(The following article by Virginia Groark was posted on the Chicago Tribune website on January 19.)
CHICAGO — With a tripod in one man’s hand and cameras slung around the other’s neck, two Homewood men arrived at a Metra station in Morton Grove earlier this month to take pictures of a mothballed locomotive that had been called back into service.
But before Paul Burgess and Randy Olson could snap a picture, Morton Grove police detained them and searched Burgess’ car, with his consent. Soon, Metra police arrived, and the two were held as their backgrounds were checked.
The Jan. 8 incident is the latest in a series of mix-ups with police who, rail fans say, may be trying to protect railroad security in a way that threatens their 1st Amendment rights.
“The general consensus is it’s easier for a rail fan to take pictures in China than it is here,” said Bill Molony, president of a National Railway Historical Society’s Blackhawk Chapter, whose members mostly live in the south and southwest Chicago suburbs.
Metra spokeswoman Judy Pardonnet said people are allowed to stand in public areas and photograph trains. But she said the agency reserves the right to stop people and ask for identification and their intentions.
“Our policy generally is that if someone is taking photographs we will go and inquire as to what their intentions are and ask them for some identification,” Pardonnet said, adding each case is different. “We are not trying to limit their civil liberties. We are trying to make sure they are safe.”
Although Burgess and Olson said Metra police told them they could not photograph trains even from a public sidewalk, Pardonnet said the officers misspoke. Metra’s police chief has been clarifying the policy with agency officers and local police, she said.
Likewise, the Chicago Transit Authority allows people to take pictures unless CTA personnel feel the activity is “disruptive or questionable,” said Robyn Ziegler, an agency spokeswoman.
Security has been a particular concern since the Sept. 11,2001 terrorist attacks and last year’s commuter train bombings in Madrid that killed nearly 200 people and wounded more than 1,400.
Although the Transportation Security Administration will not release details about security directives it issues to law enforcement agencies, no memo has specifically mentioned photographing trains, said Amy von Walter, a TSA spokeswoman.
Still, law enforcement authorities, such as Morton Grove Police Cmdr. Mark Erickson, said federal officials have advised them to be on the lookout for unusual activities at transportation centers or on transit systems.
In general, people have the right to express themselves, under the 1st Amendment, and may take pictures in a public space where others don’t have an expectation of privacy. But security issues can limit what people may photograph, such as a defense facility, said Ed Yohnka, a spokesman for the American Civil Liberties Union.
“It’s not an absolute,” he said.
But he added, “I don’t know of any federal law that makes it a crime to photograph any train, that covers that in such a blanket way as these officers who approached [Burgess] seem to have suggested.”
If the New York City Transit branch of the Metropolitan Transportation Authority has its way, that could become the case in New York City subway stations.
The NYC Transit wants to place a general ban on photography and videotaping on its system except for media with valid credentials and people with MTA authorization.
Public comment on that controversial proposal closed last week, and the authority’s board will not take up the issue until at least March, said Paul Fleuranges, the NYC Transit’s vice president for corporate communications.
Some question whether the transit agencies are alienating the very people with whom they should be cultivating friendships: those who not only love railroads but know enough about them to spot something that is out of place or suspicious.
“What’s really sad about it is that the rail companies’ concerns are centered on terrorism and they have thousands of miles of unguarded facilities,” said Bert Krages, an Oregon lawyer who has written legal guidelines for photographers that appear on the National Railway Historical Society’s Web site.
Naperville resident Tom Mitoraj, another longtime train photographer who said he has been stopped more frequently in recent weeks, agreed.
“These are the people who want these railroads to be safe and successful,” said Mitoraj, who said Metra police threatened to confiscate his film and camera and have him arrested last November when he was taking pictures from a platform in Blue Island. “In a sense they are another set of eyes and ears, and it does seem that Metra seems to be turning away the people that are most interested in seeing it be successful, which really seems to be counterproductive.”
For New Year’s Eve, Brian Martin of Oxford, Wis., decided to take his family on a day trip to Chicago to photograph trains.
But private security police in Ogilvie Transportation Center in Chicago stopped them from posing in front of trains there, saying they would arrest them or confiscate their film if they continued, Martin said.
“I just couldn’t believe it,” he said. “We’ve never had anything like that happen. It was quite a shock for us. We felt kind of intimidated.
“We kind of lost part of our trip,” he added.
Metra officials and other law enforcement authorities said it can be difficult to determine who is a rail fan and who is looking to harm others.
Olson, 55, and Burgess, 43, said they understand the security concerns but believe it was obvious they were not terrorists. A potentially bigger threat, they said, were backpack-toting passengers waiting to board the train.
“You don’t need to take a picture of the tracks to know where the strategic locations are,” Olson said. “And you wouldn’t be doing it in broad daylight. It’s just ludicrous. You have to be able to discern what’s a threat and what isn’t.”
Morton Grove police since have apologized, but Burgess has not heard back from Metra’s board, to whom he wrote a letter asking for an apology. Regardless, he intends to continue photographing trains.
“I’ve been doing this for 30 years,” Burgess said. “And as I said in my letter, I’m a U.S. Navy veteran and I don’t intend to allow this to change my habits.”