NY Federal Court: There’s A Right To Record Police Officers And State Law Says That Includes Inside Station Lobbies

The NYPD has plenty of problems with accountability and transparency. The main problem is this: the public wants some of this and the NYPD wants none of this. So, it does stupid things repeatedly that do little more than remind the public it's not to be trusted.

Like any cop shop, it's manned by cops who believe deliberate ignorance of the law is the best excuse. That's why they continue to violate rights regularly, even when they obviously know they're violating rights.

That's what also gets the NYPD sued on the regular. Despite a pretty much affirmed right to record officers (under the First Amendment), policy directives reminding officers of this fact, and - much more importantly - a state law codifying this right, the NYPD still pretends it can control when and where it can be recorded.

And that, of course, has resulted in more litigation. SeanPaul Reyes - an independent journalist who always records his interactions with NYPD officers - sued the NYPD after officers told him he was not allowed to record them while standing in a precinct lobby. (h/t Volokh Conspiracy)

Reyes is a First Amendment auditor," the term used by people who use confrontational tactics to see if cops are willing to recognize their right to record. Some people think these First Amendment auditors" are assholes. I mean, they sure seem to be. They get up in officers' faces, pepper them with questions and shouted assertions, and generally make cops feel like they're in the wrong even if they're just going about their daily business. In other words, auditors act like cops while talking to cops. No wonder cops hate them. Cops would rather engage in harassment than be subjected to it.

So, Reyes was doing his normal auditor thing in the lobby of the 61st Precinct. While doing so, he was approached by Sergeant Tosares Korchimet, who informed Reyes he was not allowed to record in the lobby. And by inform," I mean Sergeant Korchimet pointed to a sign that stated Members of the public are prohibited from audio/video recording or photography inside this facility." Then he arrested Reyes when he refused to stop recording. This chain of events played out again two months later, resulting in a second arrest.

It's not that the NYPD doesn't have admittedly valid reasons for prohibiting recording inside precinct buildings. As this decision [PDF] notes, the NYPD could make a credible case for forum restriction that would possibly fall on the right side of the First Amendment.

Police precinct lobbies are areas generally used by members of the public to reports crimes and obtain information from law enforcement. The lobbies are open to the street or to a small vestibule that opens to the street and are accessible to the public twenty-four hours per day. Typically present in the lobby of a police precinct may be civilians who are victims of crimes, such as domestic violence or robbery. These individuals may be at the precinct in order to report a crime, retrieve a report they had previously made or talk to a member of the detective unit. There may also be confidential informants or those who the NYPD is trying to sign up as confidential informants. Members of the public can also use the lobby to obtain a complaint form alleging officer misconduct, as Plaintiff contends he was doing here.

[...]

There is no evidence that the government intended to open up police precinct lobbies for expressive activities, like peaceful protesting and leafleting, beyond being open to members of the public seeking assistance from the police. Nor is there evidence that these lobbies have been historically used for unrestricted expressive activities. Indeed, those activities would be at odds with the purpose of a police precinct lobby, a space for individuals to seek assistance from law enforcement.

So, there are good reasons for limiting or forbidding recordings in this space. On the other hand, it is open to the public, which means everyone in the lobby should be on notice their statements and actions may be seen by others.

And there's reason to believe Reyes was also interested in recording things happening in areas not actually open to the public:

A couple minutes into the video, Reyes zoomed in on a police officer, standing in the doorway in front of a restricted area. Later, Reyes zoomed in to the restricted area behind the desk where civilians are able to speak with officers. The video recording also captures the hallway of a restricted area. Defendant's witness stated that there did not appear to be sensitive information down that particular corridor, but that there can sometimes be posters containing sensitive information that is not generally meant for the public. At one point, the video recording captures Sergeant Korchimet entering a security code into a keypad. The video also captures the NYPD security cameras in the lobby, which Defendant's witness has suggested creates a concern that those cameras could be documented and memorialized.

On top of that, the court admits there's no appellate precedent firmly establishing a right to record in this particular circuit. But that doesn't stop it from making that declaration on its own, using an ample amount of federal court precedent to back its assertion.

The Court first finds that recording police performing their official duties in public is protected under the First Amendment. Although the Second Circuit has not yet weighed in on whether recording the police is protected First Amendment activity, other circuits have uniformly recognized a First Amendment right to record the police performing their duties in public.

Then there's a problem of the NYPD's own making: it recognized in its response to the lawsuit that this right exists.

Moreover, the City does not contest that the right to record police is protected by the First Amendment. Tr. 75:1-5 (Q: [D]oes the city dispute at all that there's a First Amendment right to record policy activity? A: No."); see also Patrol Guide at 2 (Individuals have a right to lawfully observed and/or record policy activity . . . in public places, such as streets, sidewalks, and parks, as well as private property in which the individual has a legal right to be present, such as building, lobbies, workplaces or an individual's own property."); Administrative Guide at 2; NYPD Legal Bureau Bulletin at 1 (Civilians have a constitutional right, as well as express
rights under state and local law, to observe and record police officers carrying out their duties.").

There's a presumptive First Amendment right to record police officers. The NYPD's own statements and policies affirm there's a right to record officers in public spaces. The concerns about the privacy of other people in precinct lobbies, as well as more nebulous concerns about officer safety could be enough to persuade a jury that the NYPD can legally forbid recordings in this area.

But there's something far more local and specific that says the NYPD can't do this: state law.

The Right to Record Acts allow for the recording of law enforcement activity" and police activities." Defendant does not dispute that officers interacting with civilians in a police precinct are performing law enforcement or police activities. The Right to Record Acts do not carve out police precinct lobbies as places where individuals are not allowed to record and the Court declines to read that limitation into the Right to Record Acts. Citing to both Right toRecord Acts, the NYPD Legal Bureau Bulletin acknowledges that the right to record police activity is codified in New York State and local law and extends to those individuals in both public places, such as streets, sidewalks, and parks, as well as private property such as a building, lobby, workplace, or an individual's own property." NYPD Legal Bureau Bulletin at 3 (emphasis in original).

To which the state has no answer other than expressing some very wishful thinking:

Defendant offers no opposition to Plaintiff's argument, other than to claim that [u]nder the First Amendment and as well as the State and City Right to Record Statutes, Plaintiff will not succeed on the merits."

lol no

From earlier in the decision:

B. Plaintiff Has Demonstrated a Likelihood of Success on the Merits of the Right to Record Claims

The state may have had a case if it hadn't passed a law that created more protection than that acknowledged by other federal courts under the First Amendment. It could have made the case it had legitimate reasons for restricting recordings inside precinct buildings, even in publicly accessible areas. But these two arrests were unlawful under state law. And precedential decisions from around the nation have held that even restrictions like these might fall on the wrong side of the Constitution.

Reyes secures his injunction, forbidding the NYPD from arresting people for recording in police station lobbies. On top of that, the NYPD is ordered to remove its signs declaring such recordings forbidden. The NYPD cannot legally forbid these recordings, not under state law. If the NYPD doesn't like this, it can do what so many courts have suggested plaintiffs suffering clear rights violations do: take it up with legislators. What it definitely can't do is continue to enforce policies that conflict with state law.