https://www.techdirt.com/2023/11/20/ny-federal-court-theres-a-right-to-record-police-officers-and-state-law-says-that-includes-inside-station-lobbies/ [ ] Techdirt. [ ] * Sign In * Register * Preferences Techdirt [ ] * TechDirt * GreenHouse * Free Speech * Error 402 * Deals * Jobs * Support Techdirt [podcast-ti] How The DMCA Is Being Weaponized Against E-Commerce Sites 'AI' Is Supercharging Our Broken Healthcare System's Worst Tendencies NY Federal Court: There's A Right To Record Police Officers And State Law Says That Includes Inside Station Lobbies [legal-issu] Legal Issues from the better-take-down-those-signs,-coppers dept Mon, Nov 20th 2023 08:27pm - Tim Cushing 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. Filed Under: 1st amendment, nypd, recording cops, recording police, right to record act, seanpaul reyes, tosares korchimet 17 CommentsLeave a Comment If you liked this post, you may also be interested in... * Indiana: Another Age Verification Bill Criminalizing Legal Pornography * Freedom Of The Press Foundation Calls Out Alabama Cops For Arresting Journalists For Committing Journalism * Ohio Lawmaker Wants To Criminally Charge Minors Who Watch Porn to Protect Minors. What? * Wherein The Copia Institute Tells The Copyright Office There's No Place For Copyright Law In AI Training * Twenty Five Years Of The DMCA: Some Good, But Mostly Bad * * * * * * * * * * * * * * * * * Rate this comment as insightful Rate this comment as funny You have rated this comment as insightful You have rated this comment as funny Flag this comment as abusive/trolling/spam You have flagged this comment The first word has already been claimed The last word has already been claimed Lightbulb icon Laughing icon Flag icon Lightbulb icon Laughing icon Comments on "NY Federal Court: There's A Right To Record Police Officers And State Law Says That Includes Inside Station Lobbies" Subscribe: RSS Leave a comment * Filter comments in by Time * Filter comments as Threaded * Filter only comments rated Insightful * Filter only comments rated funny LOL * Filter only comments that are Unread 17 Comments Collapse all replies [6099df4f47]Anonymous Coward says: November 20, 2023 at 9:24 pm That sound you hear is davec blubbering inelegantly as he stamps his old man feet over and over. Reply View in chronology Make this comment the first word Make this comment the last word [12c58bc0a5]Tirear says: November 20, 2023 at 10:54 pm And there's reason to believe Reyes was also interested in recording things happening in areas not actually open to the public: They're really complaining about this? Police try to observe as much as they can about areas they cannot enter from areas they can stand all the time, and courts have ruled that it isn't illegal unless they use technology not generally available to the public or they detain a person without cause while they wait for a dog to arrive. Why should the rules be different when the roles are reversed? If the posters are not meant to be viewed by the public, then stop putting them somewhere visible from public areas. Reply View in chronology Make this comment the first word Make this comment the last word This comment has been flagged by the community. Click here to show it. [09310e6864]Isha Immigration (user link) says: November 21, 2023 at 4:20 am Canada Immigration application, Quebec immigration, Canada IRCC Check Processing times Quebec Immigration: Learn about the Quebec immigration process and how to apply for a Quebec Residency Visa. Canada Immigration Application: Find out how to apply for a Canada Immigration Visa from abroad. Canada IRCC: Get all the information you need to know about Canada IRCC, including the locations of offices, contact information, and the forms required from Isha Immigration. Reply View in chronology Make this comment the first word Make this comment the last word [7445d2233d]Erik says: November 21, 2023 at 5:29 am An honest question. Are the police within their rights to ask the journalist (or anyone really) to leave the lobby/premises if they aren't conducting any business with the police? While I understand it's a public building, they are allowed to set some rules/standards for access and use? I mean at some point if the auditor isn't conducting business with the police he's effectively loitering. For clarity, I'm not implicating the right to record in my question. I'm just asking if the police are within their authority to regulate access to the space. Collapse replies (2) Reply View in