Directive Orders Photographing of Youths by Police

In a practice decried by American Civil Liberties Union attorneys and hotly debated by constitutional experts, San Diego police officers have been told to routinely stop and photograph minority youths suspected of being gang members, according to an internal department document obtained by The Times.

Patrolmen in the Central, Eastern and Southeastern stations were asked in a Nov. 19, 1982, department memorandum to “obtain a photograph . . . if at all possible” should they encounter any of several alleged gang members listed in the communication. They were advised that the police gang unit, which is charged with monitoring and curbing gang activity in San Diego, needed to update its picture file of suspects.

Police officials acknowledge that they photograph suspected gang members but have declined to comment on the practice because of a pending civil suit against the department by a Vietnamese youth who said he was harassed and illegally photographed. But several sources said the 1982 directive is still being followed in “certain circumstances,” and a copy of the 3-year-old memorandum was found on Officer Donovan Jacobs’ clipboard in his patrol car after he, another officer and a civilian observer were shot in March. Sagon Penn, a 23-year-old black man, is charged in the shootings.

“Investigative Tool”

The controversial photography practice--called an “investigative tool” by a legal adviser to the police--is heavily enforced in the black, Latino and Asian communities and has taken on added significance in recent days. Penn’s defense attorney charged in court documents filed last week that Jacobs has stopped and photographed an estimated 500 young black men in the last three years.

Jacobs could not be reached for comment.

Penn is charged with wounding Jacobs, fatally shooting Officer Thomas E. Riggs, and wounding Sarah Pina-Ruiz, a civilian who was riding in Riggs’ patrol car on March 31 in Encanto. Penn is scheduled to go to trial on murder charges next month. The incident began when Jacobs, who is white, radioed a police dispatcher that he was stopping Penn’s truck because he suspected it was carrying members of a black gang from Southeast San Diego.

Last month The Times reported that police routinely stop, interrogate and photograph suspected gang members in the Vietnamese community. Several Vietnamese youths charged that police have stopped cars they were riding in and ordered everybody out so they could be photographed. The manager of a cafe patronized by young Vietnamese men said that on one occasion police entered his restaurant and locked the doors.

The man said that police lined up the youths against a wall, forced them to strip to the waist and photographed them front and back. He said that police took their names and addresses and left without making any arrests.

Allegations by Attorneys

Defense attorneys have charged that the instructions in the memorandum allow the police to stop not only gang members, but all people they suspect of being gang members, for no reason other than to photograph them.

“They are doing this without probable cause. Kids are being stopped only so police can take their photos and file them. These kids aren’t arrested or charged with anything,” said Margie Woods, who represented a Vietnamese teen-ager who was acquitted in an attempted murder case.

The youth, Bao Hoang, was arrested after the victims identified him through a photograph that had been taken 10 days before the Sept. 11 attack. During the trial the victims recanted their identification of Bao and a juvenile court judge dismissed charges against the youth. On Nov. 12, Woods filed a $500,000 civil suit against the department and two of its officers, charging that the youth had been harassed by police and challenging the legality of the picture taking.

Deputy Dist. Atty. Mike Carleton, acknowledging that case law in this matter is still “very gray,” said that no citizen has a right to refuse an officer’s request to be photographed when the officer has a reasonable suspicion that he might have committed a crime. Depending on the circumstances and severity of the crime being investigated, Carleton said that a person who challenges the taking of his photograph by an officer could be charged with “delaying and obstructing a police officer in performance of his duties” and jailed.

Furthermore, Carleton said that a suspect’s refusal to be photographed could be construed as “an implied admission of guilt.” But he also pointed out that the courts “sometimes allow this argument and sometimes they don’t.” He called the practice “an investigative tool” that is used “selectively in field interrogation situations.” He added that it is not departmental policy that every officer go out and take photos of suspicious characters.

Carleton, a legal adviser to the police department, said the practice is applicable in all cases investigated by police, not just those involving gang members. But it is the photographing of suspected gang members by police that has brought the practice into the open.

