LA County Sheriffs Hassle Photographer, Trample Constitution, Get Lauded by Bosses

In October 2009, Shawn Nee, an award-winning documentary
filmmaker and photographer in Hollywood, California, was stopped by
members of the Los Angeles Sheriff’s Department (LASD) while taking
pictures at a stop on the L.A. subway system.

Disturbing information about the police stop reveals startling
and troubling information about how the Sheriff’s Department
reports on what it considers suspicious terrorist activity. And
what’s happening in L.A. is almost certainly happening everywhere
across the country.

The encounter was recorded on a body camera Nee wore for
protection. A video of the event went viral as viewers
watched Deputy Richard Gylfie ask Nee if he was in
“cahoots with Al Qaeda” to sell his pictures “for a terrorist
purpose.” After detaining Nee with the assistance of his
partner Deputy Roberto Bayes, searching through the contents of
Nee’s pockets, and holding Nee’s hands behind his
back, Gylfie threatened to put him on “the FBI’s hit
list.”

“On one level you’re thinking, is this really happening? And
then on another level you’re thinking, this shouldn’t be
happening,” says Nee of the incident. Nee became a plaintiff
in a lawsuit against the sheriff’s department along with two
other photographers and the National Photographer’s Rights
Organization. Nee is represented by Peter Bibring at the American
Civil Liberties Union of Southern California.

“Photography is not a crime, it’s artistic expression,”
says Bibring. “There is no reason to believe that just [because]
he’s taking photographs he’s engaged in any kind of criminal or
terrorist activity.”

Bibring says that millions of people every day use their
cell phones, point-and-shoot cameras, and even professional-grade
cameras to document their lives and the world around them. “In
public areas, on public streets, no law bars people from taking
photographs,” says Bibring.

Internal Investigation Report: Officer’s
‘Hypersensitive’ Actions ‘Laudable’

After Nee filed a complaint with the department saying that his
First and Fourth Amendment rights had been violated,
the LASD launched an internal affairs investigation. Reason
TV has obtained a copy of the investigation
report’s summary which
doesn’t just defend the officers involved but congratulates them
for their aggressive actions and threats. “The
vigilance shown by Deputy Gylfie in detecting suspicious activity
is laudable and we are encouraging others to be as pro-active,”
reads the report.

The report says Gylfie and Bayes are terrorism liaison officers
and “have been trained in procedures used by terrorists
(including the photographing of targets, security officers, cameras
etc.) and are hypersensitive to indicators such as the behavior and
evasiveness shown by Nee.”

The report goes on to say that the true purpose of Nee’s
photography was never determined, but “it would
seem a possible purpose might be to bait police officers”
and that the “surreptitious” nature
of his video “suggests he is more interested in litigation
and making a name for himself” than following the
rules.

Laurie Levenson, a professor of criminal law at Loyola Law
School and a former federal prosecutor, is especially troubled by
the word hypersensitive in the report.

“One would expect that they would describe the officer as
professional and even sensitive to what’s happening on the street.
But they use the word hypersensitive. Which seems to
suggest that he might see terrorism where others do not. That he’s
over the top in the way that he reacts to what would be conduct on
the street,” says Levenson.

Training Officers to Spot Photographers

Gylfie and Bayes were on patrol for “potential homeland security
activity,” or as it is described in LASD policy, “unusual
or suspicious activity that may have a nexus to
terrorism.” Nevertheless, the sheriff’s department
warns personnel that suspicious activity “may
not have a clear nexus to
terrorism,” and “may
not rise to the level of a crime.”

“There are individuals that are taking photographs and are
filming security sites for ill deeds, for terrorist activities,”
says senior media adviser for the LASD Steve Whitmore. “And so we
are very vigilant about making sure that that is not
happening.”

The training the deputies received may have been similar to an
August
2010 Deviation Assessment
and Response Training (DART) instructor’s guide used by
the department to train officers who patrol the transportation hubs
in Los Angeles. The guide lists a number “surveillance indicators”
officers should be aware of, including:

Picture taking or video recording of or around your post,
especially when coupled with high magnification lenses.
Note-taking at non-tourist locations. Picture taking alone is not a
suspicious activity unless the pictures are of railroad tracks,
emergency exits, access roads, street signs, bus terminals, and
emergency personnel during an emergency or a drill.

The FBI’s “Hit List”

Even though the deputies couldn’t find any reason to arrest
Nee, Gylfie did end up submitting Nee’s name to
the FBI. He submitted it through a suspicious activity report to
the Los Angeles Joint Regional Intelligence Center, a fusion center
that pulls together information from a variety of law-enforcement
and intelligence-gathering entities. Making that sort of report is
in like with department policy.

“That raises concerns that people who are engaged not only in
lawful activity but in constitutionally protected expression are in
this database where they are identified as engaging in activity
that may have a link to terrorism,” says Bibring.

The LASD’s Whitmore stresses that the department believes in
protecting the constitutional rights of photographers but offered
this caveat: “If we have probable cause, we are going to
investigate that to protect the public. And most of the time, I
submit to you: We’re going to be right.”

The ACLU of Northern California recently released
suspicious activity report on Nee, along with over a hundred
reports originating from LASD that have to do with cameras.
Most record innocuous behavior, says Bibring, like taking photos of
a building, a subway, or the skyline of downtown Los Angeles.

“If looking for terrorists is like looking for a needle in a
haystack, we seem to be adding not just more hay to the haystack
but more and more haystacks of information everyday,” says
Bibring.

The United States Senate Committee on Homeland Security and
Governmental Affairs released
a report on fusion centers in late 2012 that supports
Sibring’s characterization. After looking at 13 months of
material, the committee reported:

The Subcommittee investigation found that DHS-assigned detailees
to the fusion centers forwarded “intelligence” of uneven quality –
oftentimes shoddy, rarely timely, sometimes endangering
citizens’ civil liberties and Privacy Act protections,
occasionally taken from already-published public sources, and more
often than not unrelated to terrorism.

Whitmore provided Reason TV with a
draft of a new photography policy. The draft document,
which he says Sheriff Lee Baca supports, champions First Amendment
but is skimpy at best on details about the Fourth Amendment rights
of photographers.

Are Terrorists Everywhere?

“Everybody is weary of [the] ‘where is the terrorism?’
[mentality],” says Levenson. [But] local law enforcement [doesn't]
want to be the one who’s caught missing something.”

The reason local law enforcement are looking for potential
terrorist activity is thanks to the 2001 PATRIOT Act. The act
expanded the powers of federal agencies like the Federal Bureau of
Investigation, Department of Homeland Security and the National
Security Agency to gather intelligence but also increased the
powers of local beat cops to gather intelligence. Local police have
been empowered to become the eyes and ears of the feds via
suspicious activity reporting to fusion centers.

Levenson says that the reaction by local law enforcement agences
has generally gone too far.

“The 9/11 mentality – that there are terrorists everywhere -
could intrude on everyone’s constitutional rights,” she says.
“I don’t think anyone wants to go in that direction and I don’t
even think it’s effective law enforcement. You can end up getting
so much information that most of it is not useful and you’re
missing the needle in the hay stack.”

According to a Government
Accountability Office report from March 2013, as of November
2012, more than 14,200 local law enforcement agencies in 46 states,
plus the District of Columbia and two U.S. territories, had the
ability to share suspicious activity reports with 74 fusion
centers.

About 10 minutes.

Written and produced by Paul Detrick. Camera by Tracy
Oppenheimer, Zach Weissmuller, Alex Manning and Detrick. Graphics
and associate producing by Will Neff.

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