chronology Make this comment the first word Make this comment the last word Threaded [2] [e348159055]Paul B says: November 21, 2023 at 5:54 am Re: My general opinion would be yes, a Lobby is a place to do business with the police, its a limited resource that is subject to occupancy limits. The police use it for members of the public to make reports, people present themselves, and other normal actions given the course of busines. It is not a place to just "hang out". On the other hand, if the lobby is not full, or near full, you cant really ask people to leave if their business is done, as its still a public space. I would assume if people were hanging out with cameras all day the cops could use occupancy limits along with lack of business as clear guidelines to get people to move on, or put in a simple time limit. None of this stops a group from rotating people through with cameras to keep watch on the cops. Reply View in chronology Make this comment the first word Make this comment the last word Threaded [2] [6fe25519cb]Doug says: November 21, 2023 at 6:17 am Re: Generally speaking the cops can't just trespass you because you're filming in the lobby of a police station. Your typical loitering statute requires that a person is there for no purpose, or some kind of language to that effect, and if a photographer is doing a video tour of the lobby, or if they're there to create a video journal of their own interactions with the police, it's likely that the loitering statute would not apply or that it would be struck down in court. The cops don't get to decide what qualifies as legitimate business, and the cops don't get to set a time limit on how long you can be there. Of course the cops can try to make whatever rules they want to make, and they can try to enforce them if they want, but if they exceed the Constitution then it will be thrown out as was the case here. Reply View in chronology Make this comment the first word Make this comment the last word [50ea409559]Doug says: November 21, 2023 at 6:12 am Not quite Two points. First, Long Island Audits was polite, as you presumably saw when you watched the video, so your characterization of auditors as antagonist is simply at odds with reality. Please be more careful when generalizing, especially when the person at hand is a counterexample to your claim. Second, zooming in on a camera pointing at a window doesn't actually indicate anything shady. Cameras can only see what our eyes could already see, so if the goal was to get privacy behind those windows, the cops should have already installed curtains or tint. Collapse replies (3) Reply View in chronology Make this comment the first word Make this comment the last word Threaded [2] [697a4b5e9b]Doug says: November 21, 2023 at 6:24 am Re: Oh, amd the third point. I think you were trying to suggest that police department lobbies could be limited public forums, and therefore the cops could restrict the first amendment to some degree. If that's the argument you're making, you're being misleading and mistaken. Even in a limited public forum, a member of the public does have the right to record their own business, which would include things like reporting a crime or making a complaint on an officer. Collapse replies (2) Reply View in chronology Make this comment the first word Make this comment the last word Threaded [3] [a2a0ee528c]Paul B says: November 21, 2023 at 8:39 am Re: Re: I dont think anyone has an argument for recording your own interaction with cops. On the other hand sensentive people sometimes are required to interact with cops, say a rape victom, and espically if its a minor. These are people who do indeed have special rules for their own protection, and these people would likly want to have non publically recorded interactions. Espically since the there very presense in a lobby could be used aginst them or used to threaten them. I wish I could say this was spy games territory but a guy sitting in the lobby 24/7 posting everyone coming and going is an intimidating thing that could prevent normal people from coming out of fear or intimidation. So yes, I am in favor of limited rules for a limited public forum that by todays norms did not traditionally have someone recording 24/ 7, nor people "hanging out" with no appointment or waiting to meet with someone. Collapse replies (1) Reply View in chronology Make this comment the first word Make this comment the last word Threaded [4] [9f0a810914]Doug says: November 21, 2023 at 2:11 pm Re: Re: