streets.
3) Surveillance. Unjustified surveillance is common, both prior to and during the event. Recent stories suggest that there is a lot more infiltration of protest organizers taking place than we had realized at first. But then there’s also the surveillance that takes place at the event, where often everything is filmed. Even worse are the new restrictions on what you can carry into the demonstrations, which give the police the authority to search you as you go in.
Consciously and intentionally violating the law and Constitution is apparently viewed as a legitimate tactic by the same police and officials who are supposed to be enforcing the law. Chris Hansen adds,
It’s an accelerating pattern, and a remarkably consistent pattern. In other words, there don’t seem to be significant city-by-city variations in police behavior; there seems to be a playbook for police departments that they’re all using.
Chris says that when attorneys for protesters try to seek legal protection in advance, the cities respond by using various tricks they have learned to get around legal oversight. For example, with respect to the free speech zones, he says:
We’ve tried. Part of the problem is the city often won’t tell you until the last minute where you’ll be allowed to demonstrate. So if you go into court six months before the event, the city says, “we haven’t made any decisions yet,” and the judge says “well, how can I decide this in the abstract?” But if you wait for the police to announce the location right before the event, the judge often says, “I don’t have time to second-guess the city, I’m just going to let it go.”
So the cities have learned that if they keep the location information secret up until the very last minute, for the most part judges aren’t going to second-guess their decision, so they end up sending you six miles away, under a bridge. That’s the classic example, in Boston, where they were literally under the highway.
It’s sad and ironic that the political conventions, which at some level are supposed to represent democracy and freedom, have become empty, stage-managed, institutionalized, Soviet-style show events, while simultaneously becoming the occasion to sell out real individuals’ actual, ground-level free speech rights as a “cost of doing business.”
- What Not to Bring to the 2012 Conventions (theatlanticcities.com)
- Federal Court Upholds The Herding Of Demonstrators Into ‘Free Speech Zones’ (dprogram.net)
I don’t know Temple University photojournalism major Ian Van Kuyk, despite his enrollment in Temple’s Journalism Department, where I teach.
I do know that dynamics embedded in the recent arrest of Van Kuyk by Philadelphia police–an arrest now generating news coverage nationwide–provide yet another snapshot of the systemic abuses I’ve reported and researched during three decades spent documenting the lawlessness endemic among law enforcers.
Philadelphia police roughed-up and arrested Van Kuyk for his photographing a police traffic stop taking place in front of his apartment. The arrest of Van Kuyk violated Philadelphia Police Department directives permitting such photographing as well as court rulings and constitutional rights.
Police harassing citizens lawfully documenting police activities taking place in public is a “widespread and continuing” problem according to the ACLU.
“The right of citizens to record the police is a critical check and balance,” an ACLU analyst noted during a September 2011 speech where he referenced six incidents in five cities of police arresting citizen photographers during just the spring of last year.
Yes, police attacking civilians for lawfully photographing public spaces, police routinely employing unlawful excessive force and prosecutors too frequently turning a blind eye to such police misconduct are all nationwide problems.
Systemic abuses by police and the prosecutors that condone such misconduct corrode public confidence in the justice system and cost taxpayers millions of dollars spent on settling lawsuits alleging illegalities by police.
Historically, abuses by police and particularly those by prosecutors receive short-shrift from most elected officials.
Just a few days before the alleged March 14, 2012 abuse of Van Kuyk, an artist filed a federal lawsuit against a Philadelphia policeman for roughing her up when arresting her less than two miles from the Van Kuyk incident. When arrested that artist was lawfully creating an outdoor artwork.
In January 2012, the City of Philadelphia settled another lawsuit filed against the same artist-arresting policeman, with the City agreeing to pay a woman $30,000. She alleged that the officer had “violently manhandled” her – breaking her nose and spraining her wrist during a sidewalk encounter.
Abundant evidence now implicates a police-prosecutor abuse angle in the Florida fatal shooting of teen Trayvon Martin by 28-year-old George Zimmerman.
The evidence is clear that Sanford, FL police officials acted in incomprehensible variance with established procedures in their handling of that fatal incident, seemingly proceeding in ways calculated to support Zimmerman’s self-defense claim.
And evidence indicates those police officials plus prosecutors rejected a Sanford Police detective’s request to arrest Zimmerman for manslaughter – a management decision that appears to demonstrate less concern for victim Martin than for shooter Zimmerman, whom the evidence shows ignored police orders to not confront Martin, only to have him then claim he shot Martin in self-defense.
The incident producing the arrest of Van Kuyk and outrage from the general counsel of the National Press Photographers Association (NPPA) about gross violations of this young photojournalist’s First Amendment rights occurred in a section of South Philadelphia.
Of course there are two sides: in this case the account advanced by arresting officers and accounts from Van Kuyk, his girlfriend (also arrested that night) and a few of their neighbors who witnessed the events.
The only points of agreement between the two versions are that police were questioning one of Van Kuyk’s neighbors outside the South Philadelphia apartment where Van Kuyk lived, and that the budding photojournalist began photographing that encounter.
