The perp walk: The Turkish version of the practice

“The perp walk imposed on the plaintiff was in the nature of an arrest procedure that interfered with the plaintiff's private life and personal rights, and it was carried out in a manner intended to humiliate the plaintiff without any legitimate law enforcement purpose or justification.”

Lauro v. Charles, 219 F.3d 202 (2d Cir. 2000)

There is a difference between a person's arrest being captured on camera and a person being paraded before the public while being arrested. The former involves a procedure related to the execution of a criminal investigation. The latter, however, raises an issue beyond how the investigation is conducted: How is a person who has not yet been convicted by a final court ruling being presented to society?

In recent years, we have been encountering this question more frequently in Turkey. The images that emerge, especially after the detention of well-known public figures, do not limit the debate to the investigation itself. Images of individuals being led in handcuffs, surrounded by numerous law enforcement officers, or taken to the courthouse in front of cameras reach television screens and social media in a short time.

We have faced the same situation regarding Oğuzhan Uğur, Deniz Göktaş, or other well-known names who have recently come to the fore in drug-related investigations. I am not focusing here on whether the accusations against these individuals are true. The investigation and the trial will provide the answer to that. The real issue is the image itself, which emerges before the outcome of the investigation is known.

Because some images do not just show an event. They also form an opinion about the individuals. In American law, this issue has an established name: perp walk. Derived from the phrase “perpetrator walk,” the concept refers to the practice of law enforcement walking a person who has been apprehended or detained in a way that allows the press to take footage. The legal debate over the practice begins here. It should be noted that there is a difference between the press filming a transfer procedure and law enforcement acting in a way that ensures they are filmed.

One of the decisions that most clearly reveals this difference is the Lauro v. Charles, 219 F.3d 202 (2d Cir. 2000) case, which began in the United States District Court for the Southern District of New York and subsequently came before the Second Circuit Court of Appeals.

The lawsuit was filed after John Lauro, who was detained in New York, was subjected to the practice known as a “perp walk” for the purpose of allowing the press to take footage, despite there being no judicial or law enforcement necessity for it.

Lauro was persuaded by detectives to come to New York from his home in New Jersey as part of an investigation into a burglary at an apartment building, and he was arrested there. After being arrested, Lauro was taken to the police station and held there for approximately two hours. The arrest and transfer to the police station carried out up to this stage were evaluated separately from the constitutional violation that was the subject of the lawsuit.

However, about two hours later, an officer involved in the case received a call from the New York Police Department's Office of the Deputy Commissioner of Public Information (DCPI), informing them that the media was interested in Lauro's file and that, therefore, Lauro should be taken on a “perp walk.” Upon this, Lauro was handcuffed, taken out in front of the police station, placed in a police vehicle, driven for only one block, and then taken out of the vehicle and walked back into the police station in front of cameras. These images were recorded by Fox 5 News and later used in news reports regarding Lauro's arrest.

Lauro subsequently filed a lawsuit, claiming that the practice in question violated various constitutional rights, primarily the Fourth Amendment of the United States Constitution. In its 1999 decision, the trial court ruled in favor of Lauro regarding the Fourth Amendment, stating that the “perp walk” in question was a “seizure” that interfered with Lauro's privacy and personal rights and served no legitimate law enforcement purpose. The decision was then appealed.

The court concluded that a staged “perp walk,” performed solely to allow the press to take footage and lacking any legitimate law enforcement purpose, unreasonably aggravated the intrusion to which the detainee was subjected and therefore violated the Constitution.

Indeed, a photograph of a person taken while being taken to the courthouse does not have the same informational value as a photograph of them being walked in handcuffs among dozens of police officers. The second image conveys much more to the viewer than technical information regarding the person's legal status. Even though no verdict has been reached yet, the image can identify the person with the crime.

What is striking for Turkey is that this issue has been clearly regulated in legislation for a long time. Article 27 of the Regulation on Apprehension, Detention, and Taking Statements draws a very clear framework regarding the presentation of a person in the investigation phase to the public. The regulation prohibits announcing the detained person to the public as a “criminal,” bringing them before the press, taking their images, and parading them. The same provision also places limits on the publication of investigation documents. This regulation needs to be emphasized further. Because it is not just talking about the presumption of innocence in an abstract sense. The legislation directly mentions taking the person's image and parading them.

Therefore, we are facing a more concrete regulation than a general sentence like “The person has not been convicted yet, so the presumption of innocence must be respected.” The legal system has already set a limit on how a person in the investigation phase can be presented to the public. Of course, this does not mean that every transfer made within the scope of an investigation or every image taken during a transfer is unlawful. Law enforcement may need to handcuff a person for security reasons. The press may take footage while a person is being taken to a hospital or courthouse. Each of these must be evaluated within the circumstances of the specific case.

There is also the aspect of the issue that differs for well-known individuals. The detention footage of an artist, politician, journalist, or other public figure who is closely known by the public circulates much faster than the footage of an unknown suspect. Moreover, the image merges with the public identity the person has held for years. For an artist, stage footage; for a politician, rally footage; and for a journalist, screen footage can suddenly be replaced by a handcuffed detention image.

At this point, the news value of the image and the meaning the image imposes on the person should be separated. For example, the detention of a well-known person as part of a drug investigation can certainly be news. There may not be a legal problem in informing the public about this investigation on its own. However, the repeated broadcasting of the image of the same person being walked in handcuffs, surrounded by numerous law enforcement officers, creates a different effect.

The news no longer just says “an investigation has been launched against them.” The image can give the viewer a much stronger impression regarding the person's connection to the crime. Moreover, it is not easy to eliminate this impression later. At the end of the investigation, a decision of non-prosecution may be made. A lawsuit may be filed and the person may be acquitted. It may turn out that they are not responsible for the alleged act, but for another crime. However, a few seconds of footage circulating on social media can remain in memory much longer than all these legal processes.

For this reason, the issue of parading should not be seen only as a problem of private life or personal rights for well-known individuals. The difference between the person's legal status during the investigation phase and their appearance in the public eye should also be taken into account.

Here, freedom of the press should not be ignored either. It is indispensable for a democratic society for journalists to follow investigations, report on judicial proceedings, and inform the public. The problem is not reporting the news. The problem is the conscious production of the impression that the suspect is guilty along with the reporting of the investigation.

This is where the Lauro v. Charles decision is most instructive for Turkey. The court does not say “the press should not take footage.” It distinguishes between the filming of a real law enforcement activity and a law enforcement activity performed solely to create footage. Article 27 of the Regulation in Turkish law also provides an important basis for this debate. Therefore, the question that needs to be asked regarding the images we encounter today is not limited to the question of “Why was this person detained?”

Attorney Deniz Ali İlkem Demir