April 14, 2014Dallas, Texas

J. D. SpillerChief of PoliceDART Police DepartmentP.O. Box 660163Dallas, Texas 75266-7268

Copy to Gary C. Thomas President/Executive Director Dallas Area Rapid Transit P.O. Box 660163 Dallas, Texas 75266-0163 Fax 214-749-0281

Re Exoneration of DART Police offi cer attempting to prohibit photography in public areas

Chief Spiller:

On April 3rd, 2014, in reply to an Open Records Request, I received a copy of the Letter of Exoneration presented to Offi cer LaToria Tolbert, DART Police Offi cer Badge #100, by the DART Police Department upon the completion of their investigation into my complaint of March 17th, 2014.

A copy of my original letters of complaint, including embedded photographs, is included on the CD disk accompanying this letter. A copy of the Letter of Exoneration is attached to this document. All photographs included in this letter are also included on the CD.

After a detailed review of the Letter of Exoneration, I believe the investigating offi cer did not conduct a proper investigation of the facts and events, reached a conclusion designed to protect Offi cer Tolbert before completing the investigation, and created a false description of events during the incident in order to validate that conclusion.

Your investigator maliciously portrays me as a troublemaker who regularly disobeys law enforcement offi cers. This description negatively impacts my reputation as a professional photographer, a Dallas Police Department Volunteer in Patrol, and a member of the City of Dallas Community Emergency Response Team.

Please fi nd attached an outline of statements made in the Letter of Exoneration by the investigating offi cer, followed by the true and accurate description of the facts on the ground, with photos showing same.

Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) was a case at the United States Court of Appeals for the First Circuit that held that a private citizen has the right to record video and audio of public offi cials in a public place, and that the arrest of the citizen for a wiretapping violation violated the citizen’s First and Fourth Amendment rights. These excerpts apply to the original DART incident and the actions of DART’s Police offi cers.

It is fi rmly established that the First Amendment’s aegis extends further than the text’s proscription on laws “abridging the freedom of speech, or of the press,” and encompasses a range of conduct related to the gathering and dissemination of information.

As the Supreme Court has observed, “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.”

“It is . . . well established that the Constitution protects the right to receive information and ideas.”). An important corollary to this interest in protecting the stock of public information is that “[t]here is an undoubted right to gather news ‘from any source by means within the law.’

The fi lming of government offi cials engaged in their duties in a public place, including police offi cers performing their responsibilities, fi ts comfortably within these principles. Gathering information about government offi cials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs.”

I am demanding a thorough and impartial review of this material by you and your administrative staff. If, upon completion of that review, you reach the same conclusion(s) as I did, then Offi cer Tolbert should be disciplined for attempting to prevent me from taking photographs of the incident, including but not limited to the use of threatening and intimidating gestures, in violation of my First Amendment rights.

The offi cer(s) who conducted the investigation should be disciplined for conducting an unprofessional and biased investigation, and submitting a Letter of Exoneration based upon this faulty investigation.

I demand a written apology for the offensive, accusatory and disparaging comments made by the investigating offi cer in the Letter of Exoneration, along with a written statement that clears me of any wrongdoing or unprofessional conduct during the incident.

And fi nally, DART and its police department must implement a policy that prevents aggressive and illegal action by DART Police Offi cers and personnel when encountering the general public taking photographs/video of DART activities and personnel. A copy of the Baltimore, MD Police Department’s policy regarding photography by the general public is attached and included on the CD.

It is the policy of the Baltimore Police Department to ensure the protection and preservation of every person’s Constitutional rights.

In furtherance of this policy, no member of the Baltimore Police Department may prevent or prohibit any person’s ability to observe, photograph, and/or make a video recording (with or without a simultaneous audio recording) of police activity that occurs in the public domain, so long as the person’s location, actions, and/or behavior do not create a legitimate, articulable threat to Offi cer safety, or an unlawful hindrance to successful resolution of the police activity.

Respectfully submitted,

Avi S. Adelman

5620 East Side AvenueDallas, Texas 75214

Telephone 214-923-3562

Email Avi@AviAdelman.com

cc: Mickey H. Osterreicher, Esq. General Counsel for the National Press Photographers Association (NPPA)

Attachments (print and CD)

Letter of Complaint by Avi S. Adelman to DART Police, March 7, 2014 (with addendum)

Response to Letter of Complaint by Avi S. Adelman from DART Police, March 17, 2014

Letter of Exoneration, DART Police Department, March 20, 2014

Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011)

Baltimore Police Department, General Orders - Video Recording of Police Activities

Photos embedded in this letter

Using Google Mapping, I created an overhead view of the incident scene.

The scene involved a fatality and offi cers must stay alert and in control of the entire scene for public safety and maintain the utmost respect for the victim and their family.

This is a noble and important goal for DART employees under the conditions that existed at that moment. However, those values should not be imposed on members of the media or the public.

