National Press Photographers Association, Inc.

The Society of Professional Photojournalists

1100 M&T Center 3 Fountain Plaza Buffalo, NY 14203 Phone: (716) 566-1484 Fax: (716) 608-1509 lawyer@nppa.org

VIA EMAIL & FACSIMILE JLoftus@mdpd.com (305.471.2163) February 3, 2012 Director James Loftus Miami-Dade Police Department 9105 NW 25th St. Doral, FL 33172 Re: Arrest of Carlos Miller Case # B12004076

Dear Director Loftus, As general counsel for the National Press Photographers Association (NPPA) I have just been made aware of an arrest of one of our members, Carlos Miller, on Tuesday night, January 31, 2012 at approximately 10:00 pm near the intersection of NW 3rd Avenue and West Flagler Street. Mr. Miller is a journalist who was covering the Occupy Miami movement events that night for Miami Beach 411, where he is also a senior editor. Mr. Miller has been reporting on the Occupy Miami movement since it began and has a long running blog Photography is Not a Crime, which also published this story. Mr. Miller works tirelessly to point out to his reader that, as the title states, the act of taking pictures or recording in public is not against the law; but he also makes every effort to highlight police officers who conduct themselves properly as he did in a story published on October 30, 2011. Although there were many other media members present on the night in question, we believe he was the only one of them arrested. What is also disturbing is that he was charged with a single count of violating Florida Criminal Procedure and Corrections Law 843.02 Resisting officer without violence to his or her person. Aside from a blatant violation of Mr. Millers First Amendment rights to record matters of public interest in a public place we do not understand how, absent some other underlying charge for which there was probable cause, a charge of resisting arrest can stand on its own? While it may be understandable that your officers had a heightened sense of awareness due to the nature of the circumstances surrounding that night, it is still no excuse for them to not recognize a journalists right to take photographs/record video of an event occurring on a public street. In addition to the arrest, the fact that Mr. Millers cameras was unlawfully seized and while it was in police custody an attempt was made to delete Mr. Millers recordings of the arrest are also extremely troubling. We believe that the recovered video of the incident will show that officers acted outside of their authority, in violation of the First, Fourth and Fourteenth Amendments of the United States Constitution as well as the Privacy Protection Act of 1980 and similar protections provided by Florida law.

In a similar incident in Baltimore (Sharp v. Baltimore City Police, et al), the U.S. Department of Justice recently filed a Statement of Interest saying among other things:
This litigation presents constitutional questions of great moment in this digital age: whether private citizens have a First Amendment right to record police officers in the public discharge of their duties, and whether officers violate citizens Fourth and Fourteenth Amendment rights when they seize and destroy such recordings without a warrant or due process. The United States urges this Court to answer both of those questions in the affirmative. The right to record police officers while performing duties in a public place, as well as the right to be protected from the warrantless seizure and destruction of those recordings, are not only required by the Constitution. They are consistent with our fundamental notions of liberty, promote the accountability of our governmental officers, and instill public confidence in the police officers who serve us daily.

As our organization, founded in 1946 with over 7,000 members, has pointed out to numerous groups and law enforcement agencies, photography by itself is not a suspicious activity. The reliance by your officer to question, detain, interfere with, arrest, seize and attempt to destroy the property of someone engaged in a lawful activity under color of law is reprehensible. At best behavior that chills free speech is extremely unprofessional at worst it is criminal. Law enforcement agencies are established to uphold and enforce existing laws not to act in a lawless manner. Photography may not be restricted in a public place by officers wishing to avoid the documentation of their actions. NPPA stands ready to work with your department to help develop proper police-press guidelines and provide improved training in order to avoid similar situations. In the meantime please accept this letter as a formal complaint which needs to be fully investigated by your professional standards unit. Additionally, we respectfully request that the charge against Mr. Miller be immediately voided or dropped in the interest of justice. We further request that your department immediately issue orders directing officers to cease such activity and also that your department implement revised training for all officers regarding these matters. Thank you for your attention in this matter. I look forward to your response.

Very truly yours,

Mickey H. Osterreicher
Mickey H. Osterreicher General Counsel

cc:

Hon. Carlos A. Gimenz (via email) Hon. R.A. Cuevas, Jr., Miami-Dade County Attorney (via email) Hon. Joe A. Martinez, Miami-Dade District 11 County Commissioner (via email) Hon. Genaro Chip Iglesias, Miami-Dade Chief of Staff/Deputy Mayor (via email) Mr. Carlos Miller (via email) Sean Elliot, NPPA President (via email) Michael Koretzky, SPJ South Florida Chapter, President (via email)