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Dallas Police Speaks With Forked Tongue When it Comes to the Right to Record

In April 2014, the Dallas Police Department’s top-rank leadership made it clear they support the concept of the right to photograph and record in public.

But the department’s Internal Affairs Division, the Dallas Police Association (DPA), and a small but troublesome and aggressive minority of officers on the street have adopted a completely different and opposing position whereby they do all they can to protect officers who interfere with photographers, no matter how damning the evidence.

To understand this confusing picture, you need to know the backstory behind the ‘right to photograph in public’ concept in Dallas.

The DPA’s president, Ron Pinkston, went on record opposing the public’s right to take photographs of police officers. This is what he told CBS11News on April 10, 2014:

… [Pinkston] wants citizens to stop taping because he worries someone will get hurt.

“It’s creating a major officer safety issue,” he [Pinkston] said. “We don’t know who it is pulling behind us. We don’t know they’re there to videotape, they might be part of… if that guy has just done a kidnapping they could be part of the kidnapping. You don’t know.”

Four days later, Dallas Chief of Police David O. Brown, in response to Pinkston’s statements, sent a one-sentence email to myself and the National Press Photographers Association (NPPA)’s general counsel, Mickey Osterreicher:

The department supports your position [on the right to photograph and record in public] and we encourage citizens to do so safely. David O. Brown, Chief of Police

Dallas Police Chief David O. Brown

Dallas Police Chief David O. Brown

nppa

In October 2014, The Dallas PD co-hosted – with the Dallas Sheriff’s Office –  the first NPPA Right To Photograph and Record in Public program in North Texas for nearly 200 law enforcement officers.

Chief Brown was unable to attend, but he made sure his top commanders were at the event. A member of the Dallas police social media team participated on the public discussion panel held that evening, along with Pinkston, First Amendment attorney Mark Fuller (Vinson & Elkins), and Dallas Morning News photography editor Guy Reynolds.

For weeks after the event, division chiefs were attending roll calls to tell the officers the public had a right to photograph them in public, and they better get used to it.

Dallas "Right to Photograph & Record in Public" public event panel - Ron Pinkston (DPA), Marc Fuller (Vinson & Elkins), Maj. Max Geron (Dallas PD), and Guy Reynolds (Dallas Morning News) - moderator is Mickey Osterreicher (NPPA).

October 2014: Dallas “Right to Photograph & Record in Public” public panel discussion: (l-r) Ron Pinkston (DPA), Marc Fuller (Vinson & Elkins), Maj. Max Geron (Dallas PD), and Guy Reynolds (Dallas Morning News) – moderator Mickey Osterreicher (NPPA). (Photo / Avi S. Adelman)

sftrail

On March 27, 2015, Dallas Police Senior Corporal Jimmy Thongrivong and his partner were biking down the Santa Fe trail en route to a call when Thongrivong suffered a heart attack and collapsed on the pavement.

I heard the “assist officer” call on my police scanner and rushed to the scene, just a few blocks from my home. Within moments of my arrival, police officers were ordering me to “go away.”

Officers were ordered to “get me out” of the area; they followed me around as I walked around the scene, while verbally harassing me and asking if I had somewhere else I should be. [Complete photo library at this link.]

I filed a 24-page complaint including photographs on April 10, 2015 with internal affairs against several Dallas police officers for aggressively interfering with my First Amendment right to take photographs of officers conducting official duties in a public place.

It was later amended to include a transcript of the dashcam video of an officer calling me a piece of crap under his breath several times, and telling other officers, “Is there anybody you just want to punch the crap out of?? I wish he had gave me any reason to put him in jail.

Dallas police officers actively working to block photographer from taking pictures of an officer who suffered a heart attack on the Santa Fe Trail, March 27, 2015.

Dallas Police officers Lt. Earnest Sherman and Sr. Cpl Michael Welch actively working to block a photographer from taking pictures of an officer who suffered a heart attack on the Santa Fe Trail, March 27, 2015. (Photo / Avi S. Adelman)

Pinkston accused me of interfering with the treatment of the officer and having no respect for the officer or his family. He followed it up with an email, a Facebook post (below) and a quote in the Dallas Morning News, accusing me of trying to get a “money shot.”

