The U.S. Department of Justice has taken the rare step of intervening in a civil rights dispute in Maryland, arguing that a photographer’s recording of police activity in public was constitutionally protected conduct.

Civil rights division lawyers filed a "statement of interest" on March 4 in support of photojournalist Mannie Garcia, who filed suit last year against a suburban Maryland police department. Garcia claimed that police unlawfully arrested him in June 2011 as he took photos of the arrest of two Hispanic men.

Garcia, represented by a team from Davis Wright Tremaine, said in his complaint that he was on a public street and had identified himself as a member of the press. An officer, according to the suit, "placed Mr. Garcia in a choke hold and dragged him across the street to his police cruiser." The police seized Garcia’s camera. A Maryland judge found Garcia not guilty at trial of disorderly conduct.

The Justice Department warned in its statement, filed in U.S. District Court for the District of Maryland, that that discretionary charges, including disorderly conduct, resisting arrest and disturbing the peace, "are all too easily used to curtail expressive conduct or to retaliate against individuals for expressing their First Amendment rights." Trial judges, the department said, should "view such charges skeptically."

"The United States urges the court to find that both the First and Fourth Amendments protect an individual who peacefully photographs police activity on a public street, if officers arrest the individual and seize the camera of that individual for that activity," government attorney Rashida Ogletree wrote.

The Justice Department argued for dismissal of a motion by Montgomery County, Md., that asks the trial judge to throw out Garcia’s civil rights suit. The federal government said Maryland’s attorneys failed to "adequately recognize" constitutional protections accorded to Garcia’s conduct. Garcia said in his complaint that he believed the police actions in detaining the two men "might be inappropriate and that they might involve excessive force."

"Both the location of Mr. Garcia’s photography, a public street, and the content of his photography, speech alleging government misconduct, lie at the center of the First Amendment," Ogletree wrote. The arrest of Garcia, she continued, stopped him from "photographing a matter of public interest and prevented him from distributing those photographs to the public."

Patricia Via and Patricia Kane, lawyers for the county, said in court papers last month that the officer who detained Garcia had acted "in the discharge of his official duties and responsibilities as an employee of Montgomery County. His actions were performed in good faith and with the objectively reasonable belief that his acts were lawful and constitutional."

The county’s lawyers denied that Garcia identified himself as a member of the press and that he was behaving peacefully. The attorneys also rejected the notion that a police officer placed Garcia in a choke hold.

Davis Wright Tremaine partner Robert Corn-Revere and Ronald London, of counsel, represent Garcia.

"The fact that the federal government has chosen to take a stand underscores the fact that this is far from an isolated case," said Corn-Revere, who practices in First Amendment law and communications. "Unfortunately, police departments in jurisdictions across the United States will have to learn from cases like this that photography is not a crime."

Mickey Osterreicher, general counsel of the National Press Photographers Association, said in a formal statement that the Justice Department’s filing marks the second time the government has issued a statement of interest concerning the lawfulness of the public recording of police activity.

The government, Osterreicher said, filed a statement in an unrelated case in Maryland federal district court that addressed that right. The department’s new statement addresses the rights of both the press and the public.

No trial date has been set. U.S. District Judge J. Frederick Motz has not ruled on Montgomery County’s request for dismissal. Garcia’s attorneys filed their opposition brief on March 5.

The suit seeks, among other things, an injunction barring police from detaining journalists and members of the public who are recording law enforcement activity.

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