Glenn Harlan Reynolds

Last week, Buzzfeed reporter Benny Johnson went to work on a list of the seven ugliest federal buildings in Washington, D.C. But what he found was even uglier than the buildings: ignorant, heavy-handed law enforcement officers who told him — wrongly — that he couldn't photograph the ugly architecture.

Johnson repeatedly confirmed with the media-relations folks at these agencies that it was OK for him to photograph the buildings — as it is for any member of the public — but word hadn't filtered down to the guys with guns.

Johnson writes: "After I took this photo of a public walkway in front of the (Department of Energy) building, four armed guards surrounded me and my bike. I was ordered off my bicycle and told to hand over my camera. 'Where is your identification? Why are you taking photos of our building?' an officer asked me. I explained my role as a reporter and asked what rules I had broken. 'You are suspicious, and we are in a post-9/11 world,' he said. The four officers surrounded me right here, directly in front of the building entrance."

Here's the thing: They had no authority to do this. It's legal in America to take pictures of public buildings — and pretty much everything and everyone else in public. That's something that law enforcement agencies routinely take advantage of in arguing that people have no "reasonable expectation of privacy" when they're out and about and being surveilled by the government.

Under the Espionage Act, certain classified military facilities can't be photographed, but that's it. But if photographing buildings puts you at risk for being hassled, police often take it even more personally if you photograph them at work. As attorney Morgan Manning reported in Popular Mechanics, people who photograph police in the process of arresting — or beating, or shooting — suspected criminals often find themselves confronted by officers who demand that they hand over their cameras or delete the incriminating images.

Again, the police don't have any authority to do that. In fact, the United States Court of Appeals for the First Circuit has held in the case of Glik v. Cuniffe that the right to photograph police officers in public spaces is so clearly established that officers who break the law by interfering with citizens who do so can't plead "good faith" immunity. Good-faith immunity is supposed to protect officers who have to act quickly in areas where the law is unclear. The right to take photographs of police officers in public places, said the Court of Appeals, isn't unclear. (In fact, it's so clear that the Justice Department has written a letter to law enforcement agencies making that point.)

Now the same question is going before the United States Court of Appeals for the Second Circuit, which includes New York City, in response to the New York Police Department's practice of interfering with people who record its officers.

The question shouldn't even be close. Leaving aside the fundamental unfairness of law enforcement agencies filling the skies with drones and the streets with cameras and license-plate scanners while objecting to being recorded themselves, there's an even more significant reason: Unlike private citizens going about their personal business, police officers — and, for that matter, public buildings — are paid for by the taxpayers. The taxpayers should have a right to keep an eye on what their employees are doing.

Public servants all too often come to see themselves as public masters. But they're not. And some of them get it.

I'm happy to say that while the New York Police Department may suffer some confusion on this, my own sheriff, Knox County (Tenn.) Sheriff Jimmie Jones, does not. After firing a deputy who was recorded using excessive force against a college student, Jones announced that he's putting "body cameras" on the whole force so that everything officers do on duty will be a matter of record.

That's as it should be. Word may not have filtered down to less-civilized places like New York and Washington, D.C., but public employees have no on-the-job right of privacy that ordinary citizens don't enjoy. As the lawsuits pile up, perhaps they'll figure things out.

Glenn Harlan Reynolds, a University of Tennessee law professor, is the author ofThe New School: How the Information Age Will Save American Education from Itself.



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