New York District Court Denies Immunity To NYPD Officers Who Arrested A Citizen For Filming Them

from the no-immunity-for-deliberate-obtuseness dept

Some NYPD officers have continued to cling to the belief that citizens aren’t allowed to film them, despite plenty of documentation otherwise. A letter issued to the Baltimore PD, but that CC’d law enforcement in general noted that “the justification for [filming police] is firmly rooted in longstanding First Amendment principles.” (The footnote appended to this added: “There is no binding precedence to the contrary.”) The NYPD’s own Patrol Guide states this:

“[T]aking 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.

The NYPD’s chief of federal litigation likewise reminded officers that bystanders could film police officers provided they didn’t interfere with duties or operations.

It would seem to be clearly established (including decisions to this effect from all but one circuit court in the US) and yet certain officers are still shutting down citizens with cameras and arresting them on clearly bogus charges. The NYPD is currently facing a lawsuit from the ACLU that hopes to obtain a ruling declaring this activity to be covered by the First Amendment. That lawsuit may ultimately prove to be extraneous as the Southern District of New York (which oversees New York City) has now confirmed that citizen recordings are protected First Amendment activity.

The facts behind the suit are this:

Douglas Higginbotham was covering the Occupy Wall Street protests for a New Zealand TV station. While shooting footage from atop a phone booth, he was ordered to get down by NYPD officers. He attempted to climb down but there were too many people crowded around the booth. So, the cops dragged him down by his feet, damaging his camera in the process. He was then cuffed with zip ties for three hours (and sprung from them with a butter knife because the NYPD is apparently more interested in the cuffing process than the releasing process) and charged with disorderly conduct.

Higginbotham claimed the arrest was performed in retaliation for his filming police officers, and as such, was a false arrest. The NYPD countered by claiming Higginbotham’s supposed “failure to disperse” justified the charge. The court found otherwise:

The parties dispute whether, as a journalist covering the protest, Higginbotham can properly be said to have been “congregating” with the protesters within the meaning of the statute. The Court need not resolve this question, however, because there is a different reason why the statute does not cover Higginbotham’s conduct: the defendants’ order for Higginbotham to climb down from the telephone booth was not an order to “disperse.” That word, as used in the statute, means “[t]o separate, go different ways.” Oxford English Dictionary (2d ed. online version Mar. 2015). There is no allegation that Higginbotham was ordered to “separate” himself from the rest of the crowd, by leaving the scene of the protest. On the contrary, as alleged, the defendants instructed that he climb down from the phone booth into the crowd. Further, “[a] group can disperse; an individual cannot.” Because the defendants’ order was directed at Higginbotham alone, it could not be an order to disperse.

The NYPD also raised a variety of other justifications for this arrest (including potential damage to the phone booth and creating a “hazard” by his being on top of the phone booth) but these were also dismissed as inapplicable by the judge. The department also claimed that, even if there were no legitimate reason to arrest Higginbotham, the officers were entitled to qualified immunity.

In support of qualified immunity, the defendants merely summarize their version of the facts and assert that “the officers were objectively reasonable and patently not incompetent.” (Defs.’ Br. 12.) At the summary judgment stage, they will have the opportunity to try to demonstrate this by submitting evidence showing that reasonably competent officers in their situation could have at least disagreed on whether probable cause existed. Based solely on the complaint, however, the Court cannot conclude that this must have been the case.

Finally, the court addresses the First Amendment issue, and here the NYPD officers again attempt to claim immunity.

The defendants further assert that they are entitled to qualified immunity because the right to record the police is “insufficiently defined.”

The “no one directly — at that moment — told us not to” defense is one that should be undermined considerably by statements and policies issued by the NYPD itself. The court doesn’t need a copy of the Patrol Guide to arrive at the same endpoint.

The Court concludes, however, that the right to record police activity in public, at least in the case of a journalist who is otherwise unconnected to the events recorded, was in fact “clearly established” at the time of the events alleged in the complaint. When neither the Supreme Court nor the Second Circuit has decided an issue, a court “may nonetheless treat the law as clearly established if decisions from . . . other circuits ‘clearly foreshadow a particular ruling on the issue.’”

The court then goes on to point out that the First Amendment rights the officers claimed were “insufficiently defined” had been clearly established by years of precedent rulings.

Certainly, the right to record police activity in a public space is not without limits, and some uncertainty may exist on its outer bounds. For instance, it may not apply in particularly dangerous situations, if the recording interferes with the police activity, if it is surreptitious, if it is done by the subject of the police activity, or if the police activity is part of an undercover investigation. As alleged, however, Higginbotham’s conduct falls comfortably within the zone protected by the First Amendment. The complaint alleges that he was a professional journalist present to record a public demonstration for broadcast and not a participant in the events leading up to the arrest he was filming. There is nothing in the complaint suggesting that his filming interfered with the arrest. Accordingly, and in light of the case law consensus described above, a reasonable police officer would have been on notice that retaliating against a non-participant, professional journalist for filming an arrest under the circumstances alleged would violate the First Amendment.