Full disclosure: CBS11 used two photos from the scene in their story about the officer’s heart attack that evening. The photos were credited to me, but CBS11 did not pay for their use.

Ron-Pinkston-383x640

Internal Affairs immediately kicked the complaint back to the Deputy Chief for the DPD Central Division for review. But this chief was on a long-term legislative assignment in Austin (followed by a three-week class in Boston and finally, a vacation), so nothing happened for nearly three months.

When the chief returned to duty in Dallas in July, he was promoted to the Department’s Command Staff. The complaint was returned to internal affairs on July 19, where it languished for three more months.

The department’s lawyers were simultaneously stonewalling the release of a video from a bodycam worn by the supervising officer at the Santa Fe Trail, alleging it showed medical treatment protected by HIPAA.

It was finally released after the Texas Attorney General eviscerated the lawyers for completely ignoring the Open Records procedure and using bullshit excuses not covered by the Public Information Act to block the request. Click here to read the Dallas Observer‘s mic-dropping story about why the City Attorneys‘ bumbling efforts to block the video’s release were a complete failure.

When the bodycam tape was released in August 2015, it showed Sr. Cpl Michael Welch, who was issuing lots of orders to other officers while running around like a chicken with his head removed, yelling “GET HIM OUT, GET HIM OUT upon seeing me arrive on scene, even though I was still hundreds of feet away, walking up the side of the trail. The video posted below shows the first few minutes of the event only.

Photographs, dashcam audio and the complete bodycam video proved I was never closer than 35 feet to the officer on the ground, but I was physically blocked and verbally harassed by officers, and was not interfering with the paramedics treatment in any way.

The nearly 16-minute video clearly showed a complete loss of control of the situation by Sr. Cpl. Michael Welch, and that the ambulance was delayed in arriving because police officers were unable to tell Dallas Fire Rescue dispatchers their exact location along the Santa Fe Trail.

The tape also did not include any sensitive medical treatment scenes, as the attorneys had claimed.

The bodycam tape showed at least two other persons were allowed to walk on the trail only a few feet from the officer without being stopped or sent back from the scene, while paramedics were running an saline IV to the officer (see photo below) Quoting NPPA’s Osterreicher:

“While the press may not have any more rights than the public in terms of access, they certainly don’t have any less rights, either.”

Freezeframe from bodycam video, showing one person (possibly a student) walking through treatment area without any interference by Dallas PD officers.

Freezeframe from bodycam video, showing one person walking through treatment area without any interference by Dallas PD officers while paramedics administered an IV. (Source: Dallas PD Bodycam)

In early December 2015, I met with internal affairs investigators to review the documents, videotapes and transcripts from dashcam and bodycam videos. It would be a surprise to no one if a report is not presented until after the one-year anniversary of the incident in late March 2016. Don’t expect any disciplinary action, however.

In Dallas, police officers can have sex on the job while working at the department headquarters without being punished. Do you really think anyone is going to get in trouble over pesky First Amendment issues?

Meanwhile, the Texas Attorney General is still reviewing a request from Dallas PD attorneys to block the release of an investigative report from Public Integrity Division (which looks at actions by officers which could result in criminal charges) completed before the Internal Affairs Division started their investigation.

record

In early 2015, a draft version of the department’s photography in public policy was released in response to an open records request. This draft reflected or exceeded the best practices of police departments around the United States. It outlined in excruciating detail all the issues and procedures to be followed by officers and supervisors who encounter the public taking their photographs of them working anywhere in public.

In short, it was perfectly awesome!

But when the department issued the final version in May 2015, it was a one page summary of the First Amendment. No guidelines, no procedures, no details, no prohibited acts.

