N.Y. Law Protects Public's Right to Record in Police Precinct Lobbies

even though the First Amendment doesn't itself provide such protection.

In yesterday's Reyes v. City of New York, Judge Jessica Clarke (S.D.N.Y.) (appeal pending) held that the First Amendment "right to record police conducting official duties in public places" doesn't apply to police precinct lobbies: They are "nonpublic fora" where restrictions on First Amendment activity need only be viewpoint-neutral and reasonable, and bans on recording in such places are reasonable in light of the government's "privacy, safety and security interests." But it held that New York law protects such recording:

The New York State Right to Record Act ("NYS RTRA"), enacted on July 14, 2020, provides that "[a] person not under arrest or in the custody of a law enforcement official has the right to record law enforcement activity and to maintain custody and control of that recording and of any property or instruments used by that person to record law enforcement activities …." Persons are barred from recording if they "engage in actions that physically interfere with law enforcement activity or otherwise constitute a crime defined in the penal law involving obstructing governmental administration." The NYS RTRA further creates a private right of action.

Similarly, the New York City Right to Record Act ("NYC RTRA," together with the NYS RTRA, the "Right to Record Acts"), enacted on August 14, 2020, states that "[a] person may record police activities and maintain custody and control of any such recording and of any property or instruments used in such recording." The law further provides that "[n]othing in this chapter shall be construed to permit a person to engage in actions that physically interfere with an official and lawful police function, or to prevent the seizure of any property or instruments used in a recording of police activities where the seizure is otherwise authorized by law, or to prohibit any officer from enforcing any other provision of law." …

[T]he broad, straightforward provisions of the Right to Record Acts mean what they say: people can record the police….

In passing the Right to Record Acts, the legislatures presumably considered the privacy, security and safety concerns that might result from a broad statute allowing the public to record law enforcement, and they found that transparency and accountability of law enforcement officials outweighed those concerns. The Court finds no basis to disturb that decision.

Law enforcement is part of the democratic system of government and the public has a legitimate interest in seeing how law enforcement operates. "Access to information regarding public police activity is particularly important because it leads to citizen discourse on public issues …."

Plaintiff is represented by Andrew Claude Case and Meena Oberdick of LatinoJusticePRLDEF.

Comments

[Currentsitguy]

If it is open to the public, is publicly owned, and is funded by taxpayer dollars, the 1st Amendment is in full force, and no, suspicion is not a crime and no one is required to produce ID for a Constitutionally protected activity.

[Eugene Volokh]

Currentsitguy: Any sense of how your analysis fits with the Court's repeated holdings that some government property (such as airports, even outside the security cordon, courthouse grounds, and more) is a "nonpublic forum" in which the government can restrict First Amendment activities so long as the restrictions are viewpoint-neutral and reasonable? Or are you just talking about the law as you think it ought to be?

[o estrangeiro]

"If it is open to the public . . ."

Oh meu Deus.

A police lobby is open to the public for people to conduct official business in accordance with the purpose of the lobby. It is not a film set. People and police in the lobby are not unpaid extras for film makers to use at their will.

Don't know what "suspicion is not a crime " means; being suspicious is not a crime. But, if someone's behavior gives rise to a police officer's reasonable articulable suspicion that criminal behavior may be afoot, the police officer may detain and ask for ID. Suspicion of specific criminal intent is not required. Nor is the police officer required to articulate to the suspicious person what the reasonable suspicion is. This is a very low bar. See Terry vs Ohio and progeny.

As pointed out, NY law appears to allow wankers to run around freely in police station lobbies making asses of themselves even though such behavior does not fall under the constitutional protection.

[Noscitur a sociis]

Prof. Volokh,

Any thoughts about whether or not this decision is correct? As at first blush it seems a bit odd for a federal judge in a federal question case who has concluded that a state agency has not violated federal law to issue an injunction based on a finding that it violated state law.

[John F. Carr]

Federal courts do not have jurisdiction to order state officials to comply with state law. Pennhurst v. Halderman. The defendants here are city officials.

[David Nieporent]

Nothing forbids the court from exercising supplemental jurisdiction here — indeed, the court specifically analyzed that.

