Barry v. City of New York (Defending right to take photographs in NYC subway system)

This lawsuit defends the public’s right to take photographs in the New York City subway system without fear of being arrested or having to show identification to police. It was filed on Nov. 14 in U.S. District Court for the Eastern District of New York on behalf of plaintiffs Steve Barry and Michael Burkhart, railroad enthusiasts and photographers who were unlawfully arrested in August 2010 while taking photos of subway trains at the Broad Channel subway stop in Brooklyn. At the time, they were awaiting the arrival of a vintage subway train on display by the New York Transit Museum. They both were charged with unlawful photography, and Barry was handcuffed and charged with failing to produce ID in violation of a Transit Authority rule. The lawsuit argues that the arrests violated the plaintiffs’ constitutional rights. It also maintains that a Transit Authority’s rule requiring people using the city’s transit system to carry ID documents is unconstitutional. The City of New York, the Transit Authority and the NYPD officer who detained the photographers are named as defendants.

Barry and Burkhart, New Jersey residents, traveled to New York City on Aug. 21, 2010 for a scheduled run of one of the Transit Museum’s vintage subway trains. These exhibitions are popular among photographers. While waiting for the vintage train, the plaintiffs were taking photos of regular subway trains. A police officer approached them and told them that they were not allowed to take photographs in the subway system. Barry asked the officer to identity the city statute that they were violating. Instead, the officer demanded ID from both men. Barry gave his name and address but did not present identification. The officer handcuffed Barry and searched his pockets. Both men, who had never previously been arrested, were detained in the subway station’s waiting area for about a half hour. Barry was handcuffed the entire time.

Barry and Burkhart were issued summonses charging them with taking “unauthorized photos,” though the transit rule the officer cited states that photography is permitted in the transit system. Barry also was issued a summons for violating the Transit Authority rule requiring people to carry ID. The New York City Transit Adjudication Bureau later dismissed all the charges. As a result of their arrests, Barry and Burkhart have stopped coming to New York City to photograph in the subway system. On March 21, 2013, U.S. Magistrate Judge Cheryl Pollak ruled that the Transit Authority rule requiring people using the city’s transit system to carry ID is unconstitutional. 

E.D.N.Y., Index No. CV11-5533 (direct)