It is increasingly common for uninvolved bystanders at the scene of police activity to photograph and/or video/audio record the actions and conduct of police officers. Officers of the Dallas Police Department should simply assume at any time a member of the general public is likely to observe and perhaps even photograph or video/audio record their activities.

As a result, officers must understand any bystander has a right to photograph and/or video/audio record the enforcement actions of any police officer so long as the bystander’s actions do not interrupt, disrupt, impede or otherwise interfere with a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law.

DPA’s Pinkston told the Dallas Morning News his association had nothing to do with the document being eviscerated. He said the draft policy was three pages too long, making it too difficult for the officers to remember everything.

… Pinkston said he is happy the policy was shortened. He said the length could make it as convoluted as the maligned, sometimes redundant foot-pursuit policy that police officials recently simplified.

“Four pages is a lot for officers to have to go through versus a more concise general order,” Pinkston said.

The Dallas Observer called out the policy for what it was – watered-down – and put the blame squarely on the DPA –

Also gone are two pages further detailing when and how officers can interfere with photographers or seize cameras (almost never), including an entire section entitled “Officer Responsibilities,” which, among many other things, prohibits officers from shining a flashlight in a bystander’s camera to keep him from getting a picture.

It’s fair to wonder why all the missing language disappeared. Given that the Dallas Police Association has been aggressively lobbying for a state law restricting citizens’ right to photograph and, er…educating policymakers and journalists on the danger posed by cop watchers, some sort of behind-the-scenes arm-twisting by police unions seems likely, but who knows.

Pinkston … declined to comment and DPD hasn’t yet made anyone available to talk about the new rules or their evolution.

The Observer asked NPPA’s Osterreicher for comments, and he was blunt:

… Osterreicher reviewed it [the new policy] this morning. It is, he says, utterly terrible. Possibly worse than having no policy at all.

“I’m extremely disappointed in the general order that they actually released, which is one page and, unfortunately, I think will not provide officers with the direction that they need nor explain to them why both citizens and journalists have the right to photograph,” he said Wednesday.

… “You can’t discipline an officer without a policy,” Osterreicher says. “Based on this policy I don’t see where, no matter what an officer does, that there would be any discipline at all that would stick.”

funches

On November 12, a stolen car is spotted by officers driving through an East Dallas neighborhood. During the pursuit, the car crashes into a telephone pole. Within moments, the driver is taken into custody. But there’s a teenager in the vehicle with him.

After hearing the incident on a police scanner, which was happening just a few blocks from my home, I headed out with my camera, looking for a story for my neighborhood blog.

Running the scene was Dallas Police Officer Ransom Funches, Badge #6960. I parked my car on a side street about 300 feet west of the incident, and started walking towards the scene. When I was about 50 feet behind the second squad car parked behind the crashed-out stolen car, Funches yelled, “You need to get back now. Don’t come any closer.”

I then crossed the thoroughfare and took big view photos – the crashed car, the teenager sitting on the curb, and the squad cars. I crossed the street again at the corner and walked to the front lawn of the corner house, putting about 50 feet between myself and the teenager, with a large tree in between us.

Valencia and Lindsley Avenue, Dallas TX November 12, 2015 (Photo / Avi S. Adelman)

Valencia and Lindsley Avenue, Dallas TX November 12, 2015 (Photo / Avi S. Adelman)

Funches clearly was not happy with my presence. While talking to a civilian observer in the squad car, he made sure to pay attention to my position on the lawn. Just to make sure I was not paranoid for no reason, I took one step to the left, so the tree blocked the officer’s view of me standing on the lawn. Funches then leaned back far enough to make sure he could still see me.

Dallas PD Officer Ransom Funches, giving his best imitation of a Vulcan death-stare (photo / Avi S. Adelman)

Dallas PD Officer Ransom Funches, doing his best imitation of Luigi’s death-stare (Photo / Avi S. Adelman)

The teenager sitting on the curb was clearly not being honest in his answers to the officers. Whatever information he gave them was not checking out, and soon a heated discussion ensued between officers on the scene – “What the heck do we do with this kid??”

