It's been more than five months since Barking Dog Avi Adelman, formerly of Lower Greenville, currently of what we'll refer to as Greater Junius Heights, raced to the Santa Fe Trail to take pictures of a cop who collapsed. The cop revived, spent a couple of weeks in the hospital, and was released. The earth has completed nearly half a circuit around the sun. Spring turned into summer, which is now less than two weeks from giving way — on the calendar, at least — to fall.
But while the rest of the world has moved on, Adelman has not. He is still flogging the incident as evidence that DPD officers still don't have a solid grasp of the public's right to photograph police, notwithstanding its new public-photography rules. One might be inclined to ignore Adelman's complaints and cut the cops some slack for being a bit touchy about some guy with a camera snapping pictures of their comrade, but this would be a mistake because a) the fight highlights several unresolved issues, including tension between enumerated rights, particularly vis a vis citizen photography, and how much additional transparency those new police body cameras will provide; and b) watching footage of Adelman self-righteously bickering with equally self-righteous cops is premium entertainment.
First, to set the scene. It's late March and Senior Corporal Jimmy Thongrivong and his partner are biking down the Santa Fe trail en route to a call when Thongrivong suffers a heart attack and collapses on the pavement. Adelman, at his house a couple of blocks away, is listening to a police scanner when he hears an urgent call for an ambulance. Adelman shows up to find a throng of first responders clustered around Thongrivong. Adelman begins to snap pictures, maneuvering around the perimeter to get a better angle. A passerby who stopped to administer CPR, described Adelman to The Dallas Morning News as "loud and pushy" and said paramedics had a hard time hearing over Adelman's shouts. Dallas Police Association President Ron Pinkston took to Facebook to sarcastically praise Adelman for "never let[ting] the greed of getting the 'money shot' interfere with these brothers and sisters trying to save a family member."
Adelman, for all his trollishness, is not out to provoke cops with "First Amendment audits," à la Brett Sanders. He legitimately wants to take pictures, sometimes to sell, sometimes to post on his website, mostly just because he enjoys chasing ambulances. Left alone, he will unobtrusively take his pictures and leave. What transforms mild-mannered photographer Avi into Barking Dog Avi is anything he perceives as an attempt to unreasonably impede his photography, whether through establishing a needlessly expansive perimeter, keeping him further away from the scene than other, non-camera-wielding passersby, or by shining a flashlight at/purposefully blocking his camera. And once he turns into Barking Dog Avi, Adelman doesn't shut up.
The DMN story didn't mention it, but Adelman wasn't the only one acting thin-skinned and dickish on the Santa Fe Trail that day. Let's roll the tape from one of the responding officer's dash-cam videos, in which you can hear — though you can't see — Adelman's encounter with a cop he dubbed Officer Rugby. Adelman has transcribed the encounter here. We've excerpted a representative portion below.
Rugby: What kind of individual are you?
Avi: I am a photographer and you are a cop. You need to be a cop. Are you trying to (unintelligible) with me?
Rugby: (mutters to himself) Piece of crap individuals in the world.
Avi: Are you crazy?
Rugby: Minding my own business, sir. I can move like I wanna move. It’s a free country. You take your pictures. I am gonna move my own body.
Rugby: (to himself) Piece of crap.
Rugby to Avi: Get on the street, dude.
Avi: Stop chasing me
Lots of background noise. Rugby is standing by officer being treated, talking to another officer.
Rugby to Officer #2: This fool is trying to take pictures of one of our guys. That’s vicious. Piece of crap here, man.
Background radio — officer is going to Baylor. Lots of silence as officers leave the area. Another ambulance leaves, Avi starts to go back to his truck.
Avi: Then why don’t you get away from me??
Rugby: I can stay right here.
Avi: Then you can hear me call a sergeant.
Rugby: Go ahead and call, go ahead and call.
Avi: You are are insult to ….
Rugby: Where you going, man?
Avi: I’m done – what’s your problem?
Rugby: I am just going for a walk — it’s a free country. Just going for a walk.
Avi: What are you going to do to me, harass me??
Rugby: I am just going for a walk. It’s a free country, I can walk.
Avi: Knock yourself out.
Rugby: What you worried about me, I need the exercise??
Avi leaves area, Rugby goes back to other officers. Long space of silence.
Rugby: (to other officers) Is there anybody you just want to punch the crap out of?? I wish he had gave me any reason to put him in jail.
Thus, Rugby joins a long line of people in East Dallas who want to punch the crap out of Avi Adelman. (The roster of those who have said as much on a hot mic is much shorter.) But Adelman wasn't content with a snippet of audio. He'd noticed that one of the officers on the Santa Fe Trail was wearing one of the body cameras DPD was testing out at the time and requested whatever footage it captured. His request was dated April 13.
In many ways, body cams are still a novelty. Police are still figuring out where and how to deploy them and how to handle all the footage they will produce. And everyone is waiting to see how large-scale implementation will affect law enforcement-citizen interactions. At the same time, the footage produced by body cams isn't materially different, legally speaking, from a dash-cam or interrogation video. That is, with certain restrictions to protect ongoing investigations and civilians' privacy, it is unquestionably subject to public inspection under state open-records laws.
DPD and the city attorney's office, however, have had a hard time coming to grips with this lack of legal nuance. Whether because of innocent bureaucratic bungling or because of an animus specifically directed at Adelman, they stonewalled for four months, first telling him that his request would take 30 days to process, then telling him after a bit more than a month that they meant 30 business days, then, on June 18, provided him with five DVDs. Adelman realized upon viewing the DVDs that DPD had given him dash-cam footage from several squad cars but had not provided the body-cam footage he'd specifically requested. Adelman repeatedly inquired about the whereabouts of the body-cam footage until June 29, when he received a a copy of a letter, dated June 9, from Assistant City Attorney Josi Diaz to Attorney General Ken Paxton. In the letter, Diaz asks Paxton's office to allow DPD to withhold the body-cam footage on the grounds that it is a confidential record documenting emergency medical treatment and that releasing it would be an invasion of Thongrivong's privacy.
Diaz's argument was weakened by several factors that were laid out in the response letter from Paxton's office, which was delivered to both Adelman and City Hall late last month. The exemption for EMS records applies only to those "that are created by the emergency medical services personnel or physician or maintained by an emergency medical services provider," which doesn't apply to a video recording from a cop who happens to be on the scene. As for the privacy question, Paxton's office wrote that "the department has failed to demonstrate how any of the submitted information is highly intimate or embarrassing and not of legitimate concern to the public."
That's to say nothing of the procedural screw-ups. State open-records law requires that governments seeking to withhold documents must request an AG's opinion within 10 business days and submit the documents in question, and reasons why they should be withheld, for review within 15 days. It took the city attorney's office in Adelman's case about two months. When the city did finally get around to requesting an AG's decision, it submitted for review a dash-cam video and not the body-cam footage, which might have seemed like an honest mistake had they not already been stonewalling for two months.
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And so we come to the body-cam tapes, which provide the most comprehensive view yet of officers' interactions with Adelman on the Santa Fe Trail. The full video can be found here, but Adelman edited it down to a more watchable highlight reel:
Legally, Adelman's almost certainly in the right, as the cops are clearly trying to prevent him from exercising his First Amendment right to take pictures on the grounds that they don't like what he's photographing. On the other hand, it's hard to judge the officers too harshly, given that they clearly perceive Adelman as someone who is exploiting their colleague's suffering, if not to make money (Adelman says he didn't sell the photos) then to take some First Amendment stand. The one party involved in the debate that can stake no claim to legal or moral high-ground is the city attorney's office, which needs to stop playing games with open records requests.