[Noscitur a sociis]

I didn’t say it was unlawful—just odd.

[John F. Carr]

The decision concentrates on risks of video recordings.(*) I assume "record" means either audio or video. Audio only recordings should be distinguished and left to a future case.

* "Sir, you can't let him in here. He'll see everything. He'll see the big board!"

[apedad]

HA!

[Bwaaah]

For anybody who doesn’t know, the plaintiff in the case, Seanpaul Reyes, is a lowlife dirt bag who simultaneously harasses police (and other people including civilians) while recording his harassment so he can post videos online to make money (on views). If you get a chance to see his “work,” you’ll see that it’s extremely loud and so filled with angry, in-your-personal-space, pejorative invective that it’s pretty much impossible to not to be disrupted by his presence.

It’s not surprising that he’s protected by a law passed in the summer of 2020, in which many politicians moved to protect the excessive, destructive behaviors of people under a theory of protecting political expression. I am thankful for our First Amendment, but challenged by opportunists like Reyes who make it a costly protection that sometimes cuts against its intended purpose (and in fact, as stated in this case, the First Amendment does not protect this behavior in such a forum). The New York State legislature extended that protection to harassing behaviors like Reyes’ as part of its summer of “We Hate the Police Too” initiatives.

[SimonP]

"The police are entitled to their privacy when taking away citizens' rights" is not a take I expected to find on the VC or Reason more generally. But fascism is popular these days, so.

[damikesc]

Imagine the views on these boards for government interference with social media. I bet the belief that such behavior should be barred is quite popular and nobody would be dumb enough to ask about the government's free speech...

[Sarcastr0]

The 1A is mostly tested by loathsome people.

And to echo SimonP, you seem way too pro-police against all comers to be much of a libertarian.

[Bwaaah]

Why don’t you walk into an empty NYPD police precinct lobby and stand there for a few minutes with your camera trained on the NYPD employee behind the bullet proof window. Then ask, “Does anybody work here?” You’ll probably get no answer.

Kick it into gear: “I GUESS THIS IS PIGGY CENTRAL, AND YOU’RE THE PIGGY COUNTER BITCH! Where’s your piggy boss, piggy bitch?” The more civil part can include something like, “YOU work for ME, BITCH!”

But still, you probably won’t get much response. Because they’re giving you a wide range of space. So use this one: “I want to file a complaint!” The second time you say it, you’ll be asked, “What do you want to complain about?” (which is a necessary question in order to determine the answer to that question). Frustrated by the civility of the response, you say, “What difference does that make? I want to see a supervisor. And I want your name and badge number, because you’re not doing your job.” (Throw in something facetious about their “oath of office.”)

This will serve as the first 2 minutes of your initiative to get something, anything, nasty going on the in the lobby of an NYPD police precinct. Over the subsequent 15 long minutes, you should get louder and louder. Eventually, if you stay there long enough, somebody will likely, randomly, with no relation to your scene, come in the front door or from a back office door. This is your moment to yell some unhinged shit at the person as they enter the space and point the camera at them as they’ll have to walk by you to get where they’re going. The moment they walk in, quickly position yourself within a foot of where that person intends to walk, and thereby force them to go around. You’ll be right in their space as they do, and you can yell some stuff about about “freedom” and “constitutional rights” as you now get your phone within 5 inches of their face. DON’T MISS THIS TACTIC…you must get your phone close enough to the person’s face to trigger a sense of invasion of personal space. They will often automatically raise their arm to block your threatening incoming movement. If they do that, yell, “YOU JUST ASSAULTED ME!” Then add, “DO YOU’RE FUCKING JOBS, COPS! I WANT THIS PERSON ARRESTED FOR ASSAULT NOW!” (You should go with that even if the person is a cop.)

Now that you have intentionally impeded the movement of somebody, purely for the purpose of harassing the person (with whom you otherwise have no prior interaction or purpose), you declare, “I was just standing there when this person assaulted at me!”

Finally, a cool-headed police officer will come out after having been informed by the person at the desk that there’s a problem in the lobby. The officer says, “Can I help you?”

