APD Filming Policy Unconstitutional, National Press Photographers Ass’n Says

 

Following the third arrest this year of Peaceful Streets Project founder Antonio Buehler for legally filming police activity Friday, Sept. 21st, the National Press Photographers Association (NPPA) has issued a statement calling the Austin Police Department’s policy on “interference with public duties” unconstitutional. The policy was issued August 28, immediately following Buehler’s second arrest.

On Monday, Sept. 24th, NPPA General Counsel Mickey Osterreicher wrote a letter to Austin Chief of Police Art Acevedo on this matter.

“Aside from being overly broad and vague the APD policy leaves far too much to the discretion of its officers, whereby they can construe almost anything as ‘interference,’” said Osterreicher in the statement. “Under these rules officers are free to create a chilling effect upon far more speech (photography/recording is deemed a form of speech for First Amendment protections) than is necessary to achieve a substantial government interest—that being actual interference with a police officer in the execution of his duties—and would thus be held to be unconstitutional.”

Buehler and Peaceful Streets volunteer Sarah Dickerson were arrested early Friday morning while videotaping a DUI stop in progress on West 6th Street and charged with interference with public duties. They were approximately 30 feet away from the officers and suspect when Officer Patrick Oborski, who arrested Buehler last New Year’s in the controversial incident that spearheaded the Peaceful Streets Project, shined a light in Buehler’s face and yelled at him to back up. Both Buehler and Dickerson moved backwards while Buehler repeatedly asked “how far?” receiving no reply. Sgt. Adam Johnson then illogically ordered them to walk to the rear of the parked police cars, meaning they would have to walk toward Oborski and the suspect rather than away from them. Buehler and Dickerson continued moving backwards while Buehler asked for clarification on where they could stand, until they were approximately 90 feet away from the suspect. Johnson told them to join the Peaceful Streets volunteers standing on the other side of Oborski and the suspect or leave, to which Buehler replied they were leaving when Johnson arrested both Buehler and Dickerson.

“We need to ask ourselves if there is a better way to form our communities, to love our neighbors, and to care for the most vulnerable and suffering among us. When we are positive that those in power are accountable to The People, only then can we call them public servants,” said Sarah Dickerson in a statement reflecting upon her arrest. “The right to film the police is the least of what we could and should be asking for. There will never be justice on scene or in the media again if we are not free to document and film those in power and to hold them accountable. What we are doing in the Peaceful Streets Project has intersectional implications, all of which rely on our First Amendment rights to free speech and to freedom of the press. How our court cases play out will affect free speech and free press rights for all.”

Following Buehler’s second arrest, his attorney Joe James Sawyer called that arrest retaliation for his outspoken activism, a “deliberate action and part of a calculated effort to protect the officer who arrested him New Year’s Day”—Officer Oborski, who was also present at the third arrest.

The Austin Police Accountability Coalition has been calling on APD to implement a responsible and constitutional videorecording policy, modeled on Washington D.C.’s concise policy which notes that asking questions about the appropriate place to witness the stop–as Buehler was doing–is not a justification for arrest, in accordance with Supreme Court ruling. The D.C. policy provides that officers “are reminded that there is no justification for ordering a person to stop . . . unless the member reasonably suspects that a person has committed, is committing, or is about to commit any crime.”

“APD is on the losing end of the wrong fight,” said Sawyer. “This is the beginning of a real war, and it’s one they are going to lose. The Supreme Court of the United States has spoken to this . . . the people have a right to watch.”