Inspector General's Report Slams DOJ For Mishandling Its Investigation Of FBI Crime Lab Problems

Lawsuit Filed To Force NYPD To Respect Citizens' First Amendment Right To Record Police Officers

from the inevitable-law-enforcement-response:-'make-me' dept

Fri, Jul 18th 2014 5:42pm — Tim Cushing

The NYPD may be arbitrarily slapping the word "secret" on its internal documents and making sure all of its intelligence stays safely within its walls, but when it comes to communicating with the outside world, it's apparently a one-way transaction. It talks (when it wants to and can completely guide the narrative) but it rarely ever listens. Case in point: the Brooklyn DA says he won't prosecute low-level marijuana possession charges, so naturally the Brooklyn division tells its officers that low-level marijuana possession arrests will continue uninterrupted.

Now, it's facing a lawsuit for its refusal to stop arresting citizens for filming police officers. A recent court of appeals decision UPHELD (all caps for a reason) the public's First Amendment right to film police officers and other public servants. The ruling was loaded with exceptions, but it did reaffirm what was already a legal right, albeit one that is routinely trampled by members of law enforcement who take offense to being publicly recorded while performing their public duties.

A federal lawsuit, which cites arrests of people who recorded police confrontations or activity, was filed on Tuesday asking a judge to declare that people have a right under the First Amendment to film or record officers working in public places.

The suit was filed in Federal District Court in Manhattan on behalf of one of the people arrested, and seeks a permanent injunction barring New York City employees from retaliating against those who record them in public.

The NYPD apparently believes it's exempt because there's been no specific ruling from a district court covering its jurisdiction. This despite the fact that the DOJ itself fired off a letter in response to a lawsuit brought Baltimore that stated plainly:

[T]he justification for this right is firmly rooted in longstanding First Amendment principles.

This also despite the fact that its own Patrol Guide say photographing police isn't an arrestable offense.

[T]he Police Department Patrol Guide states that “taking photographs, videotapes or tape recordings” do not constitute probable cause for arrest or detention so long as the activity does not jeopardize the safety of officers or others.

This also despite the fact that the NYPD's own chief of federal litigation made the following statement:

"[B]ystanders are allowed to film police officers as long as they’re not interfering with the officers’ duties and/or police operations.”

The NYPD may be trying to dodge this on jurisdiction specifics, but note that the DOJ's letter doesn't specify this only applies to Baltimore. The letter plainly says "First Amendment right," which is something applied to all Americans, regardless of jurisdiction. It also references the Glik decision, which plainly established citizens' right to record.

Recording governmental officers engaged in public duties is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers.(2) See, e.g., Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011)

The footnote (2) begins with this unambiguous sentence:

There is no binding precedent to the contrary.

And yet, the NYPD continues to harass, arrest and shut down citizens who record police interactions. Shawn Thomas' experience, which we detailed here earlier, saw him harassed by a police officer who claimed he was interfering with police business despite the fact that he had to walk 30 feet away from the detained suspect to deliver this statement. The whole interaction began with police intimidation tactics and culminated in the arrest of Thomas.

Thomas was not an isolated incident.

Debra Goodman, was taking a cellphone video of paramedics assisting a woman in a wheelchair on West 73rd Street and Broadway last year before a police officer intervened.

"He asked me to produce ID. I refused, because I knew I wasn’t doing anything wrong,” Goodman told CBS. “And then he grabbed my arm and handcuffed me, and told me I was under arrest.” She was held for 25 hours.

This lawsuit asks for a permanent injunction prohibiting retaliatory actions from NYPD officers against those who record them. Time and money are going to be poured into "protecting" a right that already unequivocally exists. And there's no guarantee the NYPD will pay attention even if it receives a jurisdiction-specific injunction. After all, a federal appeals court ruled the state's wiretapping law (something frequently abused to prosecute citizens for recording cops) was unconstitutional and this decision was greeted by Morgan County prosecutors and law enforcement with a "so, business as usual" shrug. It took the involvement of the ACLU to get Morgan County to align itself with a ruling that plainly stated recording police was not a violation of the wiretapping statute.