Now, this is still far from the final ruling, so there’s no precedent specific to the NYPD’s territory set at this point. But the court’s denial of qualified immunity in respect to Higginbotham’s First Amendment claims serves notice that future assertions of well-meaning, not-patently-incompetent ignorance won’t be entertained by this court. The plaintiff’s suit will move forward and the officers accused of taking retaliatory action against a photographer will have to move right along with it. I would expect a settlement in the near future if the NYPD wishes to prevent the Second Circuit from joining the rest of the circuit courts in establishing a First Amendment right to record.

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Comments on “New York District Court Denies Immunity To NYPD Officers Who Arrested A Citizen For Filming Them”

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sorrykb (profile) says:

I would expect a settlement in the near future if the NYPD wishes to prevent the Second Circuit from joining the rest of the circuit courts in establishing a First Amendment right to record.

I’m torn between hoping for a settlement (for the benefit of the photographer) and hoping that the Second Circuit will have this opportunity.

I’m also profoundly grateful to the court for this defense of the English language:

Further, “[a] group can disperse; an individual cannot.”

G Thompson (profile) says:

Re: Re:

I was wondering about the settlement myself.

Especially if the photographer in question is an actual New Zealander too. He might turn around and actually refuse any settlement and take this all the way on grounds of ‘principle’.. A word that strikes terror into any suit against government wrongdoing.

Not too sure about US laws, but hopefully he cannot be forced into a settlement by the courts either.

Anonymous Coward says:

Re: Re: Re:

No, a settlement can’t be forced upon an unwilling participant in a lawsuit in the U.S., by a court.

Settlement negotiations happen confidentially between the lawyers for the two sides, and if the deal is good enough, a plaintiff’s lawyer will commonly pressure his client to accept. Also, there are ways that the lawyer can own the decision to accept an offer or not; it’s common when an insurance company is providing the lawyer (in defense) for them to offer and accept a settlement without regard to the client’s wishes, as allowed by the insurance contract. If the journalist’s lawyers are working on contingency (for a share of proceeds if they win), then the contract might give them the right to accept a settlement.

(It’s popular for contracts with big U.S. companies to have a clause requiring “binding arbitration”, which is kind of like a forced settlement by a referee (usually picked by the company) but this isn’t a contract case.)

DJ says:

Re: Re: Re:

US law does permit a court to force a settlement, but it requires that the offer for settlement is proved to be refused for the sole purpose of harassment, such as denying a settlement only to force the costs of the case to increase so as to force them to simply give up entirely. That’s one of the reasons why so many people set completely insane amounts for their initial lawsuit, because then they can simply claim that the settlement is refused because it’s not enough and it becomes virtually impossible to prove that any settlement being denied is done so on grounds to harass.

Haergen says:

Re: Re:

There’s an adage among street cops that:
“You can beat the rap, but you can’t beat the ride !”

… meaning cops can arrest anyone they please anytime– without any evidence or any hint of valid charges.
The courtroom judge will quickly dismiss the bogus charge — but meanwhile the innocent citizen has been handcuffed, roughly manhandled, humiliated, searched, personal possessions seized, fingerprinted/mugshot, and spends a night or two in a filthy jail with sordid jailmates. The “ride” (arrest process) itself is very strong punishment/harassment for most people — and the cops know it — so cops don’t need a judicial conviction to punish people that might p_ss them off)

Cops are rarely prosecuted for such behavior and very, very rarely convicted of their crime. Civil suits for false-arrest are slightly more common… but the cop’s employer (taxpayers) usually pays the legal fees and costs of any settlement. The cop usually continues on full salary, often on mandatory Administrative Leave (paid vacation). And it’s a huge hassle for the innocent citizen who has already suffered the “ride”.

Nothing will change this in the NYPD, no matter what the courts rule about recording cops. Only solution is to abolish the entire outrageous concept of police-immunity — everyone should be equal before the law in a free & just society.

Quiet Lurcker says:

Re: Much the way that officers routinely "Fear for their safety"...

I take it, non-cops are not allowed to fear for their safety? They’re not allowed to gather and preserve evidence of crime/civil tort/negligence, etc.?

I’m more worried about a cop becoming violent with me than J. Random Bystander over there. And if I do have to deal with the cops, if I can capture hard evidence (as video and/or audio recordings) I will, just to preclude the possibility of the cop lying on the stand.

Uriel238 on his damn phone says:

Re: Re: "Fear for their safety"

…is the go-to justification in court when a police officer guns down a civilian in dubious circumstances (e.g. A drive by shooting by officers in a cruiser of a twelve-year-old playing with a toy gun in a park). The officer says “I feared for my safety” and the grand jury dismisses, if the prosecutor even decides to prosecute.

And no, a civilian defendant of a murder charge would have to prove necessity. It’s a clear delineation within the two (three) tiered caste system that is the US.

It’s the premise of the police threat “Don’t make me fear for my safety.” the implication of which should be obvious.

That One Guy (profile) says:

Re: Re: Much the way that officers routinely "Fear for their safety"...

Oh non-cops are free to fear for their safety, it’s just that unlike cops, they’re not authorized to use lethal force to remove the source of the ‘fear’.

