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Federal Parking Garage III by Kelly Hoffart
On Tuesday evening I was taking pictures in a parking garage that belongs to the federal government. This is one of the shots I took. A security guard approached me and asked if I had permission to photograph there. I told him I didn't. He wanted to know why I was photographing. I told him it's a hobby, and I offered him my card to back up my claim, but he didn't take it. He tried to tell me I couldn't do it, but he was wise enough not to try to stop me.

This has become a huge problem since 9/11. Security guards, police, and federal agents get leery about photography. According to this page,
The right to take photographs is under assault now more than ever. People are being stopped, harassed, and even intimidated into handing over their personal property simply because they were taking photographs of subjects that made other people uncomfortable. Recent examples have included photographing industrial plants, bridges, and bus stations. For the most part, attempts to restrict photography are based on misguided fears about the supposed dangers that unrestricted photography presents to society.
Let's add parking garages to the list. And they note that the fears of these people are unfounded:
Photography has not contributed to a decline in public safety or economic vitality in the United States. When people think back on the acts of terrorism that have occurred over the last forty years, none have depended on or even involved photography.
I told the guard that I'm also a law student, and he still tried to argue with me. He didn't try to stop me, either because he knew he had no right to stop me or because he wasn't sure. I want to get the word out there that photography isn't going to assist a terrorist attack. I want to help make it known that photography is a constitutional right. Denying me the use of my camera is the same as denying a newspaper the right to use word processor programs. If I can't take a picture of a building, then you might as well not be able to write anything about the building. I wish I had told the guard that I had a copy of the United States Constitution in my car and that I was willing to go get it for him, even let him have my copy, but I didn't think about it at the time. I just walked to an area where he couldn't see me and continued to shoot, although he did walk around the garage and met me when I left. I told him to have a nice day. He returned the kindness. I assume he may have called to a supervisor or something and found out he was wrong.

When I first read this article in Popular Photography Magazine, I didn't think it would happen to me. But of course, I was lucky. Here are some excerpts from their story:
• 4:25 a.m. McKinniss, a 60-year-old retired software designer on assignment for a photography class, arrives and sets up his Canon EOS Elan with 100mm lens on a tripod on the public sidewalk, facing an ExxonMobil oil refinery.
• 4:40 a.m. A security car pulls up and parks behind him.
• 4:46 a.m. A Torrance prowl car zooms up the street.
• 4:47 a.m. The car returns, lights flashing, and parks behind the photographer. Another squad car jerks to a stop beside it. “Four cops walk up in a SWAT-type formation,” McKinniss later recalls. “They weren't casual about it. Talk about intimidation!”
• 4:49 a.m. He is ordered to clasp his hands, thumbs down, behind his back. A cop grabs his thumbs with one hand and searches him with the other . . .
“One of the officers asked if [I] had heard about September 11 and asserted that, since the terrorist attacks…it was illegal to photograph bridges, airports, and refineries." . . .
“These laws just don't exist,” explains McKinniss's attorney, Robert Myers, who took his case pro bono. “A law that attempts to prohibit photography from places open to the general public would be unconstitutional.”
So, if you're a photographer and you want to know your rights, this PDF file may help you. An excerpt:
Despite misconceptions to the contrary, the following subjects can almost always be photographed lawfully from public places:
accident and fire scenes
children
celebrities
bridges and other infrastructure
residential and commercial buildings
industrial facilities and public utilities
transportation facilities (e.g., airports)
Superfund sites
criminal activities
law enforcement officers
My own notes from Constitutional Law II convince me that I was in my right. Yes, government may have the right to restrict you under some circumstances on their property, but I doubt they can do it without a policy in place that is objectively reasonable. The guard in question alluded to no such policy.

I am NOT encouraging you to press your luck. Don't go to these kinds of locations just to get in somebody's face. That's abusing your rights. But if you do get into these kinds of situations, think about it, and remember that you have rights. Don't get belligerent, though. It never hurts to ask permission beforehand, and if denied, ask why. I didn't ask because I never planned on going there.

Just to cover my butt here, I'm going to quote the PDF file again to tell you that this is not legal advice:
This . . . is not intended to be legal advice nor does it create an attorney client relationship. Readers should seek the advice of a competent attorney when they need legal advice regarding a specific situation.

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Federal Parking Garage III

9 Comments:

Blogger Language Guy said...

You are wrong about photographs of garages, at least if they are under buildings (as in the first attack on the WTC), would not be helpful. Ditto photographs of refineries or bridges, etc. Photographs could be used to instruct terrorists where and how to place bombs in such structures to cause maximum damage. If a demolition company wants to bring a bulding down they put charges at key points. So could a terrorist.

You are surely right about the rights of photographers, but the fact is that I would want questions asked of anyone photographing any senstive building (e.g., nuclear power plant) or strucuture (bridge). We have seen in the news of an apparent plot to bring down 10 or so planes with liquid expolosives mixed on a plane. This, plus the 9/11 attacks, the case of the "shoe bomber" and others show the resourcefulness of terrorists. In your case of the guy photographing, it is clear that the person questioning you must have decided you were harmless. The case described in the PP magazine has cops going too far.

We either will or will not investigate suspicious activity and photographing things falls in that realm of what is being photographed is on some list of possible terrorist targets. A parking garage is one such thing. As you say, your rights were not violated and you got your photograph. So, what exactly is your complaint? Do you not want guards and cops to check out people taking photographs at all?

7:55 AM, August 11, 2006  
Blogger Kelly said...

