Testimony Before City Council Public Safety Committee Re: the Right to Record Act

The New York Civil Liberties Union (“NYCLU”) respectfully submits the following testimony in support of Intro. 1235, the Right to Record Act. We also offer comments in support Intro. 541-C, a key component of the Right to Know Act, and in opposition to Intro. 182-D, both of which are before the Council as this legislative session comes to a close.

The NYCLU, the New York state affiliate of the American Civil Liberties Union, is a not-for-profit, non-partisan organization with eight offices across the state, and over 160,000 members and supporters statewide.

The NYCLU’s mission is to defend and promote the fundamental principles, rights and constitutional values embodied in the Bill of Rights of the U.S. Constitution and the Constitution of the State of New York, including the rights to monitor and document police activity and to be free from discriminatory and abusive tactics in law enforcement. The Right to Record Act will codify and strengthen these protections in New York City.

The First Amendment to the U.S. Constitution protects a person’s right to record the police in public. This is among the most direct and participatory forms of public oversight, and it can serve as a necessary check against official misconduct.

In recent years, bystander-recorded footage of the police killings of Eric Garner, Walter Scott, Alton Sterling, and Philando Castile focused national attention on the systemic targeting of communities of color by law enforcement and, at least in the case of Mr. Scott, played a key role in holding an officer accountable. As smartphones have become more and more a default feature of everyday life, there have never been more opportunities for the public to quickly and easily document police activities.

Recognizing the power of video to tell an often unseen story about the impact of discriminatory policing, the NYCLU developed “Stop and Frisk Watch” at the height of then Mayor Bloomberg’s hyper-aggressive stop-and-frisk regime. This mobile app empowered New Yorkers to turn their phones into tools to document abusive police stops and expose the New York Police Department (“NYPD”) practice for what it was: unconstitutional racial profiling.

The app also allowed us a look into NYPD officers’ aggressive tactics to stop and prevent New Yorkers from filming them, something we have known and experienced for many years. We heard countless stories of officers interfering with cameras, knocking them out of people’s hands, shining lights into the lens, threatening photographers, or deliberately blocking the shot.

Indeed, our own executive director, Donna Lieberman, was threatened with arrest for attempting to photograph the activities of school safety officers on public property. Against such overt intimidation and aggression, every day New Yorkers have little hope of safely filming or photographing police.

With the current surge in protest activity across the city and state as New Yorkers continue taking to the streets to resist threats from Washington, the NYCLU regularly trains volunteers on how to put their First Amendment rights into action by documenting and recording police activities during protests and demonstrations. Yet we constantly have to remind people that, although they have the right to record, they may be at risk by exercising it.

The ability to document police activity—and to do so without intimidation or fear of unjustified arrest—is a critical means of exposing misconduct, creating independent and objective records of police encounters, protecting the ability to assemble and protest, and empowering the public to directly participate in the work of holding government accountable.

While the Constitution already protects the public’s rights to monitor and document police activity, we know the reality that rights are not always respected in practice. The City Council must ensure that our local laws reflect the importance of these fundamental principles. The Right to Record Act will declare, unambiguously, that this right exists in local law and make it easier for New Yorkers to seek redress for violations.

Unlawful NYPD Interference with Civilian Recording is a Persistent Problem

Long before the development of smartphones, the NYCLU fought to safeguard New Yorkers’ right to document NYPD activity. In 1973, we filed a class action lawsuit, Black v. Codd, on behalf of a group of journalists and citizens who had been arrested for filming or photographing officers.

The resulting consent decree in 1977 led to changes in the NYPD Patrol Guide confirming that people observing or documenting police activity shall not be arrested unless an officer has probable cause to believe that the person engaged in obstructing governmental administration by actually interfering with the officer’s work.[1]

The consent decree and Patrol Guide provisions further explain that a person’s speech alone, requests for or notation of an officer’s identity, taking of photographs, or remaining in the vicinity of an encounter cannot constitute probable cause, absent a risk to safety or some other violation of law.[2]

Despite these provisions, the right to record police activities has not been respected by NYPD officers. Journalists attempting to document police activities have frequently found themselves under arrest for doing nothing more than attempting to report on matters of public importance.

In November 2011, several news and advocacy organizations sent a letter to the NYPD describing numerous incidents in which officers interfered with, intimidated, assaulted, and detained individuals attempting to document demonstrations related to Occupy Wall Street.[3]

In August 2012, the National Press Photographer’s Association similarly informed the Department of an incident in which officers intimidated, assaulted, and arrested a photographer who was documenting an arrest in public.[4] Arrests of journalists have continued to occur at protests and demonstrations, including in the wake of the 2016 election.[5]

In the current climate where journalists are routinely subject to attack by a White House intent on discrediting a free press, safeguarding the ability of journalists to do their jobs without unlawful police interference is vital. 

Journalists are not alone in having been targeted for attempting to bring attention to important issues. In December 2012, at the close of a year in which nearly 533,000 New Yorkers were stopped by the NYPD, the NYCLU filed a lawsuit on behalf of a woman who, while causing no actual interference with police activity, attempted to film a stop-and-frisk encounter.

