On July 28, photographer Scott Shimek, 40, started taking video of a police investigation near his Burien apartment. A short time later, Shimek landed in jail.
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Five months after his arrest, Shimek now faces charges for both obstruction and resisting—charges, he says, that he never deserved in the first place.
A video of the incident, which occurred in the early evening, shows Shimek approaching King County sergeant John Hall with a camera in hand. (At the time, Shimek didn't know that county police were investigating a domestic violence call and had a K-9 unit sniffing the suspect's trail.) Next, Sergeant Hall tells Shimek about the dog and instructs him to leave; Shimek tells Hall he's walking away and starts to head in that direction.
At this point, accounts diverge.
According to the King County Sheriff's Office police report, Sergeant Hall became afraid for Shimek because of the dog. He yelled at him to turn around and walk away, but Shimek refused. Shimek says he already was walking away, and it was his camera that caused his arrest.
"I put my camera on my shoulder to film behind me, and that set [the officers] off," Shimek says. "It set them off that I was recording. The whole arrest was absolutely about recording."
The police report tells a different story. "It was obvious to me that Shimek was not going to leave the area," the report reads. It describes Shimek shuffling backwards and stopping momentarily to film what was going on.
Sergeant Hall arrested Shimek for obstruction that night. Shimek says Hall pulled out his Taser—but didn't use it—and tried throwing his camera, but couldn’t as it was tethered to his wrist.
"All of our patrol people carry Tasers," Sergeant DB Gates, King County Sheriff's Office spokesperson, said in an e-mail. "I don’t know if Sgt. Hall had pulled his Taser."
That December—more than three months after the incident—Shimek found out that on top of being charged with obstruction, he was being charged with resisting his arrest, too. It was only when Shimek started asking for the contents of his memory card back (which had footage of the arrest on it, and had been seized as evidence) that he learned about the second charge.
As Shimek describes it, after his July 28 arrest, "Months pass, and I hear nothing from the sheriff’s department. No paperwork, no court dates, anything." So Shimek and friends from the blog Photography Is Not a Crime started a phone-calling campaign to try and get Shimek's memory card back from the evidence room. Then, in late November, Shimek also sent an e-mail to the King County Sheriff's Office asking about Sergeant Hall's record and whether the Taser had been an appropriate use of force.
Court documents show that Burien prosecutor Renée Walls filed the twin charges of obstructing and resisting on December 9, five months after Shimek had been arrested and four days after Shimek had filed a public records request for his camera footage. "That's when I learned I had an additional charge of resisting," Shimek says. He spoke to Walls, who told him about the charge herself. A document with the city’s request to set Shimek's bail back in July only shows a charge of obstructing.
Walls maintains that her decision to charge Shimek with resisting had nothing to do with any of Shimek's actions following his arrest.
"There's nothing retaliatory," Walls says. "Basically this case is being treated like every case that comes across my desk. Honestly, at the end of the day that's all it is."
Still, tacking on a charge of resisting seems flimsy given the contents of the police report. In it, Sergeant Hall notes that Shimek "tensed his arm" when Hall grabbed it, and that Shimek refused to get on his knees. Footage from the arrest starts getting shaky around the time Shimek’s getting handcuffed, but Hall can be heard saying, "Get down on your knees" several times. "I am on my knees," Shimek says a few seconds later.
The police report also says that both Hall and another officer handcuffed Shimek while he was struggling, but Shimek only remembers Hall handcuffing him. "At no point did I ever struggle," Shimek says.
Obstructing and resisting are known as "contempt of cop" charges—crimes that have a lot to do with how much the arresting officer likes the suspect’s attitude, explains Nancy Talner, staff attorney at the American Civil Liberties Union of Washington.
In 2008, a Seattle Post-Intelligencer investigation found that defense lawyers often called obstructing charges a "cover" for officers' use of force. Alternately, obstructing or resisting charges can also be used as retaliation. The P-I story also found that black suspects were being charged under "contempt of cop" crimes at a disproportionate rate over their white counterparts. In six years, the number of black men charged with them equaled nearly 2 percent of Seattle’s black male population.
Shimek isn't black, but he does have a history of pissing off various police forces. A quick look through his YouTube channel shows Shimek filming confrontations with police officers at the Port of Tacoma and at protests.
But did Shimek deserve the charges from last summer? His next court date, February 24, should determine whether he did.
"The police submit a police report and the prosecutor decides what charges to bring," says the ACLU's Talner. "I think the question here would be when the question [of use of force] was raised, and when the charge was added."
Talner says that sometimes the arresting officer can pressure a prosecutor to bring an additional charge, but that's pretty difficult to prove. "It's fairly common that it's unclear," Talner says.