MTA warned: Let photographers shoot
ACLU tells agency police can't forbid taking pictures
It wasn't until he came to Baltimore, he said Tuesday, that he was detained for committing photography.
American Civil Liberties Union of Maryland put the Maryland Transit Administration on notice Tuesday that it intends to file suit over the conduct of transit police in ordering Fussell and another photographer to stop taking pictures. The group warned that unless the agency meets a series of conditions by Sept. 1, it will take the MTA to court — where it expects to win.
"Photography is expressive activity that is protected by the First Amendment," said ACLU staff attorney David Rocah. "If you are legally present, you have a right to take photographs."
Rocah said the ACLU raised the right to take photographs in 2006 after an officer ordered one of its staff members to stop filming at a station. He said the ACLU chose then to try to resolve the issue amicably — a decision the attorney now calls an error the group will not repeat.
"Our time for friendly discussion is long since past," Rocha said. "We tried that for five years to apparently zero effect."
The MTA declined to comment on the ACLU warning, saying Tuesday that it had just received the letter. But a spokesman pointed to a policy in the agency's media guide urging people who want to photograph MTA facilities to seek permission.
The right of photographers to take pictures in public places has been a point of contention virtually since the invention of the camera. But the disputes have become more frequent — and more contentious — since the terrorist attacks of Sept. 11, 2001, which prompted police to challenge individuals who take photos or video of public infrastructure as potential security risks.
Civil libertarians and rights advocates say police have been given no new powers to curb photography since 9/11. In many cases, they say, police are making up laws and rules on the spot and issuing orders they have no right to give.
Mickey Osterreicher, general counsel for the National Press Photographers Association, said it's an issue he deals with all the time.
"I call it the Patriot Act gone wild," he said. "For some reason, police see someone with a camera and they don't want them to take pictures or want to assert their authority."
It was two such confrontations early this year that prompted the ACLU to issue its lawsuit threat in a letter to the MTA police chief, Col. John E. Gavrilis.
The organization says an MTA police officer approached Olev Taremae of Bethlehem, Pa., on Feb. 20 as the avid photographer and railroad enthusiast took pictures of Baltimore's light rail system at Mount Royal Station.
In the letter, the ACLU says Officer Angela Rawlings told Taremae it was illegal to photograph rail operations in Maryland, but later backed off that assertion and said it was against MTA policy.
"Needless to say, both assertions are simply untrue," Rocah wrote. He added that he was "flabbergasted that officers still do not know the relevant legal rules, or deliberately misrepresent them."
Taremae agreed to stop shooting and leave but was given a warning notice — a copy of which was obtained by The Baltimore Sun — with none of a list of 18 violations checked.
The ACLU said Taremae would not discuss the incident. Fussell sat Tuesday for a video interview via Skype from his home in Portland, Ore., to discuss his experience.
Fussell, a student at Western Oregon University who says he takes 15,000 to 20,000 pictures a year during his travels around the country, said he has a particular interest in transportation systems.
Fussell said he got off a northbound light rail train at Baltimore's Cultural Center station on March 21 to transfer to a train to Penn Station. He said he was taking pictures of passing trains when an MTA employee told him the activity was forbidden and she would summon police.
In the letter, the ACLU says three officers who responded "acted in a hostile and threatening manner to someone who did absolutely nothing wrong, spewing misstatements of the law at every turn."
Unlike Taremae, Fussell refused to stop filming when officers told him to "cease and desist" — asserting that he had a constitutional right to take pictures in a public place. He captured the encounter in a video now posted on YouTube under the headline "Detained in Baltimore for Photography."
Fussell said he was especially concerned that there be a record of his interaction with police because he is hearing-impaired and depended on lip-reading to understand the officers.
"I know my rights, and I did my best not to break any laws," Fussell said. "I didn't feel like shutting the camera off because they had already been dishonest with me from the get-go."
The video shows officers repeatedly demanding to see Fussell's identification and Fussell refusing to show it, though he did identify himself verbally.
Rocah said Fussell was within his rights to say no.
"You don't have to show your ID to take a picture any more than you have to show an ID to read a newspaper or a book," the lawyer said.
Officers told Fussell during the half-hour incident that his filming violated the federal Patriot Act and that his audio recording broke a Maryland law against wiretapping a private conversation without consent.
Rocah dismissed both contentions, saying that the Patriot Act does nothing to restrict photography and courts have ruled that the Maryland wiretap statute does not shield officers performing their duties in public because they have no reasonable expectation of privacy.
"There is absolutely nothing they say about the law or the MTA's rules that is correct," Rocah said.
The video shows that at times during the incident, Fussell was not free to leave.
"You realize when a train gets here, you're not going to leave. You understand that?" one of the officers told Fussell.
Fussell missed at least one train to Penn Station before boarding another. Officers objected, but Fussell said he was neither arrested nor cited for any offense. He said that at no time during the confrontation did officers touch him.
Fussell said he missed the MARC train he wanted to take to Washington and had to take Amtrak. According to the ACLU letter, MTA officers followed Fussell to Penn Station and asked Amtrak Police to detain him. Fussell said he showed his ID to a railroad officer because he knew identification was necessary to take an Amtrak train. He was then permitted to board.
The ACLU said it is preparing legal action to force MTA police to comply with the Constitution. It gave the agency until Sept. 1 to make amends to Taremae and Fussell and to promulgate policies that protect the rights of photographers and videographers without any requirements for special permits.
John Wesley, a spokesman for the MTA, said the agency would have no immediate reply to the allegations in the ACLU letter.
Wesley said MTA policy, as spelled out in its media guide, asks members of the public to seek permission before filming.
"If you film, photograph or interview customers on MTA property or film any MTA property or stations, please make your request through the Office of Communication and Marketing," the policy reads.
"It doesn't say what the consequences are if you don't," Wesley said. Asked whether the policy would pass legal muster, he said "I'm not sure whether or not it's constitutional."
Osterreicher, the photographers' group lawyer, said the courts have ruled repeatedly that transit agencies cannot impose such requirements.
"If you are in public, you have a First Amendment right to photograph in public. Period," he said.
Fussell said he has photographed transit facilities in large cities from San Diego to Chicago to Washington and had never been treated the way he was in Baltimore.
"It was the first time I've been asked for ID and the first time I've been detained ever," he said.
Soon after the incident, he said, friends helped put him in touch with the Maryland ACLU. He said he's prepared to become a plaintiff and seek damages if the issues can't be resolved.
Even though his previous visit didn't turn out so well, Fussell said he would not hesitate to return to Baltimore.
"I'll come back and I'll have a camera in my hand," he said. "I don't care what happens."