There are some situations where they should, and some that they shouldn't. In this case, the garage I was in was very simply designed. If someone wanted to place a bomb in there, they could just as easily walk in and eyeball it as try to glean anything from a photograph. Indeed, a photograph will very rarely give you the kind of real engineering information you would need to make such a plan. You'd be much better off trying to find the blueprints.

As my sources note, photography has never played a role (of which we are aware) in facilitating a terrorist attack. This is not to say that it could conceivably help. But there is a big difference between tourist or fine art photography and surveillance photography. This difference should be readily apparent from the way that a picture is--or more properly a long series of pictures are--being taken. In my case, he approached me when I had my camera pointed straight down at a piece of flat concrete to capture texture and the number "37". I had not taken any other pictures up to that point in time. Anyone with an IQ above mental retardation levels would know that such a photograph would be completely useless to terrorists. And if someone was planning to do something to the #37 parking spot, they could much more easily tell their co-conspirators the number than take a picture of it. "This is what the number 37 looks like."

My case could easily have gone the same road as the one in PopPhoto had the guard been less intelligent, more zealous, or more nervous. In the case described in PopPhoto, he was taking pictures in low light. Why would you take surveillance photos in low light?

My problem with it, LG, is that I had a right to be in that location. Any time you have a right to be there, you have a right to look at anything in plain view and, by implication, to photograph it (absent copyright or trademark concerns). It would be different if it was a place where they had the right to exclude people or to stop someone from taking a camera in the door in the first place. Any private property owner can do this, and so they can prohibit photography. Likewise, government can do this in certain, carefully proscribed circumstances (e.g. when there is a safety concern). Like the magazine article notes, you also can't stop on a busy bridge and take a photograph because it creates a traffic flow and safety issue. But photography, by itself, is a First Amendment issue. You can prevent people from stopping on the bridge, but you can't prevent them from photographing from the window of a moving car. The issue is that it must be a restriction that is neutral towards speech, unless there's a damn good reason for singling out speech (this is not the legal terminology).

When the First Amendment is involved, prior restraints are subject to heightened scrutiny. Even if you were to walk up to that garage, tell the security guards that you are taking surveillance photos ,and that you are planning to post them on a terrorist discussion board on the Internet, they would still have a very hard time trying to legally prevent you from doing that. In our system, when the First Amendment is concerned, we have a marked preference for punishment or suit after the fact except in very limited circumstances. (The one I describe here might rise to that level.)

I don't assert that my rights were actually violated. But it could easily have escalated to such a situation. Or, had I not recently read this article, I may have been intimidated into giving up my rights voluntarily.

In short, my goal here is to let people know that they have rights and to help them become aware that such an encroachment is not only possible, but it happens to real people that they can communicate with online. I want people to refuse to be intimidated into giving up their rights.

The security guard I talked to was probably just a little nervous and a lot bored. Other guards and officers may not be.

4:08 PM, August 11, 2006  
Blogger Kelly said...

I forgot to mention the shortest form of the counter-argument to what you said: you can look at it, so why can't you photograph it? Aren't you allowed to remember what you looked at? If it's sensitive, it should be hidden from view.

4:09 PM, August 11, 2006  
Blogger Feroz said...

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12:53 PM, August 13, 2006  
Blogger Kelly said...

Sorry, Feroz, I usually only link to photoblogs.

8:42 AM, August 14, 2006  
Blogger trusty getto said...

"We either will or will not investigate suspicious activity . . . "

I'm kind of missing the basis for the argument that exercising one's first amendment rights constitutes suspicious activity. Anyone can find suspicion in just about anything, if they look hard enough. When people in uniforms make their own subjective decisions that you are suspicious, and then approach you, they are definitely challenging your right right to be there doing what you are doing. It has a chilling effect -- it's ridiculous to presume it doesn't. I don't believe we should ever condone this type of law enforcement activity under the auspices of "investigating suspicious activity."

2:54 PM, August 19, 2006  
Blogger BegsToDiffer said...

So kelly, why not ask permission? surely that isn't such a big deal now is it? and once youv'd done this then they really wouldn't have a leg to stand on.

Your comment about looking v photographing is utterly laughable, ever heard of sattelite photographs?

Incidentally, I may take a ton of pictures of your house/apartment/yard next time I'm in your area, a few close up shots too would be nice, perhaps the contents of the trash can etc; I assume you won't be objecting?

My father in-law is a recently retired Judge, he told me that it would not be illegal to look through binoculars from my deck across street into window that has no drapes etc, kind of interesting I thought.

Hugh

7:18 AM, August 30, 2006  
Blogger Kelly said...

I didn't ask for permission because I didn't plan on going there beforehand, and it was after 5:00 so most of the offices were closed.

There is no distinction between looking and photographing, for security purposes (although not for copyright purposes) and I'm not sure why it's laughable. I also don't see the relevance of satellite photography to this.

I will not be objecting to that. Just don't step on my leasehold property in the process (so you may have trouble getting closeups or shooting my trash), or you'll be trespassing. We have curtains.

10:59 AM, August 30, 2006  
Anonymous Anonymous said...

"Begs to differ" and 'Language Guy," you are the sort of people who make America a worse paranoid place where basic civil liberties are abrogated in the name of security. The "terrorists" don't terrify me at all considering that my chance of dying from a terrorist incident is less than 1/1000th of dying from an auto accident if you aggregate the data over ten years. What part of free speech right "shall not be abridged" in the first amendment do you people fail to understand? People like you who want to throw all sorts of roadblocks in the way of artists terrify me. As far as I'm concerned you and the neo-con fear mongers are the true terrorists with your un-American dismantling of our basic civil liberties.

Finally I will leave you with a quote from Benjamin Franklin:

"Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety."

10:38 PM, September 30, 2006  

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