What the NYPD is doing is ignoring common knowledge and several court decisions. The DOJ's letter may have been addressed to Baltimore's police department, but the wording (and the cases cited) apply to every law enforcement agency. The US government itself has declared that citizens have this right, something that comes bundled with the First Amendment. It's utterly ridiculous that anyone should have to force the issue in a "local" court in order to make the NYPD respect citizens' First Amendment rights.

234120837 Goodman vs NYPD (PDF)234120837 Goodman vs NYPD (Text)

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Filed Under: citizens, filming, first amendment, nypd, police, recording police

34 Comments

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S. T. Stone, 18 Jul 2014 @ 6:02pm

Place others above the law for any reason and they suddenly latch onto the idea that the law no longer applies to them.

Imagine that.
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Anonymous Anonymous Coward, 18 Jul 2014 @ 6:05pm

Just NY?

"The US government itself has declared that citizens have this right, something that comes bundled with the First Amendment. It's utterly ridiculous that anyone should have to force the issue in a "local" court in order to make the NYPD respect citizens' First Amendment rights."

Or in any other US jurisdiction or protectorate.
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Anonymous Coward, 18 Jul 2014 @ 6:15pm

The US government itself has declared that citizens have this right, something that comes bundled with the First Amendment.
Real cute, feds. Now where is your declaration with respect to the Fourth Amendment and mass surveillance?
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- Anonymous Anonymous Coward, 18 Jul 2014 @ 6:28pm
  
  Re:
  You raise an interesting point with regard to action.
  
  The action I would like to see is a federal civil rights prosecution every time this happens. Toss several dozen cops in jail from different jurisdictions and now your talking deterrents...OK, I will wake up from my dream now...
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Groaker (profile), 18 Jul 2014 @ 6:40pm

Criminal prosecutions followed by civil suits stripping the criminals of all their personal assets. Followed by firing and pension loss all the way up the chain of command, just might slightly reduce the violation of recording rights.

Not just a couple of dozen, but every last violator.
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- That One Guy (profile), 18 Jul 2014 @ 6:50pm
  
  Re:
  Exactly so. The cops will start respecting the rights of the people only when they face punishment for violations. The current 'slap on the wrist' and 'stern warning not to get caught next time' accomplishes absolutely nothing with regards to keeping them in line, and everyone knows it.
  [ link to this | view in chronology ]
John Snape (profile), 18 Jul 2014 @ 10:27pm

18 USC 242
That's what 18 USC 242 was written for. They know they are violating the citizens' rights, so make them personally pay for their folly.
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Mr Big Content, 19 Jul 2014 @ 12:14am

This Could Never Happen In Teh USA
Our freedoms are safe, not like in these foreign places. You know why? Because of the Second Amendment. The Government knows, if it ever tried to trample on any of our IMPORTANT rights, our guns would be out and trained on them like a ton of bricks.

So don't sweat the small stuff. We can sleep safe at night, with that ultimate guarantor of our rights close at hand, under that pillow.
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- David, 19 Jul 2014 @ 12:31am
  
  Re: This Could Never Happen In Teh USA
  Wielding a gun is an invitation for getting shot. It's a declaration of the level you want to be fighting at.
  
  Wielding a fascist government is an invitation for armed resistance from people defining themselves as freedom fighters.
  
  And it's not like basically every important leader of terrorist actions against the U.S.A. hasn't had CIA training. It's probably the CIA's idea of job security.
  [ link to this | view in chronology ]
  - andypandy, 19 Jul 2014 @ 4:17am
    
    Re: Re: This Could Never Happen In Teh USA
    History shows that eventually the people will start using force and creating change You just have to look at what happened in the middle east to realise that the NYPD will eventually become the losers they are when the people decide to get up of their butts and fight back. It will happen and it will be a bloodbath remember the middle east uprisings spilt a lot of blood before the people succeeded in every single instance, And yes what was left behind was not the best but at least the police were almost completely dismantled.
    
