You have a right to remain recording

Carlos Miller’s crusade for freedom of photography

On January 31, officers from the Miami-Dade and City of Miami Police Departments donned riot gear and headed to Government Center, in the heart of downtown Miami, to evict the Occupy protesters who had been camping there for three months. Carlos Miller, a local blogger, was there to film it—but he ended up becoming part of the story.

Miller filmed the eviction without incident, and continued shooting even after most of the protestors had left. About four minutes into this piece of footage, Miami-Dade Public Information Officer Nancy Perez stops Miller as he goes to walk by her. In the video, you can hear Miller say, “I want to go to my car,” and Perez say, “Oh, no, you see, it doesn’t work that way,” before calling for other officers.

“Am I getting arrested?” Miller asks. “You got it,” says Perez. Other officers come into the frame and his camera films the ground as he is restrained. As Perez says, “We don’t want to have to hurt you,” another photographer starts recording the scene. Miller’s footage goes black less then 60 seconds later.

Charged with resisting arrest, he was held in jail until noon the following day, he says, and then directed to a neighboring precinct to pick up his over $10,000 of camera equipment. When he got home, he realized that his last five minutes of footage, the part that contained his arrest, was missing. “I didn’t want to come out and accuse them [of deleting the footage],” says Miller. “But I could have sworn I was recording when I was arrested.” He retrieved the video using recovery software called PhotoRec, and promptly posted it to his blog, Photography is Not a Crime.

For the past five years, Miller, a former newspaper reporter, has covered incidents and issues surrounding the public’s right to record the police. Miller’s blog, which he refers to as PINAC, began as a hobby, but became a full-time job. On it, he chronicles his own court cases (he’s had three), other photographer arrests, and related legislation from around the country. He advocates knowing the law and using that knowledge to stand up to law enforcement in what he often refers to, in a sarcastic nod to government terminology, as “The War on Photography.”

There is a lot to write about. People across the country are being threatened with arrest and sometimes taken into custody for recording police officers in public, in settings ranging from protests to traffic stops. Sometimes, people allege that their cameras were confiscated and files deleted. Since filming in a public place is legal, people face other kinds of charges while filming cops—disorderly conduct, obstruction of governmental administration, trespassing.

If convicted, Miller faces a one-year sentence, but he’s confident that his footage of the arrest will get him acquitted. “The momentum is swinging in the direction of the citizen,” he says. “Cops walk around with cameras clipped on their uniforms, because people blame cops for excessive violence and it turns out they’re lying. Cops use cameras to protect themselves, and now citizens are too.”

The rest of 2012 will bring plenty of opportunities for confrontations between police officers and camera-wielding citizens. This weekend’s NATO summit in Chicago, for example, is expected to draw activists from all over. Adrenaline-driven photographic conflicts are going to continue to play out across the country, and that’s why it’s important for all parties involved to know their rights and their restrictions.

“We have to respect each other, because the way things are moving, what you do will get posted on the Internet,” says Miller. “The days of screwing up in public and hoping no one finds out about it are over.”

With camera-equipped smartphones ubiquitous, police and other officials are under more scrutiny than ever. Citizens have uploaded videos that have been seen by millions: the pepper-spray cop at UC Davis; Patrick Pogan, the NYPD rookie who knocked a cyclist off his bike with no provocation; Anthony Bologna, the NYPD inspector who pepper sprayed female protestors in the face. Videos like these often result in bad publicity for the department and recriminations for the police officers caught on camera. Maybe this is why some cops try so hard to stop filming before it starts.

Increasingly, these policies and actions are facing harsh judicial criticism. This April, a federal appeals court in Chicago ruled that the state’s wiretapping law, under which citizens may face up to 15 years in jail for filming an on-duty police officer without consent, “likely violates the First Amendment’s free-speech and free-press guarantees,” making it much more difficult to prosecute offenders.

This past Monday, May 14, the US Justice Department weighed in with a strong message to attorneys for the Baltimore Police Department about the public’s right to record police officers, and the illegality of deleting files. The 11-page letter was issued just two weeks before the BPD goes to court on May 30 for a suit brought by a man named Christopher Sharp. Officers seized the phone Sharp was using to record a friend’s arrest; when Sharp retrieved the phone, it had been wiped of all files, including pictures and video of his family.

