Rob Hurlbut, a San Diego photographer and creator of theworldisraw.com, captured video footage of trolley officers brutally taking down a man for smoking a cigarette at a trolley station. Hurlbut shot the video at 8:20 p.m. on Saturday, September 5, 2009, at the 12th and Imperial transit station.

Hurlbut’s video shows two officers restraining the smoker from behind while a third trolley officer attempts to gain control by sitting on the man’s head. You can hear the man pleading with him to stop because the officer is hurting his head scars, which he alleges he received from brain cancer treatment. The two officers behind the man are holding his arms, and he doesn’t appear to be struggling or posing any threat to the officers or nearby passengers.

Hurlbut’s video raises a couple of questions: Why did they decide to arrest the man for an offense that is citable? And why did the officers attempt to prevent Hurlbut from filming the incident?

Smoking is outlawed at all San Diego Metropolitan Transit System trolley stations and bus stops, and smokers can be fined up to $75 for their first offense, not including court costs and other fees. The agency’s transit police, a private firm called Heritage Security Services, enforces the ban.

“My only concern was with being hassled as a photographer,” said Hurlbut. “It wasn’t until after posting the video [to my website] and comments began to show up, regarding the treatment of the arrested man, that I even considered the officers might be using excessive or unnecessary force.”

According to Hurlbut, the incident began when the man was walking through the station with a lit cigarette, toward the area where people generally smoke, away from the passenger waiting area. A trolley came through the station and cut off the man’s path. As he was waiting for the trolley to move, two trolley officers, employed by Heritage Security Services, approached the man and requested that he put out the cigarette. The man explained that he was just waiting to cross the tracks. The trolley officers said that didn’t matter and to put the cigarette out anyway.

“From there it instantly turned into what I would describe as cocky attitude from the smoker versus an inflexible attitude from the cops,” said Hurlbut. “The smoker didn’t want to put out the cigarette, and the cops didn’t want to grant him ten seconds to get to the smoking area. Less attitude from one or some flexibility from the other would have avoided the whole thing.”

The trolley officers then asked the man to turn around, and he asked why. One of the cops physically turned the man so his back was to the officers. The man then turned himself back toward the officers. It was at that moment that the trolley cops brought him down and when Hurlbut started filming.

Even though Hurlbut witnessed the entire incident, he is confused as to why it went that far. “Before being taken down, he did put his cigarette out. It seemed to me that because of the attitude he gave the trolley cops before he put it out, that [the trolley cops] didn’t want to let it go.”

Hurlbut claims the smoker was not yelling (until he was on the ground, anyway), threatening, or otherwise displaying an aggressive attitude.

“I would describe him as being cocky, arrogant, and somewhat perplexed by the whole situation. He was saying things like ‘Why are three cops around me for smoking?’ and ‘What are you gonna do?’ But he wasn’t raising his voice. He was as confused as I was.”

Hurlbut added, “I would actually draw a comparison from what happened to him to what happened to me in the last part of the video. The way the trolley cop was addressing me, and the questions I was asking him, were identical to what happened to the smoker. It was an ‘even though I might be wrong, why are you making such a big deal out of it?’ situation.”

At the video’s two-minute mark, a female officer looks at Hurlbut, and then says something to her colleagues. This causes three other trolley officers to turn around and look at Hurlbut. The female officer says something to the trolley officer who had been attempting to physically block Hurlbut from filming at the onset of the video — she points at Hurlbut and sends the officer over to him. This officer approaches Hurlbut and asks to see his pass.

The officer repeatedly tells Hurlbut, “We don’t want you taking pictures.” Hurlbut asks if he is in violation of any law. The officer never says Hurlbut is in violation of the law but continues to state, “We don’t want you taking pictures.”

The officer also warns Hurlbut that taking pictures is “against our rights.” He cuts himself short after starting a sentence with “You can’t —”

“I took this then, and now, to believe that the trolley police are fully aware that photography is legal,” states Hurlbut. “So they resist saying ‘You can’t take pictures’ and cover themselves legally by replacing it with ‘We don’t want you taking pictures.’ ”

In attorney Bert Krages’s Legal Handbook for Photographers, he states that the general rule in the United States is “anyone may take photographs of whatever they want when they are in a public place or places where they have permission to take photographs.” Photos cannot be taken on someone’s private property without their permission or of members of the public who have secluded themselves in places where they have a reasonable expectation of privacy (such as dressing rooms, medical facilities, and inside their homes).

