In May, Reason wrote about the trend of "First Amendment auditors," activists who film in government buildings in order to test the limits of what is and is not allowed. One in particular, SeanPaul Reyes, films with a GoPro and posts the videos on his YouTube account. Reyes has been arrested multiple times for filming in public places, including inside New York City police stations.
Today, Reyes filed a federal lawsuit against the NYPD in conjunction with LatinoJustice PRLDEF, a New York–based legal defense fund that focuses on police abuse. LatinoJustice attorney Andrew Case announced the suit at a press conference Monday afternoon.
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. A department spokesperson told Gothamist that recording inside a police station "undermines the privacy of people who interact with the criminal justice system and compromises the integrity of ongoing investigations."
Case says the NYPD is correct—up to a point. He tells Reason that while parts of the police station are certainly off limits, "publicly accessible lobbies" are a different story. "The NYPD says it needs this policy to protect the identity of those waiting in line in a precinct's public lobby," Case noted in the Monday press conference. "But precincts have plenty of private space. Sensitive witnesses do not come in through the front door and wait for a detective before a crowd of strangers."
"The First Amendment is obviously not absolute," Case tells Reason. "There are some places—for example, courtrooms—where there are rules about when you can and cannot record. And these have been developed, and these have been tailored, and these have been examined under the First Amendment."
"Our contention is [the NYPD's] rule, and the way this rule was written, and the way this rule is implemented, since it's an absolute ban, is not narrowly tailored and, therefore, will violate the First Amendment."
In addition to court costs and attorney fees, Reyes seeks an injunction against the NYPD preventing officers from arresting anyone for simply filming in publicly accessible areas.
Reyes has run afoul of government officials across the country through his activism: Earlier this year, he was found guilty of simple trespass in Danbury, Connecticut, for filming inside City Hall. In May 2021, Reyes was arrested for obstruction after filming a traffic stop conducted by a sheriff's deputy in Harford County, Maryland; he later agreed to community service and a written apology to the deputy in exchange for prosecutors dropping the charge.
But Reyes's activism has also born results: Police in Rahway, New Jersey, launched an internal investigation over officers' treatment of Reyes. Reyes' trespassing arrest in Danbury prompted neighboring towns to reevaluate and reassess their own public filming policies, and a Danbury officer was docked five days' pay for using an anti-gay slur during the arrest.
Case charges that the NYPD forbids recording in precincts "so that it can control what video comes out of the precincts." Ideally, the presence of police-worn body cameras would obviate much of the need for citizens to do their own filming. But New York City has dragged its feet in recent years on complying with requests for body camera footage. A 2019 Gotham Gazette report noted that the city had provided 140,000 body camera videos to the Brooklyn district attorney during the previous year, even as it was "delayed or completely delinquent" in filling about one-third of citizen requests for footage.
Citizen recording offers an extra layer of accountability that cities may be unwilling, or hesitant, to provide.
Nationally, the legal climate for allowing citizens to film police is growing more tolerant as well. Arizona passed a law last summer that would ban filming within 8 feet of police. On Friday, Judge John Tuchi of the U.S. District Court of Arizona ruled the law unconstitutional and blocked its enforcement. Citing other state laws that protect police from interference, Tuchi wrote that the law "prohibits or chills a substantial amount of First Amendment protected activity and is unnecessary to prevent interference with police officers."
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