The event that spurred this post happened more than eight months ago, which I realize makes it positively Pleistocene in Internet time, but I think it’s important to keep poking at it anyway, because the real risk is posed when we forget. It also happened to someone else, not to me—or more specifically now to several someone elses, and the number is growing. But it happened to take place where I live, and happened to someone doing something I very much like to do (“like” may not even be the right word here; it’s something I sort of think I have to do, in some way). In any event, the basis for that long-ago incident remains very much alive and well, and deserves to have the light shone on it, frequently and repeatedly.

An article in the July 12, 2011 issue of the Long Beach Post, described an incident that had occurred for the second time in less than a month: Police officers in Long Beach, California, detained a photographer who was, knowingly and with malice aforethought, taking pictures of things.

It wasn’t a case of a photographer trespassing to get just the right angle, or knocking over a little old lady who’d wandered into an otherwise perfectly-framed shot—neither of which would, in my mind, merit arrest anyway (little old ladies, beware!). No, it was simply this: The photographer, Sander Roscoe Wolff, was taking pictures of the interesting lines and shadows and rusty colors and geometry of an oil refinery. Here’s the photo, which is clearly filled with criminal intent and oozing probable cause:

The photo that got Long Beach police all upset

Let’s be crystal clear here: The photographer was not trespassing on private property, and was not invading anyone’s privacy. Officer Asif Kahn acted—and this is the truly scary part—because he’d determined that the photographer was taking pictures of something that lacked “apparent aesthetic value.”

Let’s say that again, slowly: The police officer acted because he felt that the photographer was not taking a pretty picture.

In their eagerness to protect citizens against terrorists, Long Beach police are acting under a precedent set by the Los Angeles Police Department’s Special Order No. 11, which established a “policy … to make every effort to accurately and appropriately gather, record and analyze information, of a criminal or non-criminal nature, that could indicate activity or intentions related to either foreign or domestic terrorism.” Such activity or intention includes, among a wide variety of other things, the use of binoculars or a camera to take photos of a building’s entrance; asking about an establishment’s hours of operation; and taking pictures or video footage “with no apparent esthetic value.”  (The LAPD policy has been held up by the Department of Homeland Security  as a model for other police departments nationwide. The American Civil Liberties Union (ACLU) takes a somewhat differing view, and has sued on behalf of several detained (or harassed) photographers.)

“If an officer sees someone taking pictures of something like a refinery,” said Long Beach Police Chief McDonnell, “it is incumbent upon the officer to make contact with the individual.” While there is no police training specific to determining whether a photographer’s subject has “apparent aesthetic value,” McDonnell says officers should make such judgments “based on their overall training and experience” and will generally approach photographers not engaging in “regular tourist behavior.”

For once I can be concise: Yikes!

So if I’m not taking a picture of a pretty sunset over the beach, or palm tree-lined streets, or surfers, I’m apparently engaging in suspicious, terrorist-like activity and should be picked up by the gendarmes, clapped in irons, and thrown in the deepest dungeon—or at least questioned and have a background check run. If a recent graduate of the police academy  doesn’t see the “apparent aesthetic value” inherent in the thing I’m pointing my Nikon at, then she’s empowered to stop and question my intentions.  (With all due respect to graduates of our nation’s many fine police academies, I can’t help but wonder whether or not the standard curriculum includes Art Appreciation courses.) This is a disturbing expansion of police power, a scary permission for armed, uniformed government agents to act based not on what they know about criminal activity, but on their subjective opinion about what’s an aesthetically appropriate subject for a photograph. Such an authorized intrusion of personal opinion into the exercise of police authority begins a slippery slope that should give everyone pause—possibly even especially, to be blunt, a police officer named Asif Kahn.

The Following Photograph is Aesthetically Approved by the Long Beach Police Department

(Oh I know what the criminologists will say—and some of my best friends are criminologists: “The police have experience with criminal behavior, and are trained to cooly identify the tell-tale signs that someone’s acting suspiciously. Rest assured, little frightened photographer citizen; policie officers must be trusted to exercise discretion, but only the evil-doers will be detained.” And apologists on the political right will tut-tut at me that innocent photographers have nothing to fear from answering a question or two posed by a police officer/art critic, and isn’t that just a wee tiny small price to pay for greater security from the bad guys? And to both of those I say: No. The mere act of taking a photograph of something that, in the police officer’s opinion, is not something that’s usually photographed by millions of tourists or otherwise lacks visual appeal most certainly does not constitute probable cause for a police officer to stop and detain the photographer. One hesitates to get all slippery-slopey here, but what comes next: police officers may detain someone for reading a book that has never appeared on the New York Times Best-Seller List? Patrons of art-house movies can be stopped and questioned because they saw a film that wasn’t directed by James Cameron? If popularity is the test, nothing new will be created, and artists will be stifled and silenced and lens-capped.)

Thing is, I don’t always take pictures of stuff others might consider conventionally Pretty. Sometimes I take pictures of big, ugly, rusty things.

I have ventured into San Pedro to take pictures of container ships in the Port of Los Angeles (and the occasional pelican).

I have focused my lens on peeling paint, and oil drills.

I have taken pictures out of airplane windows of the Ports of Los Angeles and Long Beach.

I’ve taken pictures of airport runways, and LAX from the air.

And at no point was I plotting a terrorist attack (although in the case of the aerial photos I was absolutely in violation of the “all electronic devices must be turned off” announcement, and plead utterly guilty). But in the narrow minds of the local Long Beach constabulary, my aesthetic may sometimes be somehow akin to Al Qaeda’s.

Beauty, it has been said far too often, is in the eye of the beholder. Except in Southern California, where beauty is in the eye the police department. That badge symbolizes not only police officers’ role in defending the community against miscreants and evil-doers (a role which I am unequaled in my admiration and appreciation), but also apparently their empowerment to act as art critics as well; “to serve, protect, and pass aesthetic judgment.

That’s the part I don’t like at all, and that’s the thing that must be watched.

Photo of a guard at the Forbidden City in Beijing, just before he told me "No photos." I was not detained.

This photo of a guard at the Forbidden City in Beijing, just before he told me "No photos." I was not detained.