The DOJ writes that its statement in the Sharp case “reflects the United States’ position on the basic elements of a constitutionally adequate policy on individuals’ right to record police activity”:

Officers should be advised not to threaten, intimidate, or otherwise discourage an individual from recording police officer enforcement activities or intentionally block of obstruct cameras or recording devices.

And as far as deletion:

Policies should prohibit officers from destroying recording devices or cameras and deleting recording or photographs under any circumstances.

In its letter, the DOJ refers several times to Glik vs. Cunniffe, a landmark case concerning public recording of police activity. In 2007, Simon Glik was arrested and prosecuted for using his phone to record a man’s arrest on the Boston Common. He was charged with illegal wiretapping, aiding the escape of a prisoner, and disturbing the peace. The judge dismissed the charges and Glik filed a civil suit. (Glik was awarded a $170,000 settlement from the Boston Police Department this March.) The First Circuit in Glik’s case unanimously ruled that Glik’s arrest violated both the First and Fourth Amendments. In his widely cited opinion, Judge Kermit Lipiz wrote:

[C]hanges in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.

Carlos Miller used to be credentialed in the traditional sense. In the 1990s and early 2000s, Miller was a police reporter for the Las Cruces Sun-News, San Bernardino Sun, and other newspapers. “Police is my passion,” says Miller. In 2004, Miller left The Arizona Republic and moved back to Miami, where he is from. “I saw the direction that newspapers were going and it didn’t seem very promising,” says Miller, who is 43. “I wanted the freedom to work independently as a journalist.”

In order to get reacquainted with his hometown, he went around taking pictures of Miami skylines and other sites in the city. He says officers would approach and forbid him from photographing buildings or bridges or trains. “I always told them ‘I have the right to be here,’ but I would cooperate. But those pictures were just for myself,” Miller says. But when police told him to put his camera away while he was on a paid assignment for a local website, he refused. He was arrested and charged with nine misdemeanors: five counts of refusing a lawful order (because there were five cops); disorderly conduct, obstructing traffic, obstructing justice, and resisting arrest without violence.

“My blog started as a way to proclaim my innocence,” says Miller. He was acquitted of disobeying a police officer and disorderly conduct but convicted of resisting arrest. He successfully appealed that conviction. As that appeal was pending, he was arrested for a second time—this time, he says, while taking pictures of a cop leaning against his car. An officer deleted the photos, which he later recovered. He was charged with public intoxication; the charge was later dismissed due to lack of evidence.

As one might expect of a man who has made his name antagonizing the police, Miller conducts himself with a righteous confidence that can verge on defiance. In some of his videos, he becomes argumentative; in conversation, he is generally unapologetic about the confrontations he’s provoked. But pugnacity isn’t a crime; and, indeed, Miller makes a point of knowing the laws and not breaking them. “Everything I do, I know I’ll beat the charges, because I know the law,” he says.

Francisco Alvarado has been a reporter in Miami for the past 15 years, and has been with the alt-weekly Miami New Times for the past decade. This January, he wrote a mini-feature naming Photography is Not a Crime as one of the city’s best blogs. While some people in the community think that Miller is simply out for attention, “I think he’s really serious about holding police accountable,” says Alvarado. “His style is definitely abrasive, and in your face, but he gets stuff out there, and it is news.”

Miller never runs out of things to say when he talks about filming police. This shows through on his blog, which he updates at least once a day, sometimes more, with posts that are usually between 500 and 1000 words. He has a regular commenting community; while comments on a story have gone into the hundreds, the number usually stays in the double digits. His blog has received over 7 million hits since it first started. It’s housed on a photography website called Pixiq, which is owned by Barnes and Noble, and Miller gets paid based on page views. He says May is on track to be a record month for traffic; he’s had over 560,000 page views in the last 30 days.

Though most of his posts are about other photographers’ run-ins with police, Miller also covers his own exploits. He’s attempted to go through airport security with his camera rolling and the TSA’s policy printed and ready to show to agents. After being told a number of times he couldn’t record he happily blogged this February that a TSA agent knew the official policy and let him pass through. He conducted similar experiments on Miami’s Metrorail. The first time, he and a friend went with a print out of the law in their hand to “see if the Metrorail security guards knew the law when it came to photography. “They didn’t,” says Miller, who ended up permanently banned from the Metrorail system.

