This tumultuous year has proven the essential nature of nonpartisan local news. Every day we bring you news critical to staying informed and active in the community. Join us with a tax-deductible donation.
An Anaheim police sergeant confronted a Voice of OC reporter about taking pictures of him Friday as the sergeant detained a homeless man and two other people in a city park.
Around 12:40 p.m., the reporter was at Maxwell Park to follow up on reports of enforcement sweeps against homeless people, when police in unmarked cars pulled over a silver Volvo in the park’s parking lot and told its three occupants to get out and sit on the curb.
The reporter, Spencer Custodio, recognized one of the detained people as homeless man Les Greenberg, and began taking photos from a distance.
Sgt. Michael R. Lozeau noticed Custodio and began speaking to him.
“Hey, uh, want to ask my permission?” Lozeau said.
“I’m a reporter – Voice of OC,” Custodio replied.
“I don’t care who you are,” the sergeant replied. “Have a common respect, and ask my permission if you wanna take my picture.”
“Well, may I take your picture?” Custodio asked.
“No,” said the sergeant.
“It’s a First Amendment right, sir,” said Custodio.
“Yeah it is – okay. That’s good,” Lozeau said.
“Okay,” Custodio replied.
“Wanna play that game, huh?” the sergeant asked.
“I’m not trying to play games,” Custodio replied.
“Keep an eye – stay where I can see you, alright? Or leave,” Lozeau said.
“Okay,” Custodio said.
“You understand?” asked Lozeau.
“You got it,” Custodio replied.
American courts have held the public has a right to film government officials, including police, carrying out official actions in public.
“The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest,” the 9th U.S. Circuit Court of Appeals, whose jurisdiction includes California, ruled in the widely-cited 1995 case Fordythe v. Seattle.
“Simply put, the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public,” the 3rd U.S. Circuit Court of Appeals wrote in a ruling last year.
“The government has no more right to stop you from taking photographs than it does from writing down information,” said government transparency expert Terry Francke, Voice of OC’s open government consultant and general counsel of the nonprofit Californians Aware.
“They’re both means of communication that are actually protected by both freedom of the press and freedom of speech.”
In a phone interview, the Anaheim Police Department’s spokesman, Sgt. Daren Wyatt, said “courts have repeatedly ruled that police officers can be filmed in their duties,” unless it’s interfering with their duties.
“Generally if you’re out of their way and not interfering with them, it should be okay,” Wyatt said.
Wyatt said he spoke with Lozeau, and the sergeant’s story of what happened Friday “is a lot different.”
“He did say that they were out on a car stop, that a person he didn’t know” started taking photos, Wyatt said.
“And [Lozeau] made comment that, ‘Hey are you going to ask my permission before you take my [picture]?”
“He never told him he couldn’t take pictures. Never told him he couldn’t take pictures of [officers]. And I understand [the reporter] may have taken it as flippant, but [Lozeau] felt the reporter…rolled up on them unannounced, didn’t tell him who he was, what his purpose was,” Wyatt said.
“It probably would have gone a lot different if Spencer identified himself” and explained he was working on a story, Wyatt said.
Custodio immediately identified himself as a Voice of OC reporter when Lozeau spoke with him.
Lozeau said “as a common courtesy” people ask permission to take photos, Wyatt said.
“He knows that people can take his picture,” Wyatt said of Lozeau.
Wyatt said the department does not have a specific policy against officers improperly telling members of the public they can’t photograph or film police.
It’s unclear if Anaheim officers receive training regarding the right of members of the public and journalists to photograph and film them in public. Wyatt said he didn’t know if such training is provided, and that an answer could come by filing a California Public Records Act request for the training.
Lozeau is the head of the Anaheim Police Department’s Homeless Outreach Team, and has served in that capacity over the past several years.
Last year, homeless activist Lou Noble filed a federal civil rights lawsuit against Anaheim alleging Lozeau illegally arrested the activist for filming him at Maxwell Park in 2015. The case is still pending.
Portions of Noble’s arrest were filmed by another activist, R. Joshua Collins, who posted the video to YouTube. It wasn’t immediately clear Friday evening what circumstances led to Noble’s arrest, and whether Noble was criminally charged.
Collins also was detained by Anaheim police in 2015, while filming from more than 20 feet away in a public park, according to a video he posted. In the video, an officer walked over and said Collins was being arrested because he “walked through all the trucks” and had been warned not to do so.
Noble filed his lawsuit in federal court in Santa Ana, where it was assigned to Judge David O. Carter, who is also presiding over a high-profile homelessness case regarding Orange County’s shelter shortage.
Maxwell Park has become an epicenter for homeless people after the closure of the Santa Ana riverbed homeless camp earlier this year. Their presence has prompted allegations of rising crime in the park, as well as claims of unconstitutional arrests by police seeking to push homeless people out of the park.
During a hearing Friday in the shelter-shortage case, Carter said, “Maxwell [Park] is a complete mess.”
About 40 people were scattered in the park Friday afternoon as the court hearing was proceeding. Many had their belongings strewn on the grass and others were packing up to leave.
Before he was detained Friday, Greenberg, who is 60 years old, was sitting on the grass in the shade at the park, resting his head on an Oakland Raiders pillow. With a walking cane beside him, his toes were visibly swollen on both feet in two foot braces.
Greenberg said Anaheim police officers impounded his van Thursday because he had five unpaid parking tickets.
“That was it,” Greenberg said, pointing to a few stacks of his belongings in boxes next to him.
He said he was waiting for a couple of friends to go look for a new car.
Greenberg later entered the silver Volvo, which was about to leave the park’s parking lot around 12:40 p.m. when the officers in unmarked cars pulled it over.
The officers told the driver – Greenberg’s friend – they pulled him over for DMV registration tags that expired in 2016.
Custodio began to take pictures of the officers’ interactions with Greenberg when Lozeau noticed him.
Correction: A previous version of this story misspelled the last name of Sgt. Daren Wyatt in one reference.
Reporting intern Kassidy Dillon contributed reporting.
Contact Nick Gerda at email@example.com and follow him on Twitter @nicholasgerda.
Spencer Custodio is a Voice of OC reporter who covers south Orange County and Fullerton. You can reach him at firstname.lastname@example.org. Follow him on Twitter @SpencerCustodio