photography incidents- managing encounters by j greenstein

8/6/2019 Photography Incidents- Managing Encounters by J Greenstein

1/4

Photography IncidentsManaging Encounters

By: Jonathan D. Greenstein

February 23, 2011

The following monograph is a complication of lessons learned, best practices and the authors personal experiences: It does not reflect any officialagency position or

policy. Before applying anything contained herein, ensure you consult your agencies policies and procedures and competent advisors.

Not a day passes without a report of suspicious photography being disseminated through

various law enforcement information sharing systems. While most of these incidents resolve to be

nothing more than innocent cases of people who are simply documenting their travels, prominent

buildings or in some cases semi-professional photographers seeking to expand their portfolio, there is

the potential for these cases to have either a terrorist nexus or a litigation motivation. The purpose of

this article is to address some of the issues that seem to crop up from time to time and the resounding

question: can they do that?

In addressing the terrorism nexus, it is well established that as part of the attack cycle there will be

initial/low level surveillance of potential targets followed by intense/high-level surveillance. What is

important to understand is that while there is no template that terrorist operators follow, most are at

the very least basically aware of counter surveillance measures employed at potential targets. Further,

they are likely cognizant of obvious indicators of suspicious activity that will trigger intervention and

may avoid them. This is not to say that during the surveillance stage a potential terrorist will not engage

in clumsy or obvious photography of a facility, quite the contrary. It is possible that during this stage of

planning they could very well do so as part of subterfuge or lack of experience. The fact is we just never

know.

For non-terrorists, the personal motivation to take photos of a facility is as endless as the facilities being

photographed. As previously noted, some incidents are tourists and others are creating a portfolio. For

tourists there may be complications due to language barriers, foreign documents and an aversion to law

enforcement; as with any other contact, diplomacy, tact and patience are critical. When dealing with

professionals or budding documentarians, they tend to know or believe they know their various rights

and may vigorously assert them; as with the earlier noted population: diplomacy, tact and patience is

the order of business.


2/4

Another population of photographers that may be encountered is what I have begun to call police

conduct litigants. They are not new. For many years there have been folks who purposely engage with

law enforcement for the sole purpose of eliciting potentially questionable conduct that they can later

exploit, be it for socio-political motivations or in pursuit of a lawsuit. As demonstrated by recent

settlements, there is a financial consequence if an officer steps over the line when mitigating potential

concerns over photography incidents.

They may very well know that a facility being photographed serves a sensitive mission or is part of

critical infrastructure. They may purposely loiter and take photos in an obvious manner to elicit contact.

They may be accompanied or have nearby a cohort who documents any contact with responding

personnel. They may demand to know the mission and function of the facility, quoting the Freedom of

Information Act or other legal basis. Contacting officers may be Rope-a-doped into arguments that could

very well end up on YouTube.

Lastly, there are the conspiracy theorists. The motivation for photographers in this category rests in

their strong belief about a particular subject. I included them in the same section as potential litigants

because they share some of the same traits. They strongly assert their rights to take photos, demand

citations of laws that justify the contact, may ramble on about this theory or that conspiracy. They may

also seek to document any assertions by police that photography is prohibited to further their theory of

a cover-up.

What I stress in responding to these last two types of incidents is the same as with any public contact:

diplomacy, tact and patience. Stick to the matter at hand. Avoid de-evolving and arguing. Keep it simple

and direct. Towards the close of this article I have included some possible steps to follow when

contacting individuals; they are only guidelines but they work.

Photography in Public Places

Several recent settlements and court decisions have reiterated that right to take photographs in

public places. Absent any major shift in laws, rules or regulations, the legality of standing in a public

place and taking photos of any subject; be it a person, place or thing will remain. While such conduct

may cause concern, it is generally legal. These recent cases generally showed that officers were either

misinformed about the legality to take photos in public places or were goaded into stepping over the

line. Consensual encounters morphed into detentions. Detentions turned into arrests and seizure of

cameras.

In no way am I discouraging making contact with the public, quite the contrary. If handled

professionally, such contacts reinforce law enforcements commitment to public safety and our

awareness of potential threats. Not to script the language that should be used during an encounter, but

to help build the framework I have suggested and used the following: Hello, I am Officer Smith of the

XYZ Police Department. The reason I have come over is because the facility you are taking pictures of is a

government building/potential target of criminals. I was curious as to if your are visiting our city or are a

professional photographer


3/4

This establishes who you are, who your work for, the purpose of the contact and serves to elicit a

response from the person contacted. It is not an interrogation, it is a professional encounter. It does not

need to specify the name of the agency behind the front door or the criticality of the asset.

While it is reasonable to approach an individual taking photographs or otherwise documenting a

sensitive facility, we must understand that their conduct is usually protected and our conduct must beabove reproach. Due to the varying legal framework that mayprohibit photography of certain facilities, I

leave it to the reader to ensure they are appropriately versed on what course of action they maytake.

General Response

The following should serve as a guideline for establishing policies and procedures when

responding to incidents. Be aware that different jurisdictions may apply differing standards and criteria

to engage in a stop and talk, field interview or other activity; consult with the appropriate members of

your legal staff and/or prosecutor before implementing any changes when a question exists.

-Observe the individual(s) until and only if such conduct raises a concern directly related to public orfacility safety. You should be able to articulate suspicions or concerns before initiating contact.

-Approach in a professional manner. Identify yourself, your agency and the reason for contact. Be aware

that individuals may record the contact. (In most cases, there is no or limited legal basis to prevent them

from recording you in public)

-Attempt to identify the person(s), any affiliations and the purpose of their activity. Remembering that

such encounters are voluntary and absent any local law requiring identification, they are free to

terminate the contact and leave.

-Unless there is reasonable suspicion or probable cause for an arrest exists do not imply the person isbeing detained.

-While a request to view images is reasonable, there is no requirement that they provide them or

divulge what they have photographed. A refusal normally would not elevate the contact.

-While complete and accurate information collection is strived for, the contact should only continue for

as long as reasonably needed in an attempt to identify the person(s) and the legitimacy of their activity.

In the end, if the contact does not reveal criminal conduct, the individual(s) should be thanked for their

cooperation and allowed to leave.

Final Thoughts

Remain alert for pre-operational planning; this includes suspicious photography of potential

targets. Know the law and what is allowed on the part of both the police and public. Document all

encounters and ensure suspicious incidents are validated and entered into the appropriate reporting

system. Be Safe!


4/4

This article is a complication of lessons learned, best practices and the authors personal experiences: It does not

reflect any official agency position or policy. Before applying anything contained herein, ensure you consult your

agencies policies, procedures and seek out competent advisors.

About the Author:

Jonathan Greenstein has been involved in law enforcement and public safety for over fifteen years,

having served as a patrol officer, field training officer, watch commander and criminal investigator. A

graduate of numerous advanced training programs to include Hostage and Crisis Negotiations, Terrorism

Mitigation and Tactical Operations. He applies his professional experience and training to the

development best practices, policy and in the law enforcement advisory role.

He may be contacted by email through:[email protected]
mailto:[email protected]:[email protected]:[email protected]:[email protected]

photography incidents- managing encounters by j greenstein

Documents