Philadelphia police are now re-investigating the incident in the wake of criticism and critical news coverage.
According to Van Kuyk, Philly police, after demanding that he stop photographing them, and after their dismissing his First Amendment protests, snatched Van Kuyk up, slammed him to the ground, swept him off to a police station for a nearly 24-hour detention, and eventually slapped him with a slew of charges, including disorderly conduct, resisting arrest and obstruction of justice.
How was Van Kuyk ‘obstructing justice’ if, as an NPPA letter to Philadelphia police contends, Van Kuyk “never came closer than ten feet” to the police? That letter notes that Van Kuyk “voluntarily backed up” when ordered by police before a policeman “approached [him] in an aggressive manner demanding that he stop taking pictures.”
Police also arrested Van Kuyk’s girlfriend, detaining her for 19-hours, also slamming her with trumped-up charges. Her arrest arose from her trying to retrieve Van Kuyk’s school-issued camera.
At the core of this incident we see some Philadelphia police failing to follow clearly stated department policy. A Philadelphia Police Department directive issued in September 2011 bars officers from arresting people for “photographing, videotaping or audibly recording police personnel [conducting] official business… in any public space.”
The “Purpose” listed on that policy, Memorandum (11-01), was to “remove any confusion as to duties and responsibilities” when police find themselves subjected to recording devices.
That National Press Photographers Association letter to Philadelphia’s Police Commissioner, raising the First Amendment, stated “It is truly abhorrent that not only did your officers abrogate that right [they] chose to add insult to injury by overcharging Mr. Van Kuyk with offenses he did not commit.”
Given that red-line PPD policy directive, police supervisors and prosecutors should have immediately pulled the plug on the charges against Van Kuyk and his girlfriend, but they didn’t.
Prosecutors pressed the flawed-arrest-related charges against Van Kuyk’s girlfriend, extracting their pound of flesh by forcing her into a program requiring 12-hours of community service and paying a $200 fine in exchange for their dismissing those flawed charges.
Van Kuyk is awaiting his preliminary hearing and possible trial.
The prosecution of Van Kuyk’s girlfriend and his pending charges are a stain on both the ethical duty of prosecutors to seek justice and Professional Conduct rules for prosecutors restricting prosecutions “not supported by probable cause.”
Someone somewhere in Philly’s prosecutor’s office should have questioned the questionable if not totally bogus charges arising from arrests prompted by police violating their department policy.
Philadelphia police spokesmen proclaim that the arresting officers knew about that directive protecting First Amendment activity, but contend that “other things happened… that caused the officers to make an arrest,” according to widely reported media accounts.
The Philadelphia Police Department’s record of abusive misconduct, however, casts a dark shadow on the department’s contention that “other things happened,” as do eyewitness accounts.
This incident involving Van Kuyk is hauntingly similar to an August 1972 incident that occurred just ten blocks from Van Kuyk’s apartment. In that 1972 incident, a minister questioning police for pummeling a man outside his house triggered a home-invasion, with police ransacking the minister’s home and arresting him, his wife, his daughter and a house guest from Germany.
As with the Van Kuyk case, the assaulting police hit Rev. Joseph Kirkland, his family and house guest with a slew of charges, including disorderly conduct and interfering with a police officer.
Philly prosecutors pressed those charges, which police had concocted to cover-up their criminal assault on Kirkland’s house, but a judge quickly dismissed them.
Philly’s then top prosecutor, Arlen Specter, later a US Senator and top Senate Judicial Committee member, rejected widespread demands to prosecute those offending police officers for their criminal conduct against Rev. Kirkland and his family.
Specter recently released a book criticizing the dysfunction in contemporary partisan politics – an ironic argument coming from someone who once shirked his ethical and professional duties by ignoring outrageous misconduct and abusive behavior by police and prosecutors.
Months after that August 1972 incident, a federal judge in Philadelphia issued a ruling in a class-action police brutality lawsuit in which he criticized arrests without probable cause.
That judge noted that those most likely to be targeted for police abuse are individuals who had the audacity (but legal right) to challenge their initial police contact.
I guess certain abusive practices are just embedded in Philadelphia Police Department culture.
So are a 1972 incident and 1973 court ruling ancient history?
Well, that ’72 incident and ’73 court ruling implicated issues animating the Van Kuyk incident.
Meanwhile, a Maryland man in 2010 avoided a possible 16-year prison term for posting a video on YouTube showing a plainclothes state trooper brandishing a pistol when he stops that man for an alleged speeding violation.
A Maryland judge dismissed the criminal charges filed against that motorcyclist wearing a helmet cam in a ruling reminding police and prosecutors that public officials are “ultimately accountable to the public” and public servants should not expect their action to be “shielded from public observation.”
Philadelphia prosecutors need to drop the charges against Van Kuyk and reverse the proceeding against his girlfriend.
Further, authorities nationwide need to crack down on misconduct by police and prosecutors.