Obscure D.C. regulations could target photographers

Kirsten Berg | Newsgathering | Feature | November 2, 2011

A warning to the Washington, D.C., photographer: don’t dawdle. If you linger for more than five minutes to take a photograph in a public place, you could be arrested under an obscure D.C. regulation.

To be fair, this law and similar ones pertaining to photographers have been around for decades with little attention or enforcement. But they drew laughs -- and serious criticism -- last week when a Washington Post blog listed them as one of 160 minor infractions that, according to a Metropolitan Police Department policy manual, can be considered arrestable or citation-worthy offenses.

The misdemeanors uncovered by the blog range from the everyday, such as posting signs or ads on street lamps, to the bizarre, such as failure to check an eel trap. But the list garnered attention because one of the offenses, driving a vehicle that is unregistered or has an expired registration, stirred controversy when the Post reported in October that thousands in the District have been arrested in recent years for expired tags.

Although most professional and amateur photographers were not the intended target of these municipal regulations, which were originally crafted to regulate street-vendor type cameramen who take photos of tourists and sell them for a fee, some worry that there is still potential for abuse.

Mickey H. Osterreicher, general counsel for the National Press Photographers Association, said that although he has not heard of anyone being subjected to the regulation, the language of the laws is vague enough to pose a threat of enforcement to a non-hawker photographer. The possibility alone was enough to provoke him to write a letter to the city's attorney general asking the city to repeal and revise the laws, he said.

“I understand that might not have been their intent, but the thing that concerns me is that photographers lately have been interfered with without statutes on the book, they are charged with disorderly conduct or interfering with arrest, even when mostly taking pictures in public is not a crime,” he said, adding that he would not be surprised, for example, to see police issuing tickets and arresting photographers for violating these regulations at an Occupy Wall Street-type demonstration.

"When you have a statute or regulation as vague as these, they are open to abuse and lack of discretion by law enforcement officers,” he said.

And the language could be a source of confusion for some: the police manual only lists the offenses as “Photographer- More than 5 minutes at a location" and "Photographer violations."

The rules seem to refer to the more specific D.C. Municipal Regulations for vendors and solicitors, which state that “street photographers” and those who “engage in the business of taking photographs of any person or persons upon the streets, sidewalks or other public spaces of the District of Columbia, for profit or for gain” have to be registered. Furthermore, these photographers are not allowed to “impede traffic” and the law continues “nor shall any photographer remain longer than five (5) minutes in any one (1) location on… public places.”

Osterreicher said that although many cities and organizations regulate commercial photography, they generally do so with narrower definitions and specific exemptions for the press. As the law stands now, he said, a journalist or freelancer making money for their photos could fit the definition of the regulations.

“Arbitrarily, for example, placing a five minute time limit on photographers is not tailored to satisfy a governmental objective,” he said. “It is arbitrary and capricious and we have a problem with that as most courts would. The regulations as written are facially unconstitutional.”

Helder Gil, a spokesperson for the Department of Consumer and Regulatory Affairs, said that only one or two street photographers are currently licensed and that it has been their policy to exempt journalists, bloggers, professional photographers who take pictures of buildings and scenery and wedding photographers.

Gil said he also is not aware of any enforcement taken against street photographers by his agency in recent memory, but that they are working to revise the entire chapter covering street vending regulations that he expects will be proposed by the end of the year.

Osterreicher said that he had only received a confirmation of receipt for the letter he sent asking for revisions from the D.C. attorney general, but that he hopes that his organization can work with the city to rework the definitions in the regulation.

However, he said, if the city stood by the current version, the NPPA would consider taking legal action to challenge them.

For now, said the Post's Mike DeBonis, photographers should not worry "so as long as you don’t make a living hustling tourists for snapshots, you can snap away without keeping an eye on your watch."