Accident witness: Officer threatened to take cell phone for taking photos

By Deborah McKeon
Temple Daily Telegram
Originally published Oct. 9, 2014

A Temple resident who witnessed an accident in which two men died on Thursday night said a Temple Police officer threatened to take his cellphone away because he was taking photographs and video.

Sean Ramirez said the officer threatened to take his cellphone away if he didn’t stop taking pictures, so Ramirez said he stopped and started recording instead. The same officer started yelling at him again to turn off his phone before it was taken from him, so Ramirez went across the street to take the final photo, he said.

Ramirez said he was afraid when the officer threatened a second time to take his phone.

According to federal rulings, people have the right to record officers in public places as they do their duties.

“I almost started to tell him that I had freedom of speech and freedom of press, but I didn’t think it would help the situation. It was very tense and everyone could tell that these people were dead in the car,” Ramirez said.

When asked if police officers had the legal right to take away a cellphone or camera from a person who is not committing a crime, Temple Police Department spokesman Cpl. Christopher Wilcox said, “I have no knowledge of the alleged actions of an officer. If the citizen feels there was a violation of policy or procedure, he or she may contact the department and speak with a supervisor.”

City Attorney and interim City Manager Jonathan Graham, Police Chief Gary Smith and city spokeswoman Shannon Gowan were emailed the same question but had not responded by press deadline.

The issue of people’s rights to use cellphones and cameras to photograph and film officers has been in the news and courtrooms a lot lately, Kelley Shannon, Freedom of Information Foundation of Texas spokeswoman, said.

In July a federal lawsuit filed against the Austin Police Department by Antonio Buehler resulted in a ruling by a U.S. magistrate judge that Buehler had the constitutional right to photograph and film police officers. Judge Mark Lane said private citizens have the right to record officers in public places as they do their duties and said that “the First Amendment protects the right to videotape police officers in the performance of their official duties, subject to reasonable time, place and manner restrictions.”

Buehler, a 36-year-old Army veteran, was arrested on New Year’s Day in 2012 as he videotaped a woman being arrested on Sixth Street. He said he was trying to capture the officers abusing the driver and her passenger.

Catherine Robb with the law firm of Haynes and Boone LLP in Austin is an attorney associated with the Freedom of Information Foundation of Texas.

“Police officers can somewhat limit photos if someone gets in the way, but they can’t stop filming or confiscate materials. A number of cases have addressed this issue, including some by the Department of Justice. Officers should never threaten citizens taking photos or videos. That is their right,” Robb said.

According to the American Civil Liberties Union, citizens have the right to photograph anything that is plainly visible from public spaces, including federal buildings, transportation facilities and police and other government officials carrying out their duties.

“Unfortunately, there is a widespread, continuing pattern of law enforcement officers ordering people to stop taking photographs from public places, and harassing, detaining and arresting those who fail to comply,” according to the ACLU website www.aclu.org/free-speech/know-your-rights-photographers.

The website includes the following information:

Police officers may not take or demand to view your digital photographs or video without a warrant.

Police may not delete your photographs or video under any circumstances.

Police officers may legitimately order citizens to cease activities that are truly interfering with legitimate law enforcement operations.

“Professional officers, however, realize that such operations are subject to public scrutiny, including by citizens photographing them,” according to the ACLU.

The ACLU website lists steps to take if a law enforcement officer stops or detains someone for taking photographs:

Always remain polite and never physically resist a police officer.

If stopped for photography, the right question to ask is, “Am I free to go?” If the officer says no, then you are being detained, something an officer cannot do without reasonable suspicion that you have or are about to commit a crime or are in the process of committing a crime. Until you ask to leave, your being stopped is considered voluntary under the law and is legal.

If you are detained, politely ask what crime you are suspected of committing, and remind the officer that taking photographs is your right under the First Amendment and does not constitute reasonable suspicion of criminal activity.