A month later, a news crew from Denver came to do a story on Miller, and when they asked where he wanted to film, he suggested they go back to the Metrorail. He ends up in an altercation with a security guard, who tries to slap his iPhone out of his hand. In response, Miller punched the guard. (All of this was caught on tape.) When police came, they watched the video and didn’t charge Miller, even though the security guard had a bloody lip, because the tape showed that the guard hit first. “I realized I can’t be so reactive,” says Miller. “But this also shows why it’s important to have cameras. They would have taken the word of the security guard over mine.” He has a pending lawsuit with the Metrorail for that incident.

“I do have a reputation, and I can see why people say I’m a troublemaker. I can admit that. I’m a rabble rouser. I go out and stand up for my rights,” says Miller. “I’m a journalist first, but I’m an activist when it comes to photography.”

On May 3, nine journalism and civil rights organizations sent a letter to US Attorney General Eric Holder, asking that law enforcement agencies be held accountable for intimidating and arresting people recording in public. “The right to record is an essential component of our rights at a time when so many of those witnessing public protests carry networked, camera-ready devices such as smartphones,” reads the letter. “We the undersigned call on authorities at the local, state and federal level to stop their assault on people attempting to document protests and other events unfolding in public spaces.”

Josh Stearns, the journalism and public media campaign director for Free Press, says the combination of traditional press associations with digital rights organizations was intentional. “We focused on not the amount of signers but having a small group of the right people who get at every angle of this issue,” says Stearns. “That combination of free speech, free press, and digital rights is really important as we move forward and think about how we advocate for the First Amendment in the digital age.”

Stearns says the timing of the letter to AG Holder was deliberate. “We want to assert the importance of these next couple months as a time where we need to be watching this and responding carefully,” says Stearns. “I think the key is to get away from treating this as a case-by-case basis and acknowledging there’s a national trend here.”

Miller’s trial is scheduled for July 25, 2012, and he’s raising money for his defense through his blog. “After the trial, I will file civil suit for deleting my footage. We need to send a message we won’t tolerate that,” says Miller. Officer Nancy Perez, the Miami-Dade policewoman who halted Miller at the Occupy eviction, maintains that the police did not delete his footage. “I can count seven videographers that were there taping the whole thing,” says Perez. “I had my own videographer there. Why would I need his?”

Officer Perez says that the bottom line is that people have the right to record officers. “They are not breaking the law,” says Perez, but she explains why she thinks these arrests might be happening. “I think there is a certain paranoia that’s occurring,” says Perez. “It’s not that they’re just going to show them in the line of duty. It’s the fact that a lot of unethical people do edit stuff and then spin it for other reasons.”

Perez says that possessing a press pass has nothing to do with people’s ability to record in public; but many police around the country do ask for credentials, and Stearns says that identifying yourself and your intentions is a good first step. “It shouldn’t be a necessity for your First Amendment rights to be protected, but I think in the heat of the moment, that is a helpful thing,” says Stearns.

Miller hopes others will go out and assert their rights to record. “Be professional,” he says “but be firm. Say no sir, the law is this, and I am completely within my rights to record you.” If asked to turn the camera off, “keep it rolling for your own self defense,” says Miller. “If they try to take your camera or delete your footage, then they are breaking the law.”

For his site’s fifth anniversary, Miller told readers he was planning to roll out a PINAC citizen-journalism press pass, so that his readers would be prepared when they’re asked to show press credentials. He plans to print and laminate the passes himself, and to outsource the process if they’re in high demand. He’ll be selling the passes through a new site he hopes will help him bring in money, called PINAC Nation, where he will sell merchandise related to his blog. The goal is to eventually hire a staff of two reporters to help him cover more stories. “In the beginning I had to search for these stories, and now they come to me,” says Miller. “I can’t cover all of them. A lot of stories go untold.”

Has America ever needed a media watchdog more than now? Help us by joining CJR today.

Alysia Santo is a former assistant editor at CJR. Tags: , , , , , , ,