Some Philly Cops Need a Crash Course in the First Amendment

Citizens have the right to snap smartphone pics of police in public.

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Over the past 18 months citizen-photojournalists have managed to document—with little controversy—the killing of a dictator, the downfall of a fashion icon and an unprovoked pepper spray attack on a group of peaceful University of California protestors. But for one overly sensitive Philly cop, all it took was a few moments in front of the lens during a routine traffic stop to push him over the edge and into dangerously undemocratic territory.

According to press reports, on the night of March 14th, Ian Van Kuyk was sitting on his porch in Point Breeze with his girlfriend when police stopped a car in the street in front of his house. Sensing an opportunity to complete a required night photography assignment for his photojournalism class, the 24-year-old Temple junior grabbed his school-issued Nikon and started documenting the unfolding scene with a quick succession of non-flash exposures.

The story is supposed to end with Van Kuyk selecting his best shots and submitting them to his teacher for critique. Instead, things got ugly. Mickey H. Osterreicher—an attorney for the National Press Photographers Association, which has taken an interest in the case—explained what happened next in a letter of protest to Philadelphia Police Commissioner Charles Ramsey, District Attorney Seth Williams and Mayor Michael Nutter:

“Although he never came closer than 10 feet to the scene, he was ordered back, voluntarily backed up, and was at least 30 feet away when a uniformed police officer approached Mr. Van Kuyk in an aggressive manner demanding that he stop … Without provocation the officer then began pushing and shoving Mr. Van Kuyk. In response to Mr. Van Kuyk’s statement that his rights were being violated in public domain … the officer is alleged to have responded “Public domain, yeah we’ve heard that before!” whereupon he threw Mr. Van Kuyk to the ground and began pushing his face into the sidewalk.”

Van Kuyk was handcuffed and arrested, and he spent the next 24 hours in a jail cell; when his girlfriend tried to recover his camera, she was locked up too. (The camera, and the photographs on it, were eventually returned; and, in what one might call a case of divine justice, one of his photos was published by the Daily News.)

For their part, the police are sticking to their story that Van Kuyk wasn’t arrested for taking pictures at all; instead, they say he’s guilty of disorderly conduct, obstruction and resisting arrest—three catch-all charges that cover everything from raising your voice in public to taking off all your clothes while singing Hoobastank’s “The Reason” and that are favored by police when no legitimate offense will stick.

The Van Kuyk case would be disturbing enough if it was an isolated incident; sadly it is not. Last June, a West Chester woman, Annette Selby, was detained for using her cell phone to videotape police in South Philadelphia who were using what she thought was excessive force to subdue a suspect. She was eventually acquitted, but not before being suspended from her job as a result of her arrest.

Selby filed a federal lawsuit against the city and three police officers last September. That same month, Daily News reporter Jan Ransom relayed the harrowing story of Shakir Riley and Melissa Hurling, two innocent bystanders who were assaulted and had their cell phones destroyed for attempting to record an incident of alleged police brutality on a Wynnefield street. Within weeks of the story breaking, Commissioner Ramsey issued a policy memo stating in no uncertain terms that officers should not only accept that they will be photographed and/or filmed, they should expect it.

“Police personnel shall not interfere with any member of the general public or individuals temporarily detained from photographing, videotaping, or audibly recording police personnel while conducting official business or while acting in an official capacity in any public space,” the memo instructed. “Under no circumstances will any recording device being used to photograph, videotape or audibly record any police personnel be intentionally damaged, destroyed or images deleted by police personnel.”

But judging from what happened to Ian Van Kuyk, at least some local officers don’t appear to have gotten that memo. The Pennsylvania chapter of the American Civil Liberties Union says it is close to filing several more lawsuits against the Philadelphia Police Department for the wrongful arrest of innocent bystanders who did nothing more than film—and in some cases just watch—police at work.

The framers of the Constitution were explicit in their intention that a functioning democratic republic depend on the “informed consent” of the electorate, and they made certain to safeguard the rights of citizens to observe their government and its representatives in action. As recently as last August the U.S. Circuit Court of Appeals in Boston—in the case Glik v. Cunniffe—confirmed:

“[A] citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”

All private citizens, be they journalists, journalism students, bus drivers or homeless people have the right to take photos of anything and anyone they can reasonably aim a camera at while they are in a public place. Even if someone asks you not to take their picture, you are under no obligation to stop (you might get a black eye, but you shouldn’t go to jail). In other words, as long as you are in a public location, you have every legal right to shoot (with a camera, that is) children, police officers, military officials, trains, bridges, private homes and government buildings without the threat of repercussion.

My guess is that when all is said and done, the charges against Van Kuyk will be dropped. But that hardly means he will be the last photographer to have his rights violated by an overly ambitious law enforcement official. There are nearly 100 million smartphones in circulation in the United States, each of them equipped with a digital camera capable of capturing still and video images. Every one of their owners is a potential citizen-photojournalist; by extension, each is also a potential victim of police overstepping. If you are one of them (and chances are you are), I suggest you use the next 10 minutes to learn your rights.