    The fact that the NYPD is more a military force than police will mean a lot more blood spilt but thought history people have had to offer their lives to remove obscenities from power.
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    - Lawrence D’Oliveiro, 20 Jul 2014 @ 3:53am
      
      Re: This Could Never Happen In Teh USA
      *Sigh*. It’s like an intellectual off-switch for the gun nuts: mention their well-trodden excuse that guns help to protect them from Government oppression, right in the context of an article which gives the lie to that claim, by pointing out yet more instances of Government oppression that they seem to be able to do nothing to prevent, and they don’t even notice the incongruity.
      [ link to this | view in chronology ]
      - Anonymous Coward, 23 Jul 2014 @ 7:57pm
        
        Re: Re: This Could Never Happen In Teh USA
        So, someone mentions actively fighting back, if necessary, and they are a 'gun nut'? I don't understand the cognitive dissonance.
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Personanongrata, 19 Jul 2014 @ 4:30am

Petty Authoritarian Control Freeks
What is the incentive for the NYPD to change it's petty authoritarian control freak policing methods?

It is clear even for a casual observer that the NYPD has zero respect for the NYS/US constitutions both of which the entire department has sworn oaths to "protect and defend".

When the DA's office and courts fail to hold the NYPD to account it creates an anything goes policing attitude that allows the police to run rough-shod over the very citizens they're supposed to be serving.
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AC, 19 Jul 2014 @ 8:04am

Make them Pay
The only way to deal with this bully is to make the NYPD pay and they need to pay lots, only then will they stop arresting people falsely. Make it hit them in the pocket book and make it hit hard, each individual that is arrested for filming needs to sue the NYPD, only once they have lost millions and millions will they tell their foot soldiers to quit arresting these people.
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Anonymous Coward, 19 Jul 2014 @ 8:54am

Solution is very simple, sue personally the perp and go after their personal assets, including NYPD pension. Then, the miracle happens.
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1st Dread Pirate Roberts (profile), 19 Jul 2014 @ 10:35am

That's the curse of public service
How many times do we have to keep telling you guys? As a public servant performing your taxpayer-funded duties in public view, you are subject to being recorded by the public. Just accept that, and go back after all those gangs dealing drugs and guns.
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David, 19 Jul 2014 @ 11:44am

Vote with your feet
If they want to do that, boycott the city for violations of civil rights. The Big Apple has a worm in it.
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Anonymous Coward, 19 Jul 2014 @ 1:48pm

It's alright for "bystanders" to film police officers, so long as they don't interfere with police duty.

Let's take the case of the woman filming paramedics before police showed up. Once police showed up, the police officer approached the woman filming and demanded to see her ID. You must produce ID if an officer demands it. Whether you feel such a demand is relevant or justified does not matter, it's the law.

Now, once the officer demanded to see her ID. She is no longer considered a "bystander". She is now considered "temporarily detained" and she is now an active participant in a police investigation.

According to my understanding of the law as it pertains to filming cops. It's permissible to film cops questioning your buddy, so long as the one filming is not being "temporarily detained". But it's not permissible for you to film cops if you, yourself, are being "temporarily detained" and questioned.

So basically if cops want to get around being filmed. All cops need to do is have their partner walk up to the ones filming them, and "temporarily detain" them all by asking to see their IDs and asking them additional questions.

While they're being "temporarily detained". The persons filming will be required to turn their cameras off, until the officer releases them from "temporary detainment".

Conclusion: You're best bet when filming police conduct is to make sure the cops don't notice you filming them. Otherwise they'll "temporarily detain" you and compel you to shut your camera off.
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- Anonymous Coward, 19 Jul 2014 @ 1:55pm
  
  Re:
  In America, there is no statutory requirement to provide an officer Identification of any kind.
  
  People like you should stop posting on the internet, you ARE part of the PROBLEM and IGNORANCE that plagues this nation!
  
  Of course, regardless of the law, an officer can easily make your life miserable or arrest you for just look cross eyed with little recourse on your behalf but to wade through a corrupt system for relief. But by all means, STOP POSTING YOUR DRIVEL!
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  - Anonymous Coward, 19 Jul 2014 @ 2:28pm
    
    Re: Re:
    "Stop and identify" statutes are laws in the United States that allow police[1] to detain persons and request such persons to identify themselves, and arrest them if they do not.
    
    https://en.wikipedia.org/wiki/Stop_and_identify_statutes
    
    Please don't call me "a plague". I was only trying to point out a loophole that law enforcement officers can use to force people to shut off their cameras.
    [ link to this | view in chronology ]
    - Matthew Cline (profile), 19 Jul 2014 @ 6:10pm
      
