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 Bibring'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 agencies 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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