Aaron Kraut/The Gazette Mannie Garcia shows where he was June 16 on Hickerson Drive in Wheaton, where he was arrested for disorderly conduct after filming Montgomery County Police arrest two men.

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Mannie Garcia says he was within his rights when he filmed Montgomery County police officers arrest two men last summer in Wheaton.

The Kensington photojournalist, who has covered the White House, Congress, wars in Eastern Europe and genocide in Africa, was walking out of the Woomi Restaurant on Hickerson Drive on June 16 when he noticed three officers arresting the men across the street. He took out a new camera he had been showing off to a friend at dinner and started recording.

Garcia said he identified himself as a member of the press, but during the next few minutes, an officer grabbed him by the neck, dragged him to a police cruiser and handcuffed him before taking the recording chip out of his camera. He was charged with disorderly conduct — a charge a district court judge threw out in December.

Garcia, 58, said he is strongly considering a civil rights lawsuit, absent resolution of an Internal Affairs Department investigation he requested shortly after the incident.

“Everyone in this country has the same right to document public officials in the performance of their duty, as long as it's not interfering with them,” Garcia said. “Everyone has a right, and people need to know that it's OK to stand on public property and pick up your phone and record the police activity that's happening across the street.”

His is one of a number of Maryland cases involving the right to record police officers.

The U.S. Department of Justice’s Civil Rights Division last week urged a federal court to side with a Howard County man in a lawsuit about his cell phone being seized by Baltimore police after he filmed officers making an arrest. Federal attorneys wrote in a “statement of interest” that recording police officers performing their duties is protected by the Constitution, promotes accountability and instills public confidence.

David Rocah, a staff attorney with the American Civil Liberties Union of Maryland, said the organization thinks it was the first time the Department of Justice weighed in on the issue. The ACLU of Maryland is representing the plaintiff in the lawsuit and has no involvement in the Garcia case.

“If the police falsely accused [Garcia] of being disorderly as a way of punishing him or stopping him from recording them, that’s flagrant as well,” Rocah said. “Independent of the First Amendment issues, there are no state laws that prohibit any of those things. There’s no law that prohibits photographing a police officer; no law that prohibits videotaping a police officer. It is crystal clear that the state wiretap law does not prohibit audio taping. There is absolutely no basis for the police to tell you you can’t do it.”

Capt. Christina Faass, director of the Montgomery County Police Department’s Internal Affairs Division, said Garcia’s formal complaint still is under investigation and the investigation was delayed because of several postponements to the criminal trial.

In the police report, Officer C.P. Malouf wrote he was assisting other officers with an alcohol complaint next to Jose’s Grill. Officer Kevin Baxter made him aware that Garcia was filming the incident and he was unsure if Garcia “was doing anything other than filming because he was standing in the shadows behind a sign.”

Malouf wrote he approached Garcia, who immediately became disorderly and began yelling. Malouf then put Garcia under arrest. Garcia then threw himself to the ground and then against the police cruiser, attempting to injure himself.

Garcia denied that account and said the officers’ testimony during his trial didn’t match up. He has yet to recover the recording chip he observed Malouf take from his camera upon arriving at the 4th District Police Station on Randolph Road.

Miami-based attorney Warren Zinn, part of Garcia’s four-man legal team, worked as a photojournalist with Garcia.

“The fact that Mannie can stand on that street corner and take that photograph is what separates us from every other country in the world,” Zinn said. “The police know they can throw out disorderly conduct. They may or may not win the case later on, but their whole goal was to get rid of Mannie.”

Rockville-based attorney David Merkin sent a letter to the County Executive’s office in November, notifying the county of Garcia’s intention to make a claim.

Garcia, who in October could not renew his White House photo credential because of the pending charges, said he’s frustrated by the lack of a response from police.

“What happened to me should not happen to any person in any county in any state by any police group anywhere in the United States,” Garcia said. “What was done to me was wrong, plain and simple.”

akraut@gazette.net