Obama Administration supports journalist who was arrested after recording cops

Government brief argues arrest violated Maryland man's constitutional rights.

by Timothy B. Lee

The Obama Administration has filed a brief in support of a Maryland photojournalist who says he was arrested and beaten after he took photographs of the police arresting two other men. The brief by the Justice Department argues that the US Constitution protects the right to photograph the actions of police officers in public places and prohibits police officers from arresting journalists for exercising those rights.

The lawsuit arose from a June 2011 altercation in which photojournalist Mannie Garcia witnessed Montgomery County police arresting "two young Hispanic men" in the Maryland suburbs of Washington, DC. Concerned that the police were using "excessive force," Garcia says he pulled out his camera and began photographing the scene from a distance of about 30 feet.

Garcia says that when Officer Christopher Malouf approached him, Garcia identified himself as a member of the press held up his hands to show he was only holding a camera. But Malouf "placed Mr. Garcia in a choke hold and dragged him across the street to his police cruiser," where he "subjected him to verbal and physical abuse." According to Garcia's complaint, Malouf "forcibly dragged Mr. Garcia across the street, throwing him to the ground along the way, inflicting significant injuries." Garcia says Malouf "kicked his right foot out from under him, causing Mr. Garcia to hit his head on the police cruiser while falling to the ground."

Garcia claims that Malouf took the video card from Garcia's camera and put it in his pocket. The card was never returned. Garcia was charged with disorderly conduct. In December 2011, a judge found Garcia not guilty. After the Montgomery County Police Department failed to discipline the officers, Garcia filed a civil rights lawsuit against Montgomery County and the police officers involved in his arrest

The feds weigh in

On Monday, the Obama administration filed a brief arguing that the conduct described by Garcia violates his rights under the First, Fourth, and Fourteenth Amendments. "It is now settled law that the First Amendment protects individuals who photograph or otherwise record officers engaging in police activity in a public place," the federal government argued, citing a 2011 precedent that arose from a similar incident in Boston.

The federal government also suggested that taking Garcia's video card was a violation of the Constitution. "The reach of the First Amendment’s protection extends beyond the right to gather information critical of public officials," the Justice Department wrote. "It also prohibits government officials from punishing the dissemination of information relating to alleged governmental misconduct."

The Obama administration urged the courts to use "considerable skepticism" when police officers use vague charges like disorderly conduct, loitering, or resisting arrest to retaliate against those who record their public activities. "Courts have routinely rejected officers’ attempts to criminalize protected speech through the use of charges that rely heavily on the discretion of the arresting officer on both First and Fourth Amendment grounds," the Justice Department argued.

Finally, the government emphasized that ordinary citizens have as much right to record the actions of the police as professional journalists. While Garcia is a professional photojournalist, the Obama Administration believes that an ordinary citizen would have enjoyed exactly the same Constitutional right to record the actions of police officers in public.

This week's brief echoes arguments the Obama administration made early last year in another Maryland case. In that case, a private citizen used his cell phone to record the conduct of Baltimore police officers who he alleges used excessive force while arresting his friend. The officers allegedly took the man's phone and deleted the video he had taken. That man, like Garcia, responded by filing a civil rights lawsuit.