Greg Marshall, a local ACLU attorney, called the photo taking an invasion of privacy and in November sent a letter to Chief William Kolender asking him to put a stop to the practice. Kolender has yet to respond to the letter, Marshall said.

Constitutional experts are divided on the legality of the picture taking. Jesse Choper, dean of the University of California, Berkeley, law school, said that the right to privacy “is a matter of substantial ambiguity.” Choper said that the legality of the picture taking hinges on whether police have probable cause to stop the suspect in the first place.

“If the police have probable cause to believe that someone has committed a crime, they can arrest or photograph that person. But if there is no probable cause, I think you have a pretty strong argument that you can’t photograph, and, (that it is) an invasion of privacy,” Choper said.

But Choper and several other constitutional experts interviewed noted that the U.S. Supreme Court has not ruled on the legality of photographing suspects who are not charged with a crime.

Carleton said that until the court rules otherwise, he has advised the department that the practice is legal, as long as officers think that an individual was involved in a crime. But in the case of the controversial memo, where police are asked simply “to obtain a photograph” of suspected gang members, UCLA law professor Steven Schiffrin said the practice is deficient on constitutional grounds.

“It’s not enough that police produce a list of people they want photographed. They have to have reasonable suspicion to stop and photograph them,” Schiffrin said.

Police are aware of the law, and act only when they have reasonable suspicion or probable cause, Carleton said. “If you have sufficient cause to suspect criminal activity, you have a right to detain a suspect. And when identification is critical, it is certainly appropriate to take a quick photo of a person . . . Such a photo is lawful if the officer believes it relates to possible criminal activity and identification is an issue,” Carleton said.

Carleton and Wayne LaFave, a University of Illinois law professor and nationally recognized expert on constitutional law, argue that taking a photograph of a suspect is less intrusive of his privacy than taking fingerprints. Both point out that the U.S. Supreme Court ruled recently that an officer has a right to take a suspect’s fingerprints during a detention that does not necessarily lead to an arrest.

Carleton said that a private citizen “can walk up to anyone and take a picture of his or her face” without violating a person’s privacy. LaFave agreed.

“I’m not sure why someone would think he has a right to keep his physical appearance--his face--private. An officer could come in and dictate a sketch of a person he stopped. All this is permissible if the stop was proper to begin with. Taking a photograph under those circumstances seems to me a very natural thing to do,” LaFave said.

However, Schiffrin noted that while some legal scholars may interpret the U.S. Constitution as giving police the conditional right to photograph suspects, the California Constitution contains stronger right-to-privacy provisions that prohibit the practice.

“Whatever standard might come out of the (U.S. Supreme Court) when this issue is brought before it . . . Whatever the standard that it lays down under Fourth Amendment law, the citizenry enjoys greater protection under the state Constitution,” Schiffrin said. “The state Constitution is often interpreted in a manner that gives greater protection to citizens in terms of privacy and individual rights.”

Alex Aleinikoff a law professor at the University of Michigan, also disagreed with Carleton and LaFave and said their arguments suggest that “you waive your Fourth Amendment rights if you choose to hang out on the street.”

“This is a very troubling practice. Do the people who are stopped realize they have a right to refuse to be photographed? . . . The police can approach them and ask them to identify themselves. But they are free not to talk and walk away unless the police have probable cause to detain them,” Aleinikoff said.

Aleinikoff also said that the incident in the Vietnamese cafe, where the patrons were locked in by police and photographed but no arrests were made, is open to serious constitutional challenges. “It’s outrageous. It’s an illegal detention unless they had reasonable suspicion to believe these people were involved in something illegal,” Aleinikoff said.

Choper agreed. “The issue is very much influenced by whether they have probable cause to believe a crime was committed. However, if you can’t arrest them, then you can’t take their picture either, I would think. I think there’s a pretty good point being made here by defense attorneys,” Choper said.