Just Making It Up As They Go Along

Via Radley Balko, Carlos Miller from Photography Is Not A Crime, and Stretch Ledford, a veteran photojournalist currently pursuing a Masters degree in Multimedia Journalism at the University of Miami School of Communication, decided to do a test.  After speaking with the head of security of the Miami Metrorail, they planned to take their cameras aboard a train and go three stations to see what would happen.

Ledford had done his homework on this project, having interviewed Miami-Dade Transit head of security Eric J. Muntan who informed him that people had the right to take pictures within the Metrorail station with the exception of commercial photography, which needed prior approval.

Muntan also sent him Miami-Dade County Code 30B-5 (2) which states the following:

Commercial photography or recording. No person, unless authorized in writing by MDTA or the County Manager when appropriate under Section 2-11.14 of this Code, shall take still, motion, or sound motion pictures or sound records or recordings of voices or otherwise for commercial, training or educational purposes, other than news coverage anywhere in the transit system.

There also happens to be an exemption towards students and faculty regarding the “educational purposes” portion of this code, which is outlined in Miami-Dade County Ordinance Sec. 2-11.14 (2) (iii).

“[n]othing in this section shall require any permit from: (i) Individuals filming or video taping only for their own personal or family use; (ii) Employees of print or electronic news media when filming on-going news events. This exception shall not apply to simulations or re-enactments orchestrated by print or electronic news media; or (iii) Students and faculty filming exclusively for educational purposes. “

However, Muntan also told Ledford the contracted security guards at the stations are allowed to harass question photographers.

As we spoke on the telephone and as I informed you, in a proactive effort to maintain the highest vigilance of the MDT system, MDT’s contracted security officers and this office’s security supervisors do reserve the right to question those individuals who may be engaged in any photographic activities in or around MDT property.

And so, Carlos and Stretch took to the rails.  Or tried to take to the rails.  This is what happened:

For obvious reasons, Carlos and Stretch focus on the photography aspect of their encounter, and provide a superb description and discussion of what went horribly wrong here.  No need for me to repeat their commentary, and it’s definitely worth the read.

Instead, my focus is on something a bit more fundamental, and unfortunately more pervasive.  Just as people commonly attribute magical powers to police to know that someone is lying or has committed a crime despite the absence of evidence, people also attribute a certain amount of knowledge of the law to police.  When a cop says you’re breaking the law, we assume he knows.

What this encounter shows is that they just make it up as they go along.  Sure, they find a dead body with a bullet hole through the forehead and they are likely to be correct in calling it a murder, but that’s the rarity.  The basic encounter between police and the citizenry entails far more mundane situations,  Like this.  Like telling someone they can’t stand on a public sidewalk. No horrendous crime.  No act of violence.  Just people doing stuff that cops think, for whatever reason, they shouldn’t do.

Lawyers and judges recreate these scenarios in legal terms, parsing them to an extreme degree to ascertain whether the actions were lawful.  Of course, the police have some huge loopholes to use to their advantage, ranging from disorderly conduct to interference with governmental administration to failure to obey a lawful order.  Ironically, these are laws used to punish people not for the underlying “crime”, the purported wrong that police make up to get people to do as they are told, but for the disobedience of the citizen.   The crime is not obeying the cop, even if the cop is pulling his justification for his command out of thin air.

Courts may offer the consolation that we have the right to be left alone, but that right apparently ends upon a police officer’s decision to not leave us alone.  Don’t try to reconcile the concept.  It only exists on paper, and has no bearing on the real world. 

In this instance, it struck some government security guards as wrong that two guys with cameras were trying to enter the Metrorail.  Why it was wrong was beyond their pay grade, but they knew that the details were irrelevant.  They had the power and they knew that it wasn’t the sort of thing they should allow.  They don’t need to explain themselves or justify their conduct to two camera guys.  They have the power, if not the understanding.  The rest of it is left to lawyers and judges to sort out.

Nothing has changed the legal landscape more than the advent of pervasive citizen videography.  Where before it was a pissing match between the decorated veteran police officer and the lowlife, self-serving criminal, it’s now available for your viewing pleasure in amazing technicolor.  No matter how tightly a judge shuts her eyes and sings “lalalalalalala”, it’s out there.  The reality of street encounters between law enforcement and citizens can no longer be ignored or denied.  We know, judge, that you’re watching.

So far, the system has yet to acknowledge what has become increasingly apparent to the rest of us.  The sanitized versions of these encounters, where police say nothing pathologically stupid, or overbearing, or offensive, are accepted by courts as if they really happened.  We know it didn’t happen quite that way.  You, judge, know it didn’t happen quite that way.  Yet we address the situation as if it did.