The role of the media is to provide information, news and photographs/video in a completely objective and unbiased manner.

It is not DART’s place to tell photographers not to take photographs of the body (covered or not). It is not DART’s place to determine what is a proper or improper photo.

DART can and should provide some respect to the victim, but it should not create artifi cial barriers to the media in order to prevent the shooting of photographs DART deems disrespectful or embarassing.

In this incident, forcing the media to work from a designated area, and yellow-taping the entry to the auto body shop were both violations of our First Amendement rights to collect and publish information about public service employees and news events.

The Letter of Exoneration was written on March 20, 2014. This was three days AFTER a letter from DART Police explaining the matter had been investigated and appropriate action taken was mailed to my attention (March 17, 2014).

See attached copies of referenced documents.

[DART light rail] trains were still single-tracking [during the investigation of the incident]

At no time during the investigation did any train pass through the incident scene.

The train which struck the vehicle was parked on the southbound track.

Yellow crime scene tape was placed across both tracks.

Emergency vehicles were parked on the concrete pad where the train tracks cross the street.

The designated media area was on the train right-of-way.

Photo 1736, general view of train right-of-way across South Second Avenue.

(above) Photo 1733, pre-extrication / (below) Photo 1860, post extrication

Adelman admits in his complaint he did not obey verbal commands to stay back at the designated safe media area and therefore distracted the public safety offi cials which escalated the risk to all the public safety personnel and himself.

I had verbal contact with three DART personnel on the scene.

Upon my arrival, an unidentifi ed DART police offi cer directed me to the designated media area. I told him I was not going to stand in that area since I could not get a clear view of the accident scene.

He repeated his command to move to the designated media area. I stated I was going to walk within the public right of way outside the yellow tape such as the sidewalks. He did not reply (not direct quotes).

I walked to the public sidewalk in front of the Walker Auto Body Shop in order to photograph the incident from their private property. An unidentifi ed female offi cer (not Offi cer Tolbert) blocked my entry and then instructed another offi cer to put yellow tape on the entrance (photo #1705).

The owner of the body shop objected to the tape since it blocked access for his customers. His complaints were ignored by DART offi cers.

The owner of Walker Auto Body can be seen in this photograph watching the extrication process (far left side, with cellphone in hand, photo #1790). DART Police made no attempt to remove him from his property.

I called DART Public Information Offi cer Morgan Lyons and complained (loudly) about the efforts to force the media into the scrum area. He said, Noted, and hung up. Only moments later did I see he was at the incident. I did not speak to him again that day.

The designated media area was located in the train right-of-way on the concrete pad of the tracks across the street from the incident.

This photograph shows the public right of way (sidewalk) on Second Avenue which I used in order to circulate around the incident and photograph the event from the southeast side. This area was outside of the yellow crime scene tape.

The general public was not restricted in any manner from walking around the public right of way. They were allowed to cross the concrete pad outside of the yellow tape, walk on the sidewalks, stand across the street (Second Avenue, Scyene Road).

Other than the conversations noted above, I had no direct verbal contact with any other DART employees during the incident.

Comments

Members of the media cannot be given better access than the public to any public area (street), but they cannot given less access.

The public was not restricted in its ability to watch the incident. But DART police offi cers did not want any media representative with a professional-grade camera walking around the incident. They wanted to prevent the shooting of any photographs that might be embarrassing to DART or its investigation.

If my activities were such a life-threatening distraction to public service employees, why did a DART offi cer or other public service employee not come over and ‘read me the riot act’, detain me, physically push me out of the area, or take any other action to in order to prevent the escalation of risk or distraction?

Based on the preponderance of evidence from the photo angles, Adelman was in the roadway, in the train right of way, and in the grassy area taking photos.

At no time during the investigation of my complaint did anyone from the DART Police Department contact me to ask where I was standing when specifi c photos were shot.

The investigating offi cer reaches his conclusions regarding my positions based on a review of the photographs only.

He does not state if he consulted with another professional photographer in this review. That photographer would have told him you cannot look backwards from a photo and determine where the camera was located, due to variations in cameras, lenses and framing.

However, he would have been able to access the technical information outlined below, which is embedded into each digital image even if it is copied to another disk directly (not download from websites). This information would have been available even on the photos submitted on a disk to DART Police.

I shoot on a Nikon D90, a semiprofessional camera. Most of the photographs taken were shot using a 70 to 300mm zoom lens. Depending on the setting of the lens, it could appear that I was “in the scene” close to the action, or further back shooting an “environment” picture.

At the time of the incident, a Dallas Fire Rescue vehicle was being used to partially block viewing of the struck vehicle from Scyene Road (photo #1749).

Photograph #1865 was taken from the southernmost point of the fence where it makes a 90-degree turn. The fence is approximately 4 feet tall. The camera was positioned over the top of the fence.

