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Photography Incidents- Managing Encounters by J Greenstein

Photography Incidents- Managing Encounters by J Greenstein

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Published by IAHN Negotiator
Photography Incidents – Managing Encounters
By: Jonathan D. Greenstein
February 23, 2011
Photography Incidents – Managing Encounters
By: Jonathan D. Greenstein
February 23, 2011

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Published by: IAHN Negotiator on Jul 19, 2011
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Photography Incidents
Managing Encounters
By: Jonathan D. Greenstein
February 23, 2011
The following monograph
is a complication of lessons learned, best practices and the author’s personal experiences: It does not reflect any official 
agency 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 throughvarious law enforcement information sharing systems. While most of these incidents resolve to benothing more than innocent cases of people who are simply documenting their travels, prominentbuildings or in some cases semi-professional photographers seeking to expand their portfolio, there isthe 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 resoundingquestion: can they do that?In addressing the terrorism nexus, it is well established that as part of the attack cycle there will beinitial/low level surveillance of potential targets followed by intense/high-level surveillance. What isimportant to understand is that while there is no template that terrorist operators follow, most are atthe 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 andmay avoid them. This is not to say that during the surveillance stage a potential terrorist will not engagein 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 neverknow.For non-terrorists, the personal motivation to take photos of a facility is as endless as the facilities beingphotographed. As previously noted, some incidents are tourists and others are creating a portfolio. Fortourists there may be complications due to language barriers, foreign documents and an aversion to lawenforcement; as with any other contact, diplomacy, tact and patience are critical. When dealing withprofessionals or budding documentarians, they tend to know or believe they know their various rightsand may vigorously assert them; as with the earlier noted population: diplomacy, tact and patience isthe order of business.
Another population of photographers that may be encountered is what I have begun to call policeconduct litigants. They are not new. For many years there have been folks who purposely engage withlaw enforcement for the sole purpose of eliciting potentially questionable conduct that they can laterexploit, be it for socio-political motivations or in pursuit of a lawsuit. As demonstrated by recentsettlements, there is a financial consequence if an officer steps over the line when mitigating potentialconcerns 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 respondingpersonnel. 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 couldvery well end up on YouTube.Lastly, there are the conspiracy theorists. The motivation for photographers in this category rests intheir strong belief about a particular subject. I included them in the same section as potential litigantsbecause they share some of the same traits. They strongly assert their rights to take photos, demandcitations of laws that justify the contact, may ramble on about this theory or that conspiracy. They mayalso 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 simpleand direct. Towards the close of this article I have included some possible steps to follow whencontacting 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 inpublic places. Absent any major shift in laws, rules or regulations, the legality of standing in a publicplace and taking photos of any subject; be it a person, place or thing will remain. While such conductmay cause concern, it is generally legal. These recent cases generally showed that officers were eithermisinformed about the legality to take photos in public places or were goaded into stepping over theline. 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 handledprofessionally, such contacts reinforce law enforcements commitment to public safety and ourawareness of potential threats. Not to script the language that should be used during an encounter, butto 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 agovernment building/potential target of criminals. I was curious as to if your are visiting our city or are a professional photographer 
This establishes who you are, who your work for, the purpose of the contact and serves to elicit aresponse from the person contacted. It is not an interrogation, it is a professional encounter. It does notneed 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 asensitive facility, we must understand that their conduct is usually protected and our conduct must beabove reproach. Due to the varying legal framework that
prohibit photography of certain facilities, Ileave it to the reader to ensure they are appropriately versed on what course of action they
General Response
The following should serve as a guideline for establishing policies and procedures whenresponding to incidents. Be aware that different jurisdictions may apply differing standards and criteriato 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 awarethat individuals may record the contact. (In most cases, there is no or limited legal basis to prevent themfrom recording you in public)
Attempt to identify the person(s), any affiliations and the purpose of their activity. Remembering thatsuch encounters are voluntary and absent any local law requiring identification, they are free toterminate 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 ordivulge 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 foras 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 theircooperation and allowed to leave.
Final Thoughts
Remain alert for pre-operational planning; this includes suspicious photography of potentialtargets. Know the law and what is allowed on the part of both the police and public. Document allencounters and ensure suspicious incidents are validated and entered into the appropriate reportingsystem. Be Safe!

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