Although Hurlbut wasn’t breaking the law, he stopped filming for fear the officers might confiscate his camera.

“I already had what I felt was some great footage. If I was arrested for continuing to film them, they would have been able to remove the memory card from my camera, and I would be left with nothing. I was not afraid of being arrested, I was afraid of having my footage confiscated or destroyed.”

About five minutes after Hurlbut ceased filming, a trolley cop approached Hurlbut and asked to see his pass. The officer took Hurlbut’s pass, and while examining the pass, asked Hurlbut where he was headed. When Hurlbut answered he was headed to La Mesa on the orange line, the officer told him to wait over by the trolley. As Hurlbut walked over to the track the officer had indicated, the officer told another officer nearby to make sure Hurlbut got on the next trolley.

“The track he wanted me to wait by is farther away from their SUV and the trolley cops’ activities in general,” said Hurlbut. “I interpreted the exchange to mean that something would happen if I wasn’t on the next trolley. I took his meaning to be that they wanted me to clear out of the station. I caught the 8:34 p.m. trolley.”

In response to recent assaults against transit security officers, the 10News I-Team began an investigation into Heritage’s practices in July of last year. According to a contract they obtained, the Metropolitan Transit System’s contract for security with Heritage is for five years with a maximum payout of $25 million, beginning in 2006.

While unarmed officers earn an hourly wage ranging from $7.50 to $10.76/hour, armed officers make from $10.50 to $12.73/hour. Armed supervisors earn between $13.40 and $23.48. Armed lieutenants can bring in up to $25.23, while captains can earn as much as $32.34 per hour.

Several trolley officers spoke to 10News under the condition of anonymity and claimed Heritage did not provide proper training for its employees. Two officers who spoke to 10News’ Mitch Blacher said officers who carry guns are not trained to handle critical situations.

“It’s dangerous for the officers and, to some extent, the public,” one former officer stated.

State regulations require all security guards to have a minimum 40 hours of training. Ken Moller, president of Heritage Security Services, said their transit officers receive 164 hours of training, and those carrying weapons must be requalified every quarter.

Following the incident, Hurlbut emailed Heritage Security Services a link to the video, asking for a comment, but he never heard back. Ken Moller ([email protected]), president of Heritage Security Services, also ignored several requests to obtain a comment for this story.

NBC 7/39 News interviewed Hurlbut on September 18, 2009, about the incident and did a brief segment that same night on their 11:00 p.m. newscast. Moller did comment for NBC, stating, “We have no right to tell people they can’t shoot down there. My officers were wrong in telling him that. And I put that word out as soon as I saw the video. It’s a public place, and people can certainly shoot video down there if they want to.”

Moller did not mention the excessive force used against the smoker.

Hurlbut also emailed MTS and received the following reply from Belinda Fragger ([email protected]): “Thank you for bringing this matter to our attention. Your email has been forwarded to MTS Trolley for handling. MTS case #41411.”

Hurlbut never heard back from Fragger or MTS.

San Diego Reader’s request to view the incident report from that evening was denied by Tiffany Lorenzen, general counsel for Metropolitan Transit System, based on the California Public Records Act, which exempts documents from disclosure that are either: (1) records pertaining to current litigation to which the public agency is a party; or (2) records of complaints to, or investigations conducted by the Office of the Attorney General and the Department of Justice, and any state, or local police agency.

Lorenzen did not confirm MTS’s reason for refusing to disclose the incident report.

Now that the video has been seen and questioned, Hurlbut hopes some answers follow.

“Heritage Security and MTS need to have transparency regarding the rights of commuters. It should be as easy for the public to address and fix problems they have with trolley guards. We, as the general public, have the right to know what exactly their job is and what they are and are not permitted to do.”

You can view both videos (the one Hurlbut shot and the NBC 7/39 segment) at the following address: theworldisraw.com/illegal-photography/.
— Kathryn Snyder