By Donald R. Winslow
© 2012 News Photographer magazine
WASHINGTON, DC – As 2011 drew to a close there were stories from all over the United States about police detaining and arresting photographers who were doing nothing illegal, who were taking pictures of public activities in public places, many of them trying in one way or another to cover the various "Occupy" events in American cities and also the day-to-day activities of their local police. But since photography is not illegal, and since it's still a First Amendment protected form of expression, these photographers had to be charged with other crimes – trespassing, or resisting arrest, or disorderly conduct.
Police who practice this "catch and release" method of getting photographers out of their hair know, for the most part, that the journalists will likely never actually face a day in court or be convicted, because prosecutors or higher ranking police usually dismiss the charges and offer up some lame public apology, saying it won't happen again. That it was all a misunderstanding.
And despite it being an unlawful arrest, almost never are there any serious consequences for the misconduct of the police. In the aftermath the photographer walks away with no arrest record, usually without running up huge legal fees. And the police have what they wanted: they stopped a journalist from taking pictures of them doing whatever it was they didn't want the public to see.
The problem with it – aside from having a long-term chilling effect on journalists' First Amendment rights – is that sometimes a photojournalist gets hurt. Not just physically hurt, but there's a dent in the wallet, in his or her ability to earn a living. Like photojournalist Mannie Garcia, who was the victim of an unlawful arrest at the hands of overzealous Montgomery County (MD) police who apparently didn't like the fact that Garcia was photographing them while they were responding to a call of an incident involving two Hispanic male suspects.
Since Garcia couldn't be arrested for the "crime" of taking pictures, a police officer physically injured Garcia and then arrested him on a trumped up charge of Disorderly Conduct, the photographer and his lawyer say.
And while Garcia waited for his day in court, his White House press credential expired. Normally renewed as a mere formality, this time around Garcia's credential was denied.
Why? Because despite the legal doctrine establishing the presumption of innocence, despite the absence of any prior arrest or conviction on Garcia's record, when it came time for Garcia's credential to be renewed back in October there was a pending criminal charge on the docket thanks to the Montgomery County Police. And the White House doesn't issue a gate pass into the Oval Office under those circumstances.
Which left Garcia in limbo. Not convicted, merely accused. Presumed innocent, but awaiting trial. Unable to do his job and unable to earn a living because in Washington, you just don't get past the door to stand behind the velvet ropes without a necklace full of credentials. Credentials that are not issued without the strictest of scrutiny. As it should be.
Ironic, in this instance, the notion of his presumed innocence – and not really a question of law so much as a conflict with White House policy and Secret Service practice.
A bit of history: ever since the sixth century and Roman law the concept of being innocent until proven guilty has placed the burden of proof upon the accuser. It's a concept found in both Common and Civil law. It's a notion so fundamental that today most people assume that it's an American citizen's right. While the Constitution does not explicitly spell out that right, many legal scholars believe the presumption of innocence also can be found within the 5th, 6th, and 14th amendments of the Constitution.
As for the actual law, the accused's presumption of innocence was cemented in 1895 when the U.S. Supreme Court decided in Coffin v. United States that two men accused of aiding and abetting a former bank president of fraud were, in fact, completely innocent until proven guilty.
Which is all nice and tidy ... unless you're a photojournalist who's trying to get his White House press credentials renewed so that he can stand within 10 feet of President Barack Obama, a lawyer who earlier in his career was a community activist who taught law at the University of Chicago and who – no doubt – is well versed in the notion of presumed innocence. Garcia and Obama also have a bit of history together: readers might remember Garcia's name from thecopyright casethat revolved around one of his photographs when the artist Shepard Fairey used Garcia's Associated Press photograph of Obama in his 2008 "Hope" poster.
But the presumption of innocence isn't binding on the White House press office, or on their power to grant – or withhold – access.
A Midsummer Night's Nightmare
The start of this Kafkaesque drama began for Garcia last summer on June 16 along Hickerson Drive in Wheaton, MD, a suburban Montgomery County neighborhood northwest of Washington, DC, not far from where he lives. Coming out of a restaurant around 9 p.m. with his wife, Vicki Allen, and a family friend, the photojournalist saw a Montgomery County Police cruiser facing him. There was another MCP car facing it, parked grill to grill. The police cars did not have their flashing lights turned on, but between the fronts of the two cruisers were two men – one seated, one standing – and they were both handcuffed.
"It caught my attention because they were on the dark side of the building," Garcia told News Photographer magazine today. "It looked odd. These two men were being arrested, but there were no flashing lights and it just caught my attention." Garcia had a camera with him, so he started shooting video and stills. "But primarily video," he said.
Garcia, 58, wasn't physically close to the police, the suspects, or the cars. "I was across the street and about half a block up the street, toward the street light," he says. "When an officer came up to me, I let the camera go, I opened up my hands, and I said, 'I'm Mannie Garcia, and I'm with the press.' Then two things happened at about the same time: he grabbed me by the neck and says, 'That's it, you're under arrest'; and he pulled my arm behind me, put me in a choke hold, and started dragging me across the street. That's about the time I hollered out, 'Vicki!'"