"You take him home!" "I ain't putting him in my car - YOU take his butt home." (photo / Avi S. Adelman)

“You can take him home!” “I ain’t putting him in my car – YOU take his butt home.” [Not actual quotes, but you get the idea] (Photo / Avi S. Adelman)

By now, Funches was really irritated by my presence – and without provocation began hurling verbal insults at me, over the top of teenager’s head. That’s when I took out my smartphone to start recording these pearls of law enforcement wisdom.

I am irritated enough right now, okay?? You're not paid, we are, that's how it goes.

I am irritated enough right now, okay?? You’re not paid, we are, that’s how it goes. (Photo / Avi S. Adelman)

The soundtrack was not the best quality due to noise from leaf blowers being used nearby, but I was able to extract enough sound bites to show Funches’ intent – Intimidate and verbally abuse the photographer in order to force him to stop taking photographs and leave the scene. So much for a professional attitude while wearing a uniform.

Funches was wearing one of the department’s just-issued bodycams, and the video file has been requested. The Dallas PD – consistent with their recent behavior – is stalling on the delivery of the video, issuing a notice of at least a 20 business day delay on top of the legally-mandated 10 days to deliver the file.

Do you see what I see?? A big bodycam, and that red light means it has all of Funches' pearls of law enforcement wisdom on tape.

Do you see what I see?? It’s a bodycam, and that red light means it recorded Funches’ pearls of law enforcement wisdom. (Photo / Avi S. Adelman)

After returning to my office, I immediately emailed the (new) Deputy Chief for DPD Central Division a summary of the incident, including a transcript of some of the recorded comments and a few photos. Then I made an unusual offer: In return for not filing a complaint against Funches with Internal Affairs …

  • You inform the officer he was out of bounds. Way out of bounds for his comments to me. You might get the bodycam tape first (I am asking for it too).
  • You inform the officer I had a right to be there, taking photographs, and it does not matter that the kid on the ground is a kid. It’s called public right of way.
  • You inform the officer that the First Amendment protects my right to photograph him in the public arena. Period.
  • The officer will send me a letter – not an email! – apologizing for his remarks and explaining he now has a better understanding of the right to photograph and record in public.

The offer had a one week deadline. The Deputy Chief admitted he could not make any promises on behalf of the officer, but he would pass the information on. A week passed without any action, so a complaint was filed with Internal Affairs on November 20. The complaint was amended with an almost-complete transcript of Funches’ comments, pending the release of the bodycam video.

You can read the (almost entire) conversation between Funches and myself at this link, but here are a few of his words of wisdom:

FUNCHES Do you not have anything better to do with your life??

PHOTOGRAPHER Do you have a problem, sir??

FUNCHES Yeah, I have a problem with you pointing a camera at me…

PHOTOGRAPHER That’s a good deal sir, I appreciate your..

FUNCHES You don’t have anything better to do with your time??

and

FUNCHES You do know he [the minor] does not appreciate you taking his picture?

PHOTOGRAPHER Thank you, he’s in the public right of way, it doesn’t matter what he appreciates.

FUNCHES I am just letting you know…

PHOTOGRAPHER I don’t need to know, I already know the rules…

FUNCHES I let you know…

PHOTOGRAPHER It doesn’t matter what he says, it’s in the public…

FUNCHES It does matter … you need to respect his privacy…

PHOTOGRAPHER I am respecting his privacy. I am ignoring you.

and finally,

FUNCHES I am irritated enough right now, okay? You’re not paid, we are, that’s how it goes.

It’s clear from the photos Funches spends a great deal of time working out, which is a good thing if you are a police officer. I told the Deputy Chief I genuinely believed Officer Funches was about to lose his temper and/or arrest me on some catch-and-release charge. But an internet search for stories about Officer Funches showed my concern was well-placed.

On December 11, the Department’s Internal Affairs Division sent a letter stating:

_DSC1689

Word for word, it was the same letter sent after the Santa Fe Trail incident.

evil

Is this how things work at Dallas PD's Internal Affairs Department???

