Disturbing the Peace

In Philly, the cops will arrest you for taking pictures of them arresting people.

by Andrew Thompson

Jessica Kourkounis TROUBLEMAKER: Jauhien Sasnou was arrested for disorderly conduct after he took pictures of South Street cops clashing with concertgoers.

[ police state ]

"Get the guy with the camera!" Jauhien Sasnou heard.

Before he knew it, the 26-year-old freelance photographer found himself in handcuffs, under arrest for disorderly conduct and failure to disperse, and on his way to jail. His only crime, as best can be ferreted from police reports, is that he was taking pictures of South Street cops arresting revelers outside of the Theater of the Living Arts the night of Nov. 19, 2009, and the cops didn't like it.

That night, shortly before 11:30 p.m., the Belarussian band Mumiy Troll ended its performance at TLA, and the crowd spilled out in front of the venue, talking, smoking or waiting for friends. A security guard wandered over and announced, "OK, everybody, time to go!"

Of course, not everybody left. By the time a handful of Philadelphia bike cops rolled up a few minutes later, about 50 concert-goers remained. The bike cops reiterated the security guard's order to disperse. According to police records, one of the gathered told Officer William Gress Jr., "I'm not fucking going anywhere." As Gress moved to arrest him, another "approached [Gress] in an attempt to free" the first.

According to Sasnou and Oxana Miroshnichenko, 27, two friends who were outside TLA that night, a mêlée ensued. The cops began shoving and indiscriminately pepper-spraying the crowd, Sasnou says. Miroshnichenko caught some pepper spray in the face, stinging her eyes. (She was not arrested.) Sasnou says he'd begun walking away from the scene, but when he heard the ruckus, he whipped out his camera and began snapping pictures of what he deemed the police officers' excessive force. As he took pictures from the middle of South Street, one of the Philadelphia bike police took notice. (The pictures themselves, which Sasnou uploaded to his Facebook page, don't show egregious police activity.) "Get that guy with the camera!" Sasnou heard. An officer ran over and slapped cuffs on him. He was one of three arrested that night.

"The whole incident lasted three minutes or so," says Sasnou. "When I asked them why I was arrested, they did not answer anything."

According to the police report, Gress faulted Sasnou because he "remained on location and began to take pictures" after being ordered to leave. On Nov. 23, 2009, a community court judge found him guilty, and ordered that he pay a $148 fine and perform 24 hours of community service.

Civil rights lawyers say that Sasnou's experience isn't uncommon. Although there doesn't seem to be any hard data available, anecdotal evidence suggests that citizens who document police activity with cameras are frequently arrested.

"Philadelphia police often react badly to people photographing or videotaping them," says Mary Catherine Roper, staff attorney for the ACLU of Pennsylvania. "We've had a number of complaints of people arrested, held, yelled at and released and so on for taking pictures or videotaping police officers. It's not unique to Philadelphia at all, but it is a very frequent problem. And it's a blatant violation of people's rights."

Photographing cops in action is not prohibited under Pennsylvania law, but it's not exactly permitted, either. Ambiguous? Sure. This ambiguous legal status boils down to a confusing tangle of technicalities, and the difference between "not prohibited" and "legally allowed." Here's how the law works now, in all of its messy glory: The Pennsylvania Supreme Court first ruled in 1989 that recording law enforcement officials does not violate the state's wiretap act — the law that forbids audio or video recording without the consent of all parties involved — since the individuals being photographed are public employees in public spaces (which, indeed, was the case with Sasnou).

(According to Lt. Frank Vanore, a PPD spokesman, under department policy photographing police officers on public property is not supposed to be an arrestable offense.)

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Because neither the state Supreme Court nor the federal appeals court that oversees Philadelphia has ruled that such arrests violate either the First or Fourth Amendments — the ones regarding free speech and unreasonable searches and seizures, respectively — there's enough wiggle room for cops to round up anyone snapping photos of them from across the street, even if both the cop and the photographer are on public property. After all, if the cop doesn't like the idea of a citizen journalist or interested onlooker committing his image to film (or memory card), he can simply claim that the photographer was "creating a hazardous condition," as Gress said of Sasnou in the police report.

This, however, may soon change. In 2007, Brian Kelly sued the Borough of Carlisle, Pa., a small town west of Harrisburg, for what Kelly claims was a false arrest, after he videotaped a police officer during a traffic stop. During that stop, Officer David Rogers demanded that Kelly, who was in the passenger seat of the car Rogers had pulled over for speeding, turn over his video camera. After Kelly complied, Rogers arrested him for violating the state's wiretap law, a felony, even though the state Supreme Court already ruled that the wiretap law doesn't apply. A district court denied Kelly's motion for summary judgment — meaning, essentially, his request to get a judge to rule that his actions didn't violate the law. He is appealing in federal court.

Kelly's case has many potential outcomes, from inconsequential to precedent-setting. The U.S. Court of Appeals for the Third Circuit could say that Kelly didn't break state law, and that's that. But in a situation more favorable to those like Sasnou, the appeals court could rule that Kelly's arrest violated his constitutional rights, and prohibit such arrests in the future.

It is, perhaps, ironic in an age when, across the country, police cameras capture and ticket red-light-runners, and many traffic stops are videotaped from the dashboard of a squad car.

"Well, all of a sudden when the shoe is on the other foot, it's, 'Wait, wait, there's an intrusion of the wiretap act,'" says Paul Hetznecker, a Philadelphia civil rights lawyer.

There is, however, the question of whether police will abide by the judgment regardless of what it says. Ultimately, what does a legal precedent do?

"That depends on how professional the force is you're talking about," says Roper.

(andrew.thompson@citypaper.net)