The MCP officer accosting Garcia was C. P. Malouf. "He had me by the neck and he overwhelmed me," Garcia said. The photographer says he offered no resistance. "The camera was around my neck, he could see there's nothing in my hands, but he went for my neck, and by the neck he dragged me across the street. He assaulted me. He hit me, grabbed me, and while he did it he kept moving across the street. When I got to the police cruiser, I was shoved up against the cruiser a couple of times. I was handcuffed, and he kicked my right foot out from under me."
Garcia says when the police picked him up off the ground, "they were laughing and he [Malouf] said, 'Will you quit trying to hurt yourself?'"
The photojournalist says that his wife was approaching closer at that time, and one of the other officers yelled, "If that fucking bitch takes one more step I'm going to arrest her ass." Garcia remembers that he shouted to his wife to step back. "And that's when I got my head slammed into the car."
When the police cruiser with Garcia got to the 4th District Station, he saw Malouf fiddle with the camera and then while they were parked in the station's parking lot saw the officer figure out how to open it at the bottom.
"I saw him take the chip out," Garcia said. Although he would eventually get his camera back, the memory chip was never accounted for.
Eventually that night Garcia was charged with Disorderly Conduct, and around 2 a.m. he was released on his own recognizance. He later discovered that the two men he tried to photograph as they were being arrested were being held for alcohol-related offenses: one of the subjects was underage, and the other had been purchasing alcohol for the younger one.
What The Police Claimed
Garcia's account of the incident is different than what MCP officer Malouf wrote in his official, sworn report. Malouf reported that when he arrived on the scene, one of the officers already there told him that Garcia was across the street "filming them." Malouf wrote that MCP officer Baxter told him that he couldn't tell "what else" Garcia might be doing because the photographer "was hiding in the shadows."
Malouf claimed that when he approached Garcia the photographer "immediately became disorderly, demanding that he had a right to be there, and was not cooperating with simple questions," he wrote in his account. "Garcia began yelling, and shouted 'Fuck.' When he did this, several patrons of Jose's Grill and others in the surrounding parking lot all turned toward the disturbance. Garcia was placed under arrest."
Malouf also wrote that Garcia "threw himself to the ground, attempting to injure himself." The cop also wrote that when he and officer Baxter picked Garcia up, he "threw himself against the cruiser, again trying to injure himself." Malouf said that Garcia began "screaming, cursing, and thrashing his body around," in response to which the police "had to use force in order to keep Garcia under control."
Before Garcia's case could actually come to trial in December, there were three requests for continuances by the state. In the meantime, in October his White House pass came up for renewal.
"The renewal is done in your birthday month, every two years," Garcia explained. "So the White House sent me a letter during the first week of October saying that my hard pass was up for renewal and that I needed to get my letters sent in." Freelance photojournalists are required to have at least two sponsors in order to be issued a permanent hard pass. For Garcia, Getty Images and United Press International are his credential sponsors.
"So they [Getty and UPI] wrote my letters and sent them to the White House. As the month progressed, I wasn't hearing anything. So I would call the badge office and ask what was going on with my pass, and no one would answer my questions. They kept referring me to the Secret Service."
For White House permanent press passes the Secret Service is charged with doing the official background and security check. While the White House upper press office actually issues the pass, the Secret Service conducts an investigation and then they either recommend approving or denying a pass. Traditionally, the White House press office adheres the Secret Service's recommendation.
"It was almost the end of October when I learned from a source that they were not going to re-issue my pass because the background check had discovered that there was 'pending legal action' against me," Garcia said.
So after October 31, 2011, he was not allowed to enter the White House and Garcia found himself losing "a sizable portion" of his income, a day rate for the wire services or newspapers, and a larger daily fee if he shoots video. After 19 years of covering the Oval Office, the photojournalist found himself standing outside on Pennsylvania Ave., unable to earn his living because he'd been unlawfully arrested, charged with the lowest class of misdemeanor on the books in Montgomery County.
Garcia says that the White House made it clear that his pass would not be reissued until the legal matter was cleared up. While he waited through November and early December to come to court, Garcia was forced to turn away many clients who called requesting White House coverage. In addition to costing him money, Garcia said, "It was embarrassing."
When the trial finally began on December 16, it was Malouf's police report – along with some shaky testimony from the other officers – that contributed to District 6 Montgomery County Associate Judge William Graves Simmons’ finding that the police complaint was not credible. He issued an acquittal – the photojournalist was not guilty.
"Probably the only truthful statement in that police report was that Garcia was filming," NPPA general counsel Mickey H. Osterreicher said today.
"When the officers testified to that report, the judge found their testimony to be not credible and dismissed," Osterreicher said. "Here's Garcia, a person who has never been in trouble of any kind with the law before, and then there's this police claim. Have you ever heard of someone repeatedly throwing himself to the ground to injure himself like that? He'd have to be insane. And clearly he's not."