You should have at least 10 really nasty answers to that question before you’re asked, and they should all sound particularly demeaning to cops. Because a police officer who really just wants to avoid a confrontation correctly senses, by this point, that you’re trying to create a confrontation. (Remember your viewers, dirt bag.) And you’re going to have to REALLY RATCHET UP YOUR NASTINESS NOW IF YOU’RE GOING TO GET HIM TO BITE.

But don’t worry, dirt bag. Within 45 minutes, they will be demanding that you leave, even after considering, “MAH CIVIL RAHTS.”

You think I’m too “pro-police?” I just can’t stand nasty dirt bags who abuse other people who are behaving quite civilly and reasonably. But I get where you’re coming from….they’re cops…why would we want to protect them from dirt bags like Seanpaul Reyes? You see the police as the bad guys in that otherwise empty lobby, and I see Seanpaul Reyes as the bad guy. Please forgive me for my bad taste.

[Bwaaah]

I'm not pro-police. You're obviously anti-police. You suggest withholding a level of decency that, in my view, everybody deserves (absent them having previously acted in a manner that would warrant such a denial of decency; try to set your bigotry aside for a moment).

[patimen]

Do you always lie so blatantly? Do you always slander people with no regard for the truth? Have you watched ANY of Reyes ACTUAL videos? He is, by far, the most polite auditor out there.

[Jamesnv]

Bwaaah, your characterization of the plaintiff, Mr. Reyes ( A.K.A Long Island Audit) is wildly inaccurate. He does enter public places to record his interactions with public officials. However describing him a "loud" or "angry" or "disruptive" simply isn't true. In general, Mr. Reyes is exceeding polite and he makes an obvious effort to deescalate most situations.

[Bwaaah]

Sorry. I don't know the guy well. I was referring to his ilk. It appears that Mr. Reyes style is to speak with notably less belligerence than most of his peers.

Here's Mr. Reyes doing his brand of harassing people. (https://youtu.be/yTOILrtCAZM?t=225) He was subsequently convicted of trespass for this (after a full trial). As usual, he falsely asserts that he can lawfully record in any "public" area, always ignoring the concept of a "limited public forum." (Under his BS theory, he can walk into the Oval Office, or the Pentagon, and speak/record whenever he wants. You know..."public property.")

[David Nieporent]

For anybody who doesn’t know, the plaintiff in the case, Seanpaul Reyes, is a lowlife dirt bag who simultaneously harasses police (and other people including civilians) while recording his harassment so he can post videos online to make money (on views). If you get a chance to see his “work,” you’ll see that it’s extremely loud and so filled with angry, in-your-personal-space, pejorative invective that it’s pretty much impossible to not to be disrupted by his presence.

…

Sorry. I don’t know the guy well. I was referring to his ilk.

That’s an impressive walkback.

[Daddyhill]

How about a compromise of sorts, even if suggesting such a thing is no better than wishful thinking. I'm in favor of greater transparency and accountability of all law enforcement agencies. There have been too many rotten apples in too many bad barrels. As in other institutions run almost exclusively by males, the bad apples too often seem to be the beneficiaries of the "Serve and Protect" ethos/mythos. So denying members of the public the right to record police activity in public spaces seems wrong to me.

At the same time, however, we're all bound by the social contract to behave not just lawfully, but also civilly. Disturbance of the peace and all other forms of disorderly conduct are still violations of all citizens' duty to respect the rights and tranquillity of others in public spaces. So while all have the right to record police activity in public spaces, such recorders should be on notice that they do not have the right to stage loud dramatic scenes which could be very alarming to all other civilians present.

The vast majority of us really don't like reports of "bad apple" police misconduct, whether sort of benign or outrageous. My hope is that greater citizen awareness of how the cops do their jobs, when they do them well, and when they offend, will result in less police misconduct and greater public trust in law enforcement in general. The vast majority of us don't like loud and alarming people suddenly acting like assholes either, when we are in public spaces that themselves often cause us to feel anxious already. I'm not sure how balancing these two (potentially) conflicting rights could be done, legally and equitably. I'm betting that others might know.