POCATELLO, Idaho (KIFI/KIDK) - A Chubbuck man claims the Pocatello Police Department violated his First Amendment rights when officers arrested him while recording video from outside the FBI office.
“I stopped directly across the street and filmed vehicles entering the FBI complex for approximately 10 minutes before a police car drove up behind me,” Sean Johnson wrote to KIFI/KIDK reporter Chris Oswalt in an email. “I was standing on the sidewalk across the street from the complex, near a bus stop. I was just standing there filming, not saying anything to anyone, nor waving my arms around or otherwise causing a commotion.”
The video recorded in June, which is posted on YouTube, has just over 1,800 views. Johnson said he posted the video to raise awareness of “local police force's attitude and knowledge towards First Amendment activity.”
In the video, which starts with Johnson zooming in on the license plate of a vehicle pulling into a secured parking lot, an exchange can be heard between a Pocatello officer and Johnson begin about 27 seconds into the video.
“Everything alright?” the officer asked. Johnson does not acknowledge the officer until the unidentified officer tells Johnson he “got a call” that Johnson “was recording the FBI building.”
“That's correct, I am,” Johnson can be heard saying in the video.
During the nearly six-minute video, the officer continually explained to Johnson that he was conducting a criminal investigation into Johnson's recording.
"Right now I am conducting a criminal investigation,” the officer is heard saying. “We got a report that you were recording the FBI building. So I need to see your identification"
"What crime?" Johnson replied. “Public voyeurism,” the officer answered.
Idaho code does not have a public voyeurism law. There is, however, a video voyeurism code. It is listed under “Chapter 66: Sex Crimes.” Much of the code is targeted at sex crimes and sexual exploitation of another person. It does not address filming from a public right way, which is a protected federal right.
“Did you get their permission to record?” the officer asks Johnson in the video.
“Do I need their permission?” Johnson asks in a reply. “Absolutely,” the officer is heard saying. “It is called public voyeurism,” he continues.
The officer continually uses public voyeurism as grounds for his conversation with Johnson, telling him he needs permission to record a federal building and employees.
A three-page memo to all federal employees and law enforcement from August 2010 says otherwise. In the memo, it clearly reads “remember the public has the right to photograph the exterior of Federal Buildings from publicly accessible spaces, such as streets, sidewalks, parks or plazas.”
The memo goes onto say the recording of federal buildings cannot impede on law enforcement operations. Johnson is charged with resisting or obstructing officers.
Throughout the six-minute video, officers can be heard repeatedly asking Johnson for his ID. Each time, he provides little information until officers place him under arrest, explaining their reasoning.
"I gave you plenty of opportunities to provide identification,” the officer is heard. “You didn't identify yourself. I'm conducting an investigation for unlawful reason of you providing identification. So tell me who you are. Sean Johnson? That's a pretty common name."
“I was taken to jail and held for 15 hours until I paid my bail of $300 directly from my own account,” Johnson wrote in his email. “I have since retained an attorney and the expectation is that the charge of 'obstruction and delay' will be dropped by the prosecutor.”
The Pocatello Police Department said it is aware of the “YouTube video concerning filming of the FBI facility. The department is looking into the matter."
Hundreds of comments have flooded the police department's Facebook page starting the night of Saturday, July 23. Following several comments regarding the video and arrest, a spokesperson said the police department's Facebook page was taken down by an employee, but could not elaborate on why.”
“That will be determined this week,” city spokesperson Logan McDonnell said in a phone call with Oswalt.
The Facebook page has since been restored.
Johnson says he is considering legal action against the city.
"I am definitely considering it, but since my pretrial conference has not even happened yet I think it's a bit early yet," Johnson wrote. "The conference had been rescheduled to 8/10 due to a delay of the city providing materials as part of the discovery process."
Pocatello Police were criticized by the public earlier this month when a video surfaced showing an officer appearing to be sleeping on the job. The department said it was investigating that video back on July 1. Today, the department says the officer is still employed.
“As it is a personnel issue, we cannot comment further," a statement said.