At the trial Garcia took the witness stand on his own behalf. "The state had six witnesses," he said. "Three MCP cops and some Maryland alcohol police. At times their testimony didn't match." One officer testified that he didn't see or hear anything, Garcia said, while another testified that Garcia had been screaming at the top of his lungs. In addition, one of the Montgomery County Alcohol/Tobacco Enforcement specialists said he had heard Garcia clearly identify himself by name and say that he was with the press.
"The police, in their testimony, they tripped all over each other in court," Garcia said. "In the end, the judge went on and on ... and it turns out he was chastising the prosecutor."
"Mannie’s would be just one of a number of federal civil rights suits by photographers against police agencies and municipalities around the country that NPPA is involved with," Osterreicher said.
"In almost every letter I write to police, I offer NPPA’s expert advice to help departments develop appropriate guidelines and implement proper training in order to avoid these situations. Some of the more progressive departments listen, some don’t. As police often say, 'We can do this the easy way, or the hard way.' When it comes to dealing with photographers it would be better if they took their own advice rather than cost the taxpayers money. Municipalities can ill afford defending indefensible police abuse of power under the color of law."
Osterreicher observed, "Cases like these have a chilling effect on press coverage. I commend Mannie for standing up for his rights. Often it's not an easy decision – especially in situations where it is your word against the testimony of a number of officers."
Garcia's Civil Rights Trampled
Montgomery County Police officials have failed to respond to Garcia and his lawyer, David C. Merkin, regarding an internal affairs investigation they requested, and the MCP chief also hasn't responded to a complaint letter from Garcia.
Which leaves the photographer and his lawyer at the next step: a possible federal and state civil rights suit.
"I certainly feel that Mannie's civil rights were violated," Merkin told News Photographer magazine today.
"Here's a photojournalist who presented an officer with his press pass, and the officer simply lost control. He used force on him, arrested him, subjected him to humiliation, and had his White House press pass – which is Mannie's career – taken from him. Both his state and federal civil rights have been violated."
In late November, following the Maryland rules of civil law which specify a time period within which one has to inform officials of possible action, a letter from Garcia's lawyer notified Montgomery County officials of the photojournalist's intent to make a claim for civil rights damages. In his notice to Montgomery County Executive Isiah Leggett, Merkin detailed how the incident left Garcia with face, knee, shoulder, and rib injuries that required medical treatment; how the assault left the photographer in physical pain; and how the incident left Garcia suffering from mental anguish, embarrassment, and humiliation along with the loss of potential earnings.
In addition, there are also issues of false arrest, malicious prosecution, the illegal seizure by police of Garcia's camera, and the “disappearance” of the recording chip, Merkin wrote. "The police officer's actions were at all times unreasonable, unlawful, and malicious,” Merkin told Leggett.
As for the missing memory chip that's never been returned, Merkin pointed out to Montgomery County officials that the camera, along with the chip, could have been used as evidence in support of Garcia's version of the "innocent initial encounter, and his innocent behavior throughout."
Seth Zucker, the Communications Director for the Montgomery County State's Attorney's Office, today gave a limited answer to some of the questions addressed to Garcia's prosecutors by News Photographer magazine. When asked why prosecutors moved forward to trial after conducting their own investigation of the arrest, Zucker said, "The state's theory for moving forward with prosecution was not based on videotaping in public. It was relative to yelling and cursing in public. And the court issued a verdict on that, and we respect the verdict of the court. If you pull the transcript of the court case, which is publicly available, what the prosecution argued in court was a charge of Disorderly Conduct. The defense contested that, and the court reached a verdict."
The policy of the office, Zucker added, is to not comment on closed cases other than to point out what is on the record as having been said in court.
Meanwhile, the New Year dawned with Garcia once again able to work at the White House after his press credential was approved on December 29, 2011 although he continues to recover from his physical injuries.
"Ron Sachs [White House News Photographers Association president] and Doug Mills [White House Correspondents' Association board member] were instrumental in getting it back," Garcia told News Photographer today.
"They walked it through with the White House upper press office and press assistant Antoinette Rangle, the 'gatekeeper' of the passes. They were able to explain to her, in person, what happened to me, and to get the paperwork through the Secret Service. Only with that prompting, along with the not guilty verdict, was the White House able to grant the pass right away."
What happens next? Merkin's letter to Montgomery County officials certainly foreshadows the possibility of a civil rights claim, a distinct possibility that Garcia and his legal team are currently contemplating.
"Should a civil rights action move forward as a result of this, it will be interesting to see what these officers have to say when they are questioned a second time, under oath," Osterreicher said today. "Also, to see what – if anything – their Internal Affairs have done to investigate Mannie's complaint, and what Montgomery County has to say to justify how they moved forward with Mannie's prosecution rather than dismissing the charges immediately after the arrest."
NPPA general counsel Mickey H. Osterreicher is part of Mannie Garcia's legal team
Correction: On January 11, 2011, this article was corrected to accurately reflect the name of the Montgomery County Alcohol/Tobacco Enforcement specialists.