Re: I hear what you're saying, but your proposed solution doesn't solve the problem. If people are discussing private business in the lobby and are uncomfortable doing so, they need to go into a back room. Otherwise, anyone in earshot can hear them! And if we aren't in earshot, without audio, we don't know why they're there. Just because someone is on film doesn't tell us the reason for their visit to the cop shop. Which is the same thing you get if the photographer is standing on the sidewalk. Or if someone requests security camera footage, which in many states is public record. Finally, when most people go into the police station, they aren't fearful of some random dude's live stream. They're fearful of the cops themselves. And with good reason, as the NYPD shows us time and again. The video in this case shows exactly why most of us would rather have multiple cameras around, especially some that aren't controlled by the cops. Reply View in chronology Make this comment the first word Make this comment the last word [user-default]nasch (profile) says: November 21, 2023 at 7:28 am Auditors In other words, auditors act like cops while talking to cops. And if you like that idea, you'll love this guy. https://www.youtube.com/watch?v=r55BFO9ZVaM&pp= ygUhbWFuIGFza3MgcG9saWNlIG9mZmljZXIgcXVlc3Rpb25z Reply View in chronology Make this comment the first word Make this comment the last word [u2515_100x0-1]ECA (profile) says: November 21, 2023 at 9:15 am So.. "That's why they continue to violate rights regularly, even when they obviously know they're violating rights. " WHAT the hell do they TEACH cops? Because if its 'Nothing', then Why do they pay $1000's for education of police? And since the education ISNT getting into the heads NEEDING to be IN. Why not SUE the agency Educating the persons to be COPS?? UNLESS, SOME IDIOT let them install a CLAUSE that they are not liable for educating the cops. WHICH, Is one hell of a way to leave it OPEN so there is NO background checks or Any personal Checks on the Students. Gang's Mafia, What ever group you want to protect the city. CAN NOW join the cops. JUST aside: What company Allows employees, NOT to know the job they are responsible for, and Generally educates them on more then 1 position in the work force? How many can be sued, Just for looking at a Female WRONG? and what other regulations do they Follow, that the COPS seem to not have? Including: Interpersonal SKILLS. Reply View in chronology Make this comment the first word Make this comment the last word [user-default]davec (profile) says: November 21, 2023 at 9:30 am I don't know why anybody in their right mind would want to be a police officer today (and that alone should scare you). I assume conscription will be required at some point, but even conscripts will eventually demand release. At least with conscription, it would give the public some sense of what it is like to serve as a police officer. Maybe you'll use robots and AI? I'm sure you'll figure it out. Why Police Officers Are Leaving: Low Pay, Overwork and High Costs - The New York Times (nytimes.com) https://www.nytimes.com/2022/12/14/nyregion/nypd-pay-work-costs.html Collapse replies (1) Reply View in chronology Make this comment the first word Make this comment the last word Threaded [2] [9af9251adb]Anonymous Coward says: November 21, 2023 at 12:23 pm Re: Antagonize the very people you are supposed to protect and you get a hostile work environment by your own creation. It's like taking a dump in your own pool then complain it stinks and is full of shit. This isn't hard to understand because nobody likes interacting with power-tripping assholes who might shoot you if you make a wrong move. Reply View in chronology Make this comment the first word Make this comment the last word [c0363e523f]Anthony Loro says: November 21, 2023 at 10:18 am NYPD First of all, this is always been about power. As recent as seven years ago, NYPD would arrest you if you recorded them in the subway. Cops hate cameras they only wear them because we have paid for programs for them and are forced to wear them, proof of this is cops who will do felonies, even when their body cameras are running because they're convinced they are right, NYPD was convinced that it could prevent photography that wasn't theirs but don't believe me just go to YouTube and search on "NYPD lawsuit". Reply View in chronology Make this comment the first word Make this comment the last word [de1ffddfa7]Anonymous Coward says: November 21, 2023 