The NYPD's rule barring any member of the public from recording what police officers do when they're inside a police station is unlawful under New York City's Administrative Code, according to a new amicus brief filed by Public Advocate Jumaane Williams in the lawsuit brought by a woman arrested and injured by police who believed she was recording them. Williams has reason to be familiar with the legislative intent of the City's Right to Record law, which guarantees the public broad rights to record the police—he wrote it.
As Hell Gate first reported, Patricia Rodney went into Brooklyn's 62nd Precinct house on December 2, 2020, to pick up a police report for her lost blood sugar monitor, which she needed in order for her insurance company would replace it. Instead, as video evidence shows, police officers threw her to the ground and arrested her, believing that she had been recording them while she stood in the vestibule of the precinct house. Then they hauled her to court, where she was charged with resisting arrest, obstructing governmental administration, disorderly conduct, and criminal trespass. Rodney was later treated for a broken arm that she sustained in her arrest.
Rodney sued the NYPD for false arrest, denial of fair trial, excessive force, and significantly, the violation of her constitutional and statutory right to film the police.
The NYPD's lawyers from the City's Law Department have countered that Rodney has no claim and her suit should be tossed out, in part because she wasn't actually recording the police. "There is no First Amendment right to pretend to record," the NYPD argues in its motion to dismiss. "The officers' actions cannot have chilled the exercise of plaintiff's First Amendment rights–indeed, she was not exercising them." (Rodney's lawyers counter that just because a grandmother in a stressful situation didn't get it together to make her phone actually record doesn't mean she wasn't trying to.)
"A police stationhouse is a nonpublic forum," the NYPD argues, and "while police stationhouses are a generally held open to the public, the privilege to enter and use the space may be regulated to prevent interference with the property's ordinary use." In that context, it concludes, barring the right to record police activity is a constitutionally appropriate restriction.
In any case, the NYPD says, the cops didn't arrest Rodney because she was filming or pretending to film, but because she was blocking the doorway and wouldn't leave. (Rodney's lawyers counter that she was not blocking the entryway, since police body cam footage shows both police officers and members of the public going in and out of the station house without difficulty.)
Police didn't violate New York state’s Right to Record law, the NYPD argues, because that law expressly permits police to arrest someone filming them when there is "probable cause to arrest the person…for a crime defined in the penal law involving obstructing governmental administration."
Perhaps significantly, the motion to dismiss doesn't address New York City's own Right to Record legislation, first put forward in 2016 and finally adopted in 2020 as part of a raft of legislation responding to the George Floyd uprising. The City ordinance, section 14-189 (b) of the Administrative Code, makes no exception for people charged with obstructing governmental administration. It also contains no exception for police precincts.
And unfortunately for the NYPD, the primary author of New York City's Right to Record Act when he was in the NYC city council is Jumaane Williams, now the public advocate. In an amicus brief just filed in Rodney's case by Williams and LatinoJustice, a national civil rights organization, Williams leaves no doubt that his legislative intent was specifically to overrule the NYPD's ban on filming in a station house.
"The NYPD policy ignored the possibility of police misconduct occurring within police stations. It also ignored that police officers themselves are allowed to record within their precincts," Williams writes in a declaration attached to the brief. "In response and in an attempt to end these proscriptive practices, the Council codified the right to record in the RTRA, which defended the right of citizens to record interactions with officers performing their official duties, with the goal of deterring well-documented police misconduct in public spaces, including misconduct inside the public spaces of a police station."
Williams isn't the only council member who has made it clear that the City's Right to Record law was meant to overturn the NYPD's filming ban. Donovan Richards, then-chair of the council’s Public Safety Committee, told the New York Times in 2018 that "the recording ban created a double standard in police stations, where civilians with cellphones are forbidden from recording encounters that police officers with department-issued smartphones and body cameras can," and promised to raise the issue later that year when the committee he led took up the Right to Record Act.
Law Department spokesperson Nick Paolucci denied that the city is making any changes.
“Reports that the city is considering rescinding the NYPD’s policy prohibiting filming in precincts are false. That policy exists for security purposes and to protect the privacy of individuals, including victims of crimes," Paolucci said. "We are reviewing the Public Advocate’s amicus. Our priority is on the facts and the rule of law. We moved to dismiss claims we believe are meritless against the city and the officers, and the remaining claims involving use of force are under review.”
Where the lawsuit goes from here remains to be seen; discovery is proceeding in the case. At a hearing before a federal magistrate judge last month, Rodney's lawyer expressed doubt that the NYPD's lawyers would agree to any settlement that included rescinding the NYPD's filming ban. John Schemitsch, the Law Department attorney representing the City and the NYPD in the case, suggested that anything's possible.