This photograph, shot from Scyene Road, shows the same corner used for shooting Photograph #1865. The grass is in the public right-of-way.

Photograph 1747

Photo 1747 was photographed on Saturday, March 01, 2014, 11:00:52 AM, per the Properties fi le for the photograph. A review of the EXIF fi le (exchangeable information fi le) for this image shows the zoom lens was shooting at 98mm.

Both reports are on the next page.

Photograph 1748

Photo 1748 was photographed on Saturday, March 01, 2014, 11:01:08 AM, per the Properties fi le for the photograph. A review of the EXIF fi le (exchangeable information fi le) for this image shows the zoom lens was shooting at 70mm.

Both reports are on the next page.

Using a 70 to 300mm zoom lens, I was able to shoot a full frame image of the struck vehicle, and in less than 20 seconds was able to get an ‘environmental’ shot of the same vehicle and surrounding activities, without moving from my position on the traffi c median on Sycene Road (public right-of-way).

Comments

The investigating offi cer accuses me of interfering with the public service employees on the scene, crossing the yellow tape and standing in places which were not safe or legal (not in the public right of way). That is simply not true.

He made these statements without asking where I was standing, but based on a non-professional review of the photographs submitted, as if this was some kind of damning criminal self-indictment offered to him on a silver platter.

He used fuzzy science and logic in order to determine my position while taking the photos, rather than conducting even a cursory review of the photo’s property fi le or asking a professional photographer to review EXIF data.

He also fails to consider the impact of a zoom lens while taking photographs, which gives you the impression of being in the incident while safely standing outside.

In other words, he states a conclusion without any supporting evidence, hoping nobody would challenge his impossible assumptions.

Adelman took over 200 photographs of the incident [provided to DART] and the offi cers appear to be distracted by Adelman, so they directed him away from the accident by using verbal commands and hand gestures, which he disobeyed.

This is the median on Scyene Road, where I stood for many photographs during the extrication process. It is in the public right of way and is wide enough for at least three people to stand across safely. There is no restriction on my being able to stand on it.

Only one DART offi cer objected to my presence – Offi cer Tolbert.

A Dallas Fire/Rescue offi cer tried to get my attention with a ‘death stare’, which I ignored. That issue has been submitted to DFR’s Public Information Offi cer.

Offi cer Tolbert did not speak to me at any time during the incident. She did not come closer than 50 feet from my position.

Her hand gestures are clearly not telling me to move away (eg a wave of the hand or pointing to the right or left), as illustrated below.

A reasonable person would believe Offi cer Tolbert’s hand gestures are accusatory, threatening or intimidating.

This is Offi cer Tolbert’s Hey, you, go away, stop taking pictures face. Note the red-headed DFR offi cer on the right trying to give me a death stare.

This is Offi cer Tolbert’s STOP TAKING PICTURES NOW! face.

This is Offi cer Tolbert’s Hey, I know where you live and this is your last warning face.

This is her Hey, I know where you live and this is your last warning face in an extreme close-up image. (note the popped veins across her forehead – she’s really mad!)

This is Offi cer Tolbert taking photographs of the body as it’s being extricated from the vehicle by Dallas Fire/Rescue.

The offi cers performed as they were trained.

A – Offi cers allowed photos and video to be taken

B – Offi cers advised everyone to stay at a reasonable distance from the scene

C – No one should interfere with public service employees and responsibilities

D – No one should create a safety concern for public service personnel or other persons

Comments

A – DART Police offi cers forced the media into a confi ned designated media area on the train’s right-of-way. They attempted to force me into the same scrum, which I refused to do. I stated I was going to walk on the sidewalks (public right-of-way).

Offi cer Tolbert, by her hand gestures, was attempting to intimidate me to stop taking photographs of the incident. I felt threatened and believed I was going to be arrested by Offi cer Tolbert.

The collective actions of DART offi cers were a violation of my First Amendment rights

B – DART offi cers advised me only one time to go into the designated media area. There was no further verbal contact with the offi cers or any other DART personnel, only offensive and threatening gestures by Offi cer Tolbert.

When I attempted to enter Walker Auto Body (private property), DART offi cers put yellow tape on the gate without asking permission of the shop owner. This was a violation of their property rights, an illegal seizure of their property, and another violation of my First Amendment rights.

C – I absolutely did not interfere with the actions or duties of public service offi cers. In fact, as seen in the photos, I avoided contact with them and used a zoom lens to maintain a decent but photograph-ready distance.

If I was the extreme hazard to myself and public service employees as described, why was I not cited for disorderly conduct, causing a disturbance or any other charge?

Why did DART personnel not speak to me directly while on site? Because I did nothing illegal or wrong. All I did was exercise my First Amendment rights to document public service offi cials doing their job and a news event.

D- I agree with this. See C