COMMENTARY: Unlawful Police Detentions and Pat-downs in Downtown Long Beach? Part 2
2:45pm | For Part 1 of this story, go here.
Sgt. Maurice Hill is an unfailingly polite man, and I'm guessing that goes whether or not he's wearing his L.A. County Sheriff's Department shield.
When I come to the courthouse at his invitation the day after my incident, he makes it clear to me that he has a sincere interest in community outreach and that his willingness to talk with me is due even more to my role as a resident concerned about a police encounter than it is my role as a member of the media.
But he's also in charge of a number of fellow officers, plus he is not a public information officer, or PIO — the typical media liaison for a law-enforcement bureau — so he parses his words for print very carefully. He declines to be recorded, and we agree that I will make physical notes of what he says only after clearing it with him that the point is on the record.
"We have a duty to check out any suspicious circumstances," he says. And though he stipulates that there is no official directive stating that an individual taking pictures of the courthouse is, as a matter of legal fact, suspicious or must be acted upon, he says photographing the courthouse "always meets the standard for making contact [with the photographer]. Now, how it's done is a different thing."
He's anticipating — correctly — part of my issue with what happened: whether or not I was actually detained. He says he did not witness this part of the incident and so cannot comment. When I ask whether he feels someone taking pictures of the courthouse rises to the level warranting detainment, he declines comment, as he does on whether it is within policy to detain someone lacking probable cause.1
He goes on to say that it is within policy not only to perform a "pat-down search" (his term) despite lacking probable cause, but that "taking pictures of the courthouse does meet the standard for a pat-down search."
But Hill says that whether such a search is performed is up to the discretion of the officer. Should one have been conducted in my situation? "Probably not," he says.
According to Sgt. Rich Peña, a PIO for the L.A. County Sheriff's Department, whether officers contact an individual solely for photographing a courthouse or other similar institution "depends on what the situation is at that particular facility. If they have some sort of intelligence or some sort of information saying something's going to happen, or if they're on high alert ..."
However, Peña says that typically an individual would not be detained solely for taking pictures.
And is eight officers excessive in such a circumstance? "On the face of it, yes," Peña says. "But I can think of 10 different reasons why you'd have eight guys out there." As a possible example he offers a scenario where several trainees were available when such a call came in, along with a lead officer who wants them to see how to handle a given situation. "But it does seem like a lot," he admits. "But without knowing what they were thinking, I couldn't tell you. … [But] if you tell me all the guy was doing was taking pictures and I'm John Q. Citizen, I say okay, that sounds like a lot. "
Peña names "reasonableness" as the standard that must be met for officers to conduct a pat-down search. "Is it reasonable to think the person may be a threat to your safety?" he says rhetorically.
For comparison — and since I'm a Long Beach resident, after all — I thought I'd check in with the Long Beach Police Department. Is photographing the courthouse an activity for which LBPD officers would typically approach someone?
"It depends. There's no black-and-white answer to that question," says Sgt. Rico Fernandez, a department spokesperson. "Detentions are based on reasonable suspicion, and that's a law that applies to the entire state of California. Reasonable suspicion is based on the officer's belief that a crime has occurred, is occurring, or is about to occur."
Fernandez confirms that taking photographs of the courthouse is a legal activity. "But a courthouse is considered a critical facility," he says, "and if somebody calls to report what they believe is suspicious, any law-enforcement agency receiving that call has an obligation to investigate."
But does it take eight officers to do so? Fernandez balks at saying how many officers clearly would be too many, but states, "Generally, that's the type of call that one officer would respond to."
Once officers responded and contacted the photographer, would they automatically conduct a pat-down search? "I am not saying everyone would do it or everyone has to do it," Fernandez says, "but you can be subjected to a pat-down search legally if you are the subject of a detention."
Gary Anderson, a Long Beach assistant city attorney, whom I contacted at the suggestion of Fernandez, names the standard for police detention as "reasonable suspicion of criminal activity. … If there's no [suspicion of] criminal activity, then there's no reason for the detention."
Anderson says he doesn't know offhand if taking pictures of the courthouse is legal,2 but he says that if it is legal, in and of itself it does not rise to the level at which police may detain a person. As for pat-down searches, Anderson says they may be conducted on a detainee "for safety reasons."
