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N.Y. Law Protects Public’s Right to Record in Police Precinct Lobbies

In yesterday’s Reyes v. City of New York, Judge Jessica Clarke (S.D.N.Y.) (appeal pending) held that the First Amendment “right to record police conducting official duties in public places” doesn’t apply to police precinct lobbies: They are “nonpublic fora” where restrictions on First Amendment activity need only be viewpoint-neutral and reasonable, and bans on recording in such places are reasonable in light of the government’s “privacy, safety and security interests.” But it held that New York law protects such recording:

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.

Similarly, the New York City Right to Record Act (“NYC RTRA,” together with the NYS RTRA, the “Right to Record Acts”), enacted on August 14, 2020, states that “[a] person may record police activities and maintain custody and control of any such recording and of any property or instruments used in such recording.” The law further provides that “[n]othing in this chapter shall be construed to permit a person to engage in actions that physically interfere with an official and lawful police function, or to prevent the seizure of any property or instruments used in a recording of police activities where the seizure is otherwise authorized by law, or to prohibit any officer from enforcing any other provision of law.” …

[T]he broad, straightforward provisions of the Right to Record Acts mean what they say: people can record the police….

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. “Access to information regarding public police activity is particularly important because it leads to citizen discourse on public issues ….”

Plaintiff is represented by Andrew Claude Case and Meena Oberdick of LatinoJusticePRLDEF.

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November 2023
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