For the second time since last year, the U.S. Department of Justice has weighed in on a federal lawsuit involving a photographer wrongly arrested for recording cops, urging the judge to deny qualified immunity to the arresting officers.
The case involves longtime White House photographer Mannie Garcia who was arrested June 2011 by Montgomery County police after recording them arresting a pair of youths as he stepped outside a restaurant with his wife.
“They grabbed my neck in a chokehold and kept knocking me down,” he said in a telephone interview with Photography is Not a Crime Monday evening. “And they kept saying, ‘stop falling down’ as they laughed.”
“They also smashed my head against the roof of the car.
They also threatened to arrest his wife and when they finally returned his camera, it was missing the memory card of the footage he had recorded.
Garcia, who had been part of the White House press corps for two decades, was stripped off his credentials when Montgomery County police called the U.S. Secret Service to inform them of his arrest, further attempting to discredit and silence him.
He also shot the iconic photo of Obama that went on to become a controversial copyright issue involving artist Shepard Fairey.
He was acquitted of the charges several months after his arrest and filed a lawsuit, prompting the county to file a motion demanding qualified immunity for the arresting officers.
On Monday, the U.S. Department of Justice stepped in, issuing a 13-page statement of interest on behalf of Garcia and the Constitution making it clear where it stands on this issue:
- First, the United States urges the Court to find that both the First and Fourth Amendments protect an individual who peacefully photographs police activity on a public street, if officers arrest the individual and seize the camera of that individual for that activity.
- Second, the United States is concerned that discretionary charges, such as disorderly conduct, loitering, disturbing the peace, and resisting arrest, are all too easily used to curtail expressive conduct or retaliate against individuals for exercising their First Amendment rights. The United States believes that courts should view such charges skeptically to ensure that individuals’ First Amendment rights are protected. Core First Amendment conduct, such as recording a police officer performing duties on a public street, cannot be the sole basis for such charges.
- Third, the First Amendment right to record police officers performing public duties extends to both the public and members of the media, and the Court should not make a distinction between the public’s and the media’s rights to record here. The derogation of these rights erodes public confidence in our police departments, decreases the accountability of our governmental officers, and conflicts with the liberties that the Constitution was designed to uphold.
Garcia, who has since had his credentials restored, said the incident still affects his status as a White House photojournalist because it left his reputation somewhat tarnished.
The last time the USDOJ weighed in on a case involving the right to record police was in May 2012 when it issued a statement of interest to the Baltimore Police Department regarding the Sharp vs Baltimore case.
That case is still pending, even though it was expected to be settled almost a year ago.
Last month, the Montgomery County Police Department proved once again that it has no respect for the Constitutional rights of citizens when an officer arrested a man for video recording during a traffic stop.
While it may not be legally binding, it is by no means an empty gesture.
“I think it carries a tremendous amount of weight,” said Mickey Osterreicher, general counsel for the National Press Photographers Association.
“This is not Mickey saying this, this is not (Garcia’s) lawyer saying this, this is not 215 journalism organizations saying this.
“This is the U.S. Government saying this.”