      Re: Re: Re:
      The cops have to first detain you before a "stop and identify" statute applies. And if they have an excuse to detain you, then they don't need to ask your name to keep you detained.
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    - Anonymous Coward, 23 Jul 2014 @ 7:59pm
      
      Re: Re: Re:
      These statutes have been deemed unconstitutional (Terry v Ohio). A person must be under arrest before they are required to ID themselves, and you do not have to carry an ID with you. Name and birthdate are all that is required.
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- RD, 20 Jul 2014 @ 11:50am
  
  Re:
  "You must produce ID if an officer demands it. Whether you feel such a demand is relevant or justified does not matter, it's the law."
  
  You have to only identify yourself, according to the law. You do NOT need to produce any kind of ID, unless, as another poster noted, you are operating a motor vehicle. As a bystander, you DO NOT HAVE TO GIVE AN ID to a cop. That is not "the law."
  
  So yes, you are a plague spreading false information and the presumption of automatic capitulation to authority.
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Kevin (profile), 19 Jul 2014 @ 2:52pm

"A recent court of appeals decision UPHELD (all caps for a reason)"

Well don't keep us in the dark, Tim. What was the reason?
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- That One Guy (profile), 20 Jul 2014 @ 1:31am
  
  Re:
  The likely reason being that if you went off of the actions of the police, the fact that the right was upheld would probably come as a surprise, since the cops obviously believe different, and act accordingly.
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Timothy E. Harris, 19 Jul 2014 @ 5:38pm

Re: Re
Yes, you have to identify yourself. When asked, you politely tell them your name. There is no requirement that you possess an ID card of any sort, much less produce one. We're not quite to the point of requiring internal passports in the U.S. yet.

Of course if you're operating a motor vehicle then you must produce a valid license.
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- Anonymous Coward, 23 Jul 2014 @ 8:01pm
  
  Re: Re: Re
  You are only required to identify yourself if you are under arrest. At no time are you 'required' to answer police questions. This is on the basis of the Fifth Amendment. Just remember to invoke your right to remain silent, and then shut up.
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Michael Becker, 19 Jul 2014 @ 8:57pm

It's long past time...
to not just insure that every cop understands the public has a right to photograph them in the commission of their duty, but it's long past time to take away sovereign immunity that protects them from outrageous and unconstitutional behavior.
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Deserttrek, 19 Jul 2014 @ 9:28pm

law enforcement is just that .. enforce the law as the cop sees it. that is dangerous to all and isolates them from the public.
nowadays the cops are the criminals
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Anonymous Coward, 20 Jul 2014 @ 2:26pm

That is in some part a matter of local and state law, as well as what you are, or appear to be doing in the local area. Further consideration may also be given to actions by others that have nothing to do with you personally.

Last, but of greatest importance,is the Billy club which is often used as a pretendering agent for testilying before and at trial.
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Ninja (profile), 21 Jul 2014 @ 5:33am

Mr Bloomberg's private army doesn't have to follow petty things like the law, eh?
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Groaker (profile), 21 Jul 2014 @ 1:15pm

Of course they follow the law. It is just made up as they go along.
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Groaker (profile), 24 Jul 2014 @ 5:58am

There are any number of local laws on the books that are, and have been unconstitutional since their inception. One example that immediately comes to mind, is that there are still six or seven states where it is illegal for an atheist to hold an elected office. Clearly unconstitutional under the standard of "no religious test for office." But law suits are still being used in an attempt to steal electoral victories from atheists.

In the real world of "law" enforcement, refusal to provide such information may result in arrest or a beating. The arrest may not be too bad if you have the funds, time and temperament to bring a lawsuit against the offending agency. That of course assumes that the arresting officer doesn't invent pile on charges that can put you away for 7 years or more (your chin smashed my gloved hand).

A beating is much more problematic in that it can lead to life long damage as well as a guilty verdict for assaulting an officer (fabricated or not.)

The courts are pretty much meaningless. The mighty patent office just told SCOTUS to go screw, and it will grant patents on whatever basis it feels like. The Congress won't even act when hearing witnesses from the FBI get up and walk out of a hearing because they don't like the questions.

We live in a society run by a (usually) velvet coated jack boot.
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