The integrity of the legal system depends on people believing that the police are relatively honest and, to at least a reasonable extent, aren’t just making this stuff up.  The integrity of the legal system is at risk, because they are just making this stuff up.  We all know it.  When are we going to acknowledge it?

14 thoughts on “Just Making It Up As They Go Along

  1. Libertarian Advocate

    “When are we going to acknowledge it?”

    Around about the same time that we ALL acknowledge that it is principally extremist adherents to Islam that pose the greatest threat to our national security, not Libertarians, Veterans and “Tea Baggers” (as loopy “multi-culturalist” FGM apologist Progressives love to call Tea Party adherents). In other words, not anytime soon.

  2. SHG

    Glad to see you’ve managed to focus on something with a direct causal connection to the issue at hand, and not wandered off on some quasi-political pseudo-analogical tangent.

  3. AZW

    My question now is, did they bring the tape to Eric Muntan (Head of Security) for further comment? I would love to hear if Eric Muntan agreed to be interviewed on camera about the incident and whether he defended the actions of the security guards and police.

  4. Rhayader

    One problem is that we’ve given police the means with which to “make it up as they go along.” There are so many laws that the average person is likely braking the law in one way or another at any given time. Meaning an officer can affect a stop, search, and interrogation at any time without any cause, and then retroactively apply some form of criminal code to justify the initial interaction.

  5. Kit Smith

    Does this really surprise anyone who pays attention to these things? There’s a reason lawyers have to go to school in a multi-year program while police officers have a multi-week program. A short, generic course on what constitutes “breaking the law” will never sufficiently prepare an officer to enforce the books upon books of statutes that are constantly changing. How much training should officers have to deal with this?

  6. Rhayader

    Good point; police officers receive only slightly more training in the rule of law than that found in your typical high school civics class. Of course, I’m not even sure that the real problem occurs when a police officer is unfamiliar with a given point of law. The problem occurs when that misconception is hidden from view, or bolstered and defended by a self-interested institution.

    It’s the cover-up, rather than the initial mistake, that is morally reprehensible. Mistakes are inevitable, which is exactly why transparency and accountability are critically important.

  7. Franklin

    Nope. Uniformed thugs are a much greater threat than “extremist adherents to Islam”. Not even close. In fact, there are several classes of government employees that pose a greater threat than “extremist adherents to Islam”.

  8. Dave W.

    “When are we going to acknowledge it?”

    Hopefully when Mr. Miller gets past summary judgment on a claim for the tort of false arrest. Not section 1983. Simple, civil, oldfashioned commonlaw false arrest.

    That is the tort that occurred here.

    I don’t know whether police officers (much less private security guards) have qualified immunity to simple, plain old tort liability (as contrasted with Constitutional violations), but if they do, they most certainly should not.

  9. TGGP

    Robert Ellickson writes about how infrequently the de jure law is known by people supposed to be obeying & enforcing it in “Order Without Law”.

  10. Dave W.

    Question:

    In one of the videos, the policeman says that he can confiscate the camera (without a warrant) if video of putative trespassing is taken by the camera. The cameraman (Carlos Miller?) counterargues that a subpoena/warrant would be needed.

    In the totality of the circs here, who do you think was correct?

  11. SHG

    My take is that cop is more right, on that particular statement, than Carlos.  If the cop was to arrest Carlos, the camera would be evidence and he would be entitled to seize it.  The problem is that the arrest would be unlawful, rendering the seizure unlawful.  But Carlos’ use of the word subpoena is mistaken in this context.  He may have meant a search warrant instead.

    Bottom line remains that no crime was being committed, despite the cops’ facile belief that whatever seemed “wrong” to them became a crime, and hence no lawful seizure could be made.  Unlawful seizures, of course, happen all the time.

  12. Dave W.

    I had a slightly different take. My understanding was that the journalism student was going to trespass, Carlos Miller was going to video the trespass, but not trespass himself, and that under those circumstances, the policeman believed he could do a warrantless seizure of Carlos’ camera.

    If this was the policeman’s understanding, would he have still been correct about the warrantless cam seizure?

  13. Darren

    Franklin,
    You’ve nailed it. The threat is from our own govt not some bunch of boneheads on the other side of the world.

  14. N. Joseph Potts

    Actually, after the uniformed thugs, the greatest threat to the security of those of us who presume to go about in public (forget “national,” whatever that is) is people whose homes, friends, neighbors, and community have been bombed, napalmed, and machine-gunned by invaders from the other side of the planet (America). They may or may not be Muslims, and if extremist now, they may not have been extremist before they were invaded.

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