“I feared for my safety” is considered by a lot of US courts as full justification for gunning someone down on the spot, if the one saying it is a cop. Citizen making the same claim? Not so much.

Anonymous Coward says:

Re: Re: Much the way that officers routinely "Fear for their safety"...

That cellphone taking video evidence sure looked like a gun to me, said the cop before stomping an innocent. This ridiculous excuse has been attempted several times that I read about.. Not sure how or where this stupid shit started but there is even a pic of a really old nokia (that no one uses any more) that has been modified to appear as though it could fire a small cal round before it self destroys. And some cops then use this as the excuse that they feared for their lives while wearing bullet proof vests and being nowhere near enough for the crappy device to be effective.

Jonathan Corbett (user link) says:

Thank You & Correction

Thank you for covering this case — it’s important that the continuing police practice of “fuck anyone who is recording us” be exposed until it is destroyed.

One correction, though. The title calls it a “New York District Court.” It would be far more accurate to say a “U.S. District Court in New York” or “Federal Court in New York.”

Jeff Hermes (user link) says:

An historical note

I was recently reminded that the Southern District of New York in fact dealt with a very similar case back in the 1970’s, resulting in a stipulation & order in a case called Black v. Codd, No. 73 Civ. 5283 (JMC) (S.D.N.Y. Jun. 1, 1977). The following order, which as far as I know is still in effect against the N.Y.P.D., states in part:

“1. A person remaining in the vicinity of a stop or arrest (herein after an ‘onlooker’) shall not be subject to arrest for violation of Penal Law s.195.05 unless the officer has probable cause to believe a violation of Section 195.05 exists.

“2. None of the following constitutes probable cause for arrest or detention of an onlooker unless the safety of officers or other persons is directly endangered or the officer reasonably believes they are endangered or the law is otherwise violated:

“(a) Speech alone, even though crude and vulgar;
“(b) Requesting and making notes of shield numbers or names of officers;
“(c) Taking photographs;
“(d) Remaining in the vicinity of the stop or arrest.”

The remaining provisions of the order are also interesting, but I’ll stop there for brevity’s sake. For clarity, N.Y. Penal Law s.195.05 is New York’s law relating to “Obstructing Governmental Administration in the Second Degree,” which is different from the statutes invoked in this more recent case.

That said, the second paragraph I quote above isn’t limited to charges under s. 195.05. While there’s still a lot of wiggle room in the 1977 order, it’s interesting that the prior court order is lurking in the background of this matter.

k katsoner says:

dirty cops

I had never been stopped by a cop till I was in a car driven by a brown person.
I was very surprised to say the least when on our way to work on a monday morning at 7:35 am we were stopped by a cop car, and told hey didn’t you see what you did? Two young wht 20ish cops. My driver had quietly give them his Driver License, car Insurance, regisstration, etc. Nothing had happened no stops light or sign. NOTHING. So they said to him we have decided to be GOOD Guys and ticket you for this and that, as they laughed. I got out of the car and said in a very ugly way while chewing nails you write that ticket and you will regret is.
They stood in silence, put away their little ticket book and left. Their just the school yard bulies with a badge.

Rekrul says:

Nothing will ever change.

Until cops can be personally held accountable for their actions and have to pay settlements out of their own pockets, they will continue to harass people at will. Until they are actually prosecuted (and convicted) of murder for shooting unarmed suspects they will continue to shoot people at the merest suspicion that the person might have a weapon.

Those changes will never happen. Not only will the police themselves fight such changes tooth and nail, there’s not a single politician in the entire country who would vote for such changes.

The system is rigged and there’s no way to change it. 🙁

DB (profile) says:

We can be pretty certain that the city will leap in with a generous settlement offer when the officer is denied immunity for part of their actions. They’ll do it to preserve the power to extra-judically punish, and they’ll do to keep the police union happy.

As for the phrase “professional journalist”, I read that as a reinforcement that this was unambiguously a non-participant, not that the right to record was limited to professionals. The police acted egregiously. They didn’t act relying on a precedent that happened to be inapplicable or outdated. They acted knowingly illegally.

This actually strengthens the case for non-professional photographers. It shows that the police aren’t falling on the wrong side of a judgement call, they are willing to act illegally with any photography.

nasch (profile) says:


The defendants further assert that they are entitled to qualified immunity because the right to record the police is “insufficiently defined.”

It’s distressing, though not surprising, that the police viewpoint is that we have only those rights that are sufficiently defined. The proper approach is that the police have only those powers that are explicitly defined, and we have the right to do anything not explicitly proscribed by law. On re-reading this, it seems blatantly, stupidly obvious but apparently that is not how the NYPD sees it.

For instance, it may not apply in particularly dangerous situations, if the recording interferes with the police activity, if it is surreptitious, if it is done by the subject of the police activity, or if the police activity is part of an undercover investigation.

Particularly that fourth one – the exception for the subject of activity – is very disturbing. Bystanders are permitted to record the police, but the person police are questioning/harassing/tasing/beating/shooting is not? Is there some legal basis for that statement, because it sounds completely wrong, and I hope it is. Making surreptitious recording of police illegal (or at least not protected by the 1st amendment) also sounds bad, but not quite as bad.

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