This is how the Dallas PD’s Internal Affairs Department regards complaints about officers interfering with photographers.

When it comes to complaints filed against officers for preventing photography in public, or hurling verbal abuse at citizens with cameras, the Internal Affairs Division and department attorneys clearly want Hear No Evil, See No Evil, Speak No Evil outcomes. Instead of investigating these complaints for what they are – serious departmental and civil rights violations – and punishing the officers, they push the complaint back to the Division level, where the offending officer might get no more than a Don’t do that again or no more donuts for you lecture from the Division Chief over a cup of coffee. Or, better, nothing happens at all.

Upon receiving this form letter, I immediately sent an email to Chief Brown, demanding the investigation be brought back to Internal Affairs (no matter how long that might take) and that the Dallas PD start taking these First Amendment violations more seriously.

This complaint is not just about simple violations of department policy, which obviously cover this officer’s very outspoken and offensive remarks to me that day.

We are talking about violations of my Constitutional right to take photographs in public, violations of DPD General Orders 331 regarding those rights, and the fact that any officer with Mr. Funches history – insubordination, disrespect to DPD civilian personnel, lying about off-duty work and – oh my – assaulting his wife – should not even be on the force dealing with the public.

When I filed my complaints in April against several officers in regards to the Santa Fe Trail incident, the issue was kicked back down to Central, where it languished since Chief Tittle was in Austin for several months on department business. It eventually was kick backed to Public Integrity, where it sat again for several months, and only last week was I interviewed by the IA team on this issue. That is nearly nine months since the initial complaint was filed.

How long do you think this complaint will sit before someone bothers looking at it?

The issues in this complaint are DEPARTMENTAL issues: Despite participating in the “Right to Photograph and Record in Public” last October 2014, and the issue of the very-watered down policy this summer, the Department has not come to grips with the problem of officers interfering with the public taking their photographs on public streets.

This is not something that will be smoothed over by a cup of coffee and a meeting with the Central Division Chief. Officer Funches is a walking time-bomb who apparently does not care about policy decisions if they do not suit him.

When I filed my original complaint, I noted that I was in fear of being arrested by Officer Funches. Only after seeing his history online, did I realize – Damn, that guy would have no problem beating the crap out of me, all the while smiling.

NPPA’s Osterreicher was not pleased either – not at just this nonsense but also how the department was clearly not putting any serious effort into investigating the Santa Fe Trail incident, and a ‘right to photograph’ policy that is little more than a recitation of the First Amendment. It was as if the October 2014 presentation on the right to photograph in public had never happened.

He sent a letter to Dallas PD Chief David O. Brown on December 15th, and pulled no punches:

Mickey Osterreicher, NPPA's General Counsel

Mickey Osterreicher, NPPA’s General Counsel

… To say I am extremely disappointed in the way his complaints have been handled is an understatement but not at all surprising given the DPD’s almost complete capitulation to the union in issuing its watered-down policy regarding the right of journalists and citizens to record police and first responders performing their official duties in a public place. All of this is more than disheartening considering your department’s support of, and participation in, the training program and panel discussion I presented on these issues in October 2014 in Dallas.

The ongoing incidents involving officers from your department interfering with Mr. Adelman’s right to photograph matters of public concern, the overall contempt members of your command staff continue to exhibit in the self-serving “investigations” of formal complaints, and the failure to release public records is a disgrace. Even more telling is your lack of courtesy in failing to acknowledge or respond to my previous correspondence regarding these matters.

In the criminal justice system there are two ways to approach things. The easy way would be to improve your department’s policies, training, transparency, and accountability. The hard way would be to continue to ignore the letter and spirit of your own Mission Statement and Code of Conduct resulting in legal action and/or investigation by the U.S. Department of Justice, unnecessarily costing taxpayers hundreds of thousands of dollars.

It is my sincere hope that you take the more commonsense and professional course.

As of this posting, neither Chief Brown nor his staff has replied to either message. Stay tuned for updates.

Dallas police

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