On back-to-back days, two men were arrested on the same isolated section of sidewalk on the corner of the entrance to Shell's oil refinery in Deer Park. Both men came to the scene wielding video cameras, and both refused to identify themselves when off-duty Harris County Sheriff's deputies approached them to investigate what a Sheriff's spokesman later called "a very real terroristic threat."
The two men, Earl David Worden and Phillip Turner, are part of Photography Is Not A Crime, a national organization that intends to test the limits of the legal right to photograph places. According to Harris County Sheriff's Office spokesman Ryan Sullivan, those guys are right: photography is definitely not a crime, and that's not what they were arrested for.
"This group is a national organization that is known colloquially as police baiters," Sullivan said in a phone interview. "They go out and try to incite some sort of interaction. It’s your lawful right to photograph and videotape. It extends into a more threatening and dangerous situation when the actions you're taking to incite that interaction takes place in a security district as a very real terroristic threat. It's your right to videotape, but if you're going to do that you should do so lawfully and comply with the orders of officers that are investigating something that could be very hazardous to public safety."
According to Sullivan, Worden was spotted on security camera footage on Monday "wandering the property line, highly camouflaged, wearing a jacket in 75 degree weather, videotaping the operations of a major refinery in the Houston Ship Channel," prompting law enforcement officials to investigate. When they arrived, Worden refused to identify himself and was taken into custody. He was charged with "interfering with the duties of a public servant."
"If we observe a heavily camouflaged person wearing a jacket that absconds them from view while videotaping a refinery complex that as a target could provide a catastrophic attack to the Houston area, it’s our duty and obligation to respond and investigate," Sullivan said. "And if you're the person we’re investigating, my recommendation is to comply with all of the commands that the law enforcement officer is making."
OK, let's review. Run around an oil refinery with a videocamera and a camo jacket, then refuse to tell anyone who you are or what you're doing? Could be a terrorist, so you're going to be arrested. That actually sounds reasonable— now file that helpful information away for later.
After Worden was arrested, he called Turner from jail later that night, prompting Turner to drive in from Austin to try to find out what happened to his friend by following in his footsteps, according to Turner's YouTube channel. Unsurprisingly, Turner also ended up in jail, but not before his camera caught an odd encounter in which neither party — law enforcement nor Turner — really seemed to know what was legal and what was not.
Turner recorded the incident in its entirety and posted the nearly 30 minute video on YouTube. For the first 15 minutes or so, Turner videotapes from a sidewalk across the street from Shell. No one bothers him until around the 19 minute mark, when he makes the fateful decision to cross the street and stand on a disconnected section of sidewalk on the corner of Shell's entrance, which he said was where Worden was arrested. If Turner truly did want to photograph the Shell station, he could have done so just fine from across the street, although his videography skills need some work — the camera was somehow flipped upside down for about 10 minutes of the early footage, and it was poorly framed throughout. (Photography is not a crime, but if it's this bad then maybe it should be.)
“I see security down there," Turner narrated as he made his way across the road. "I’m going to cross the street. If you want results, sometimes you have to go get it.”
It is unclear what Turner meant by "results," but if he intended to get arrested, then he quickly got what he was looking for.
As soon as Turner crossed the street, a Deer Park Police officer drove over and approached him. The officer did not arrest him or threaten him with arrest, but she did ask him a few reasonable questions (like, what's he doing standing on an incomplete chunk of pavement alongside a freeway service road). Turner told her he was a journalist working on a story about filming in public, and he also declined to tell the officer his name when she asked.
The officer politely told Turner that she was concerned for his safety, and that she just wanted to check things out to make sure he wasn't going to cross the street into traffic. She advised Turner that he was on Shell's property, and that if Shell's security came out and requested that he leave, he would have to do so. Then she left.
A few other patrol cars immediately pulled up as Turner defiantly clung to his decrepit patch of sidewalk.
“I'm just gonna continue with my story,” Turner narrates. “It shouldn't be an issue just to sit out here and take pictures of the Shell station to begin with. It's not a big deal. You can find these images on Google Maps, and anybody can access Google."
A Harris County Sheriff's deputy approached Turner next and asked him some of the same questions as the Deer Park officer: "What are you doing here," and "Can I see your ID?" Turner again explained he was a journalist working on a story, and again declined to give his ID, rattling off the section of Texas Penal Code that refers to requirements to provide identification. He asserted his right to remain on the section of sidewalk a few feet away from the chainlink fence, which to an untrained eye would appear to be the boundary of Shell's property. According to the deputy, however, Shell's property extended further, though he admitted on camera that he did not know for sure how far.
"I need to see your ID, please," the officer said repeatedly.
Turner asked, clearly, if he was being detained or under arrest.
"I didn't say that, I just asked for your ID," the officer responded. Later, he says, “under state law, you should identify yourself to a police officer when you're asked." Then he guides Turner up against the chainlink fence nearby, handcuffs him, frisks him, and again asks for Turner's ID, which he again refuses.
Based on the language in the Texas Penal code, it appears as though Turner was in the right here when he initially declined to provide his ID prior to arrest:
Sec. 38.02. FAILURE TO IDENTIFY. (a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.
From that, it seems like Turner could not have been arrested solely as a result of his refusal to give identification. But Sullivan provided a much broader definition of that section of code than perhaps most readers would conclude.
"It is a crime in Texas to fail to give identification under a lawful arrest, detention, or if you are suspected of being a witness to a crime," Sullivan said in an interview. "If there’s an investigation and the officer is questioning you, you’re being detained. And after being handcuffed you're definitely being detained. The officer is conducting his investigation when he is approaching the suspect and asking questions— that’s the course of the investigation."
So according to Sullivan, if an officer asks you for your ID, you always have to fork it over, because the simple act of asking a question is equal to detention and an investigation. Still, Turner's charging documents don’t mention "failure to identify," so if that was the reasoning for his arrest then the district attorney's office must have decided the charge would not have stuck in court. Instead, Turner was charged with trespassing on private property owned by “Timothy Hill,” who, according to his online LinkedIn profile, is the Senior Security Specialist at Shell's Deer Park facility.
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And the officer who arrested Turner wasn't actually working as a Harris County Sheriff's deputy at the time of the incident. Instead, he was working an "approved extra job" at the refinery, according to a press release from the sheriff's office.
Sullivan explained that the deputy was working for the Houston Ship Channel Security District, which according to its website is a "political subdivision of the state of Texas," governed by a board of directors nominated and employed by private industry facilities located within the boundaries of the district. Still, Sullivan said Shell has its own private security and that the officer was not employed by Shell. But according to the security district's website, the Deer Park Shell facility's security manager sits on the district's board of directors.
So the officer wasn't working private security for the Shell refinery, he was just working for a political subdivision which has the Shell refinery's security manager sitting on its governing board. OK. Glad that's cleared up.
Despite the fact that this entire altercation was caught on video, it's still unclear what really happened here. Were these jokers thrown in jail because they stupidly incited an arrest by disobeying a simple order backed by a somewhat vague law, or because law enforcement officers truly believed these guys were a terroristic threat, or maybe for stepping on the toes of a mega rich oil company that clearly wasn't ready for its close-up? Who knows. While photography itself is not a crime, it's apparently something that can indirectly lead to your arrest if you do it around the wrong people and in the wrong places.