at 10:38 am Defendant's witness has suggested creates a concern that those cameras could be documented and memorialized. Anyone know what this statement actually means? Like, "Here lies camera WP-PC964, it served its precinct well?" I think what they meant is that someone could document the exact positioning and layout of the cameras such that someone could enter the lobby in the future in a manner that prevented them from being identified by the cameras. But properly placed cameras should be perfectly safe to have documented, as they'd have full coverage of the door and of each other. But is there some legal "memorialized" term here that I'm just unfamiliar with? Something going on that's a legitimate concern? Collapse replies (1) Reply View in chronology Make this comment the first word Make this comment the last word Threaded [2] [user-default]davec (profile) says: November 21, 2023 at 11:05 am Re: So you guys are OK with CCTV and ALPRs throughout the city as long as that also applies to cameras in the police lobby. Seems fair. Reply View in chronology Make this comment the first word Make this comment the last word --------------------------------------------------------------------- says: Add Your Comment Cancel reply Your email address will not be published. Required fields are marked * Have a Techdirt Account? Sign in now. Want one? Register here Name [ ] Email [ ] [ ]Subscribe to the Techdirt Daily newsletter URL [ ] Subject [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] Comment * [ ] Comment Options: (*)Use markdown. ( )Use plain text. Make this the ( )First Word or ( )Last Word.(*)No thanks. (get credits or sign in to see balance) what's this? What's this? Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop >> [Post Comment][Preview] [ ] [ ] [ ] [ ] [ ] [ ] [ ] D[ ] How The DMCA Is Being Weaponized Against E-Commerce Sites 'AI' Is Supercharging Our Broken Healthcare System's Worst Tendencies Follow Techdirt Techdirt Daily Newsletter [ ] [Subscribe] Essential Reading The Techdirt Greenhouse Read the latest posts: * Winding Down Our Latest Greenhouse Panel: The Lessons Learned From SOPA/PIPA * From The Revolt Against SOPA To The EU's Upload Filters * Did We Miss Our Best Chance At Regulating The Internet? Read All >> --------------------------------------------------------------------- Trending Posts * Congrats To Elon Musk: I Didn't Think You Had It In You To File A Lawsuit This Stupid. But, You Crazy Bastard, You Did It! * If You Kill Two People In A Car Crash, You Shouldn't Then Sue Their Relatives For Emailing Your University About What You Did * 'AI' Is Supercharging Our Broken Healthcare System's Worst Tendencies Techdirt Deals Techdirt Insider Discord The latest chatter on the Techdirt Insider Discord channel... Loading... Become an Insider! Recent Stories Tuesday 13:28 Florida's Anti-Drag Law Loses The Big One: Supreme Court Says Block On Unconstitutional Law Can Remain In Place (7) 11:58 Privacy Activist Files Complaint Against The EU Commission Over Its Highly Targeted (Misleading) Ads About CSAM Scanning (0) 10:43 FBI Director Admits Agency Rarely Has Probable Cause When It Performs Backdoor Searches Of NSA Collections (6) 10:40 Daily Deal: The Advanced Cyber Security Bundle (0) 09:27 Congrats To Elon Musk: I Didn't Think You Had It In You To File A Lawsuit This Stupid. But, You Crazy Bastard, You Did It! (47) 05:26 'AI' Is Supercharging Our Broken Healthcare System's Worst Tendencies (26) Monday 20:27 NY Federal Court: There's A Right To Record Police Officers And State Law Says That Includes Inside Station Lobbies (17) 15:21 How The DMCA Is Being Weaponized Against E-Commerce Sites (7) If You Kill Two People In A Car Crash, You Shouldn't Then Sue 12:18 Their Relatives For Emailing Your University About What You Did (37) The Man Decides He Doesn't Like Being Hassled, Issues Tickets 10:43 To Reporter For 'Hampering' City Employees With His Questions (15) More arrow x Email This Story This feature is only available to registered users. You can register here or sign in to use it. Tools & Services * Twitter * Facebook * RSS * Podcast * Research & Reports Company * About Us * Advertising Policies * Privacy Contact * Help & Feedback * Media Kit * Sponsor / Advertise More * Copia Institute * Insider Shop * Support Techdirt Techdirt Brought to you by Floor64 Proudly powered by WordPress. Hosted by Pressable. [Got it] This site, like most other sites on the web, uses cookies. For more information, see our privacy policy