Anderson calls the 1968 Supreme Court ruling in Terry v. Ohio the "lead case" regarding police detentions and pat-down searches. And while I'm no lawyer, that case seems to indicate that the logic for patting me down was dubious, if not flatly unlawful:
Moreover, in our discussion of detentions and pat-down searches, Fernandez referred me to California Penal Code Section 833.5. But the text of that section is centrally concerned with firearms and seems to pretty clearly indicate that officers must have a good-faith basis to suspect that the detainee is armed. For example, from Subsection (b): "a peace officer may conduct a limited search of the person for firearms or weapons if the peace officer reasonably concludes that the person detained may be armed and presently dangerous to the peace officer or others."
[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, … where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. (p. 30)
In response to my follow-up question about whether he would care to clarify LBPD policy on the question of pat-down searches, Fernandez suggested I contact the L.A. County counsel (the legal body that represents the L.A. County Sheriff's Department).3 In response I reminded Fernandez that for the purposes of this story I was not asking any questions directly related to my incident (since of course the LBPD was not involved in any way), but only about LBPD policy on detentions and pat-down searches. It is my hope that for the sake of clarifying department policy he will eventually follow up with me.
Since my incident occurred within Councilwoman Suja Lowenthal's Second District, and since I am one of her constituents, it seemed worth giving Lowenthal an opportunity to weigh in. After being briefed on my experience by Chief of Staff Broc Coward, she issued the following statement:
However, her office declined to comment on any issues related to the possibility that police in her district are detaining and pat-down searching persons at variance with state and federal law.
Not knowing the exact details or what type of security threats the courthouse experiences, it's hard to comment. That being said, I want to preserve the need and right of law enforcement to protect high profile local, state and federal properties, but feel this incident could have been handled better given your constitutional rights.
Says the Supreme Court in the Terry case:
I am not pretending this is a story about gross misconduct on the part of police. I'm not filing a lawsuit, and to date I have not filed a compliant. But I think my experience is worth sharing because as a society we necessarily bestow great power and responsibility on law enforcement. And so when eight officers confront and physically detain a resident for his engaging in legal activity, it's worthy of examination.
No right is held more sacred, or is more carefully guarded, by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. … [T]here must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual … [I]n determining whether the officer acted reasonably in such circumstances, due weight must be given not to his inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. (pp. 9, 27)
Citizens have a right to know how they will be and are being treated by police in a given scenario. By the same token, it's probably a good thing if once in a while police see themselves reflected in the eyes of those they are sworn to serve and protect. Perhaps that's especially true in regard to instances like this one, where the question is subtler than corruption or the use of deadly force, and instead concerns the day-to-day freedoms of Joe Public standing on the sidewalk in shorts and T-shirt taking pictures of his neighborhood.
Our freedoms come in a variety of flavors, including the freedom to act and the freedom to be left alone to engage in legal activity. Or that is my hopeful understanding. But the truth is that our freedoms come down to praxis. We enjoy the freedoms that are not impinged upon by an external force — law enforcement, government, what have you.
Ever been confronted by eight armed police officers when you have done nothing wrong, told to put your hands behind your back? It's not an excessively comfortable feeling.
Early in our June 3 discussion, the man who on June 2 was for me the face of the L.A. County Sheriff's Department shared a personal reminiscence: Once upon a time, way back before Hill had a badge, guilty of nothing other than being black (he's too polite to put it like that, but the implication is clear), the young man who would become the police sergeant in front of me found himself detained by over a dozen cops. And he didn't much like it.
Hill knows how it feels to be physically detained by a uniformed posse. He donned that uniform, he says, partly to change the manifestation — in both perception and reality — of that posse within the community.
Three decades later, that man told me he plans to discuss the matter further with the officers involved. I believe he will. And I'm glad. Discussions are good.
1Hill does stipulate that no probable cause of a crime's having been committed existed in my situation.
2See note 3.
3In seeming paranoia about legal action, Assistant County Counsel Roger Granbo flatly refused to discuss the matter with me, except for stating that photographing the courthouse from outside is legal barring any specific "orders" to the contrary.