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A First Amendment auditor just had his day in federal court against the New York Police Department.
And he won.
The NYPD Patrol Guide states that while recording the police is generally allowed, "Members of the public are not allowed to photograph and/or record police activity within Department facilities," and officers are authorized to ask the person to stop filming and to arrest them if they don't.
On April 4, 2023, Sean Paul Reyes, a First Amendment Auditor whose channel name is Long Island Auditor, was arrested in the 61st Precinct in Brooklyn (Bensonhurst) when he stood in the precinct lobby in a line for people waiting to report something at the front window. He was able to record the encounter up to the moment he was handcuffed. The Kings County District Attorney declined to prosecute the charges.
On June 1, 2023, Reyes attempted to record inside the NYPD’s 75th Precinct. He was arrested and charged with Trespass, Criminal Trespass in the Third Degree, and Obstructing Governmental Administration. Those charges remain pending.
On July 24, 2023, Reyes filed a Complaint in U.S. District Court for the Southern District of New York, alleging that the Police Department's Procedure which prohibits recording in the lobbies of police precincts, violates the First Amendment, the New York State Right to Record Act and the New York City Right to Record Act.
In his court filing, Reyes stated that would like to continue his investigations into the NYPD. He has
stated that people want him to help them file complaints and record the interactions, and
subsequently post the video on his social media channels. Reyes claims that he is not able to do so, because he will be arrested again.
Accordingly, Reyes sought a preliminary injunction to (1) prohibit the NYPD from enforcing the Procedure and (2) require the NYPD to remove the signs in precincts setting forth the Procedure.
United States District Judge Jessica G. L. Clarke agreed with Reyes and has formally enjoined the NYPD from enforcing their "No Recording Procedure" in NYPD police precinct lobbies. Additionally, Judge Clarke ordered the NYPD to remove all "no recording" signs from precinct lobbies.
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.
The New York City Right to Record Act (“NYC RTRA") further grants similar rights.
Reyes argued that the broad, straightforward provisions of the Right to Record Acts mean what they say: people can record the police.
The judge agreed, finding that the Right to Record Acts allow for the recording of “law enforcement activity” and “police activities, and that the NYPD did not dispute that officers interacting with civilians in a police precinct are performing law enforcement or police activities. Moreover, 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.
Accordingly, the judge concluded that Reyes showed a likelihood of success on the merits of his arguments.
A strong showing of irreparable harm, as well as a showing that the balance of equities tips in his favor and that granting the preliminary injunction would serve the public interest is also required to be granted a preliminary injunction.
The judge agreed that Reyes made a good showing on all of these factors.
“Irreparable harm is an injury that is not remote or speculative but actual and imminent, and for
which a monetary award cannot be adequate compensation.” Tom Doherty Assocs., Inc. v. Saban
Ent.
The Court finds that Plaintiff has made a strong showing of irreparable harm. Plaintiff records and posts videos “to educate the public on how their public officials behave” and to hold police officers accountable. He states that recording and posting videos is necessary to report on law enforcement’s “lack of accountability” and “lack of transparency. If Plaintiff were to wait until the end of a trial for a decision in his favor, he would not be able to, in the meantime, provide a window of transparency into police officers exercising their duties. “Transparency in government, no less than transparency in choosing our government, remains a vital national interest in a democracy.” Nat’l Ass’n of Mfrs. v. Taylor.
Moreover, the prospect of the Procedure being enforced has already caused Plaintiff to forgo recording in police precinct lobbies. Without an
injunction, Plaintiff faces a choice between pursuing filming the police – something that New York law unequivocally permits him to do – or being arrested because of NYPD’s continued enforcement of this Procedure. In light of the ongoing nature of this harm, monetary damages would not adequately compensate him for his injuries. Accordingly, this factor weighs in favor of granting the preliminary injunction.
The Court must also balance the competing claims of injury, consider the effect on each party of the granting or withholding of the requested relief, and pay particular regard to the public consequences in employing the extraordinary remedy of preliminary relief.
The City has made a colorable showing that privacy, security and safety concerns are implicated by recording in police precincts. Those interests, however, are not so great that they outweigh the enforcement of clear laws duly passed by elected state and city officials. 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.
Accordingly, the Court finds that the balance of equities tips in Plaintiff’s favor and the injunction is in the public interest, and Plaintiff’s motion for a preliminary injunction is GRANTED.
The City of New York immediately initiated an appeal to the Court of Appeals, Second Circuit.
Additionally, the City sought a stay of the injunction order pending the appeal. The stay was denied, however, Reyes has consented to allow the City to have until November 17, 2023 to implement the injunctive measures (apparently, the City was claiming that they need that much time to run around to all the police precincts and remove the offending signs).
Reyes filed the federal lawsuit against the NYPD in conjunction with LatinoJustice PRLDEF, a New York–based legal defense fund that focuses on police abuse.
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5 comments:
He recently did his shtick at the Lakewood Public Library.
To bad Reyes LOST on the constitutional and 1st amendment right to record inside of government buildings. For this reason this is actually a loss. But frauditors aren't smart enough to realize this.
Actually?
Reyes did Not lose...You're incorrect.
Firstly, this entire post is wrong. He didn't win the case, he won a preliminary injunction to allow filming while the case proceeds, later amended on appeal to apply only to Reyes when he provides ID. Reyes, of course, doesn't share that part with his audience but can be easily verified by reading the court documents.
The actual case has not been concluded yet and is still ongoing.
@Mel - if you read the ruling, he absolutely DID lose on the Constitutional question as the Court completely debunked the "Constitutional right to film in a government building" claim, he only won the injunction based on the NYC local "right to record" law.
So not only did the Judge completely debunk the Constitutional claim (again - that's like the 6th time in the past 5 years the Federal Courts have done so) the ruling has zero applicability outside of NYC.
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