Instead of respecting her rights to do so, the officers shoved her, arrested her, and unlawfully detained her in a jail cell for 90 minutes, telling her, “This is what happens when you get involved.”[6] The message to members of the public who wanted to join the conversation about police reform and accountability was clear: exercise your rights at your own risk.

NYPD leaders have also demonstrated a dismissive attitude toward New Yorkers’ fundamental rights. Former NYPD Commissioner Bill Bratton notably cast members of the public who filmed NYPD activities as contributing to an “epidemic,” suggesting in May 2016 that civilians engaging in constitutionally protected activity bore responsibility for the escalation of law enforcement encounters.[7]

In the wake of these comments, the NYCLU and others expressed concern about the disconnect between official policies on paper and statements from Department leadership that undercut those policies’ effectiveness.[8]

Without a mandate to systematically collect and report data on these incidents, it is difficult to know the full extent to which New Yorkers’ rights are being violated. In June 2017, the Civilian Complaint Review Board (“CCRB”) issued a report examining complaints of police interference with civilian recordings from January 1, 2014, through December 31, 2016.

Of 257 such complaints during this period, the CCRB substantiated nearly one-third.[9] The CCRB warned that the Department needed to do more to address this behavior by officers as members of the public record police activities with ever greater frequency.[10]

The CCRB concluded its report by noting that its analysis was necessarily limited by its inability to investigate incidents of interference that went unreported.[11] Although we lack reliable quantifiable data in this area, we are well aware of widespread unlawful NYPD interference with the recording of police activities, through requests we receive for legal assistance and through our relationships with community partners who engage in organized cop-watching.

For these reasons, the NYCLU enthusiastically supports the Right to Record Act’s detailed reporting requirements, which will bring a powerful measure of transparency to NYPD practices and, crucially, uncover any racial disparities in such practices.

The Right to Record Act Complements the Existing Right to Record Police Activities Under the First Amendment

While neither the U.S. Supreme Court nor the Court of Appeals for the Second Circuit have directly addressed the issue of a person’s right to record police activity, a growing consensus of circuit courts throughout the country have found this right to be protected under the First Amendment.[12]

In the absence of binding precedent in New York, federal district courts in the Southern and Eastern Districts have trended toward recognizing such a right in recent cases.[13] Other judges in the Southern District, however, have held that defendant police officers were entitled to qualified immunity from suit in these cases, reasoning that the right had not been clearly established in this circuit, but without actually addressing the merits of whether the right exists.[14]

Passing the Right to Record Act will send a clear message that New York City recognizes and affirms the existence and importance of this right.

The right to record police activities is clearly established under the First Amendment. The NYPD is aware of this, at least according to Department documents on the topic. On August 6, 2014, the NYPD issued a FINEST Message to all commands reminding officers that members of the public may legally record police interactions and that interference with recording by the officer “violates the First Amendment.”[15]

In April 2016, the Department’s Legal Bureau issued a detailed legal bulletin, clearly stating that “the First Amendment provides citizens the right to observe and record police officers carrying out their duties” and that the public has “the right to monitor and criticize the police.”[16]

Yet there is still value in the Council acting on this issue. This legislation removes any potential doubt as to the existence and protection of that right here in New York City. It communicates loudly that we are a city that values both the First Amendment and our residents’ and visitors’ rights to hold police accountable.

New Yorkers should not have to wait for a perfect legal case to reach the Second Circuit when our elected officials have the ability to take action now. To the extent this bill’s provisions are already in force when such a case presents itself, it would help that court better understand the established nature of the right at issue, and better position that court to provide the full measure of accountability to address officer misconduct.

The City Council has not shied away from incorporating clearly established constitutional rights into local law in other contexts. In 1994, the Council passed legislation—later strengthened in 2009—prohibiting interference with access to reproductive healthcare facilities, while noting that this right was already protected by state and federal law.[17]

Like the Right to Record Act, the legislation included a private right of action, creating a local mechanism to enforce an existing right. Similarly, in 2013, the Council passed Local Law 71 as part of the Community Safety Act, which included a ban on bias-based profiling by law enforcement along with a private right of action.[18]

In upholding that law against a preemption challenge, the First Department described the law as intended to “give effect to the right to ‘equal protection of the laws’ found in the Fourteenth Amendment and its New York Counterpart.”[19]

Both of these instances demonstrate the Council’s ability and prior willingness to codify and build upon existing constitutional protections, and in doing so, to make them more readily accessible to and enforceable by New Yorkers here at home. The Council must take similar action now to codify and enhance local enforcement options to safeguard the right to record police activities.

Pass Community-Backed Intro. 541-C and Reject Intro. 182-D

Before this Council’s term ends, members of this committee and of the Council as a whole will be asked to vote on two bills that have collectively been referred to as the Right to Know Act. Unfortunately, only one of these bills still deserves to carry that name and to be passed into law.

The NYCLU fully supports Intro. 541-C. This bill will require the NYPD to develop a policy to inform people of their constitutional rights regarding searches that are not supported by probable cause. It will ensure that the Department has mechanisms in place to document proof of a person’s knowing and voluntary consent to such searches.

We urge the Council to pass this important bill to improve the quality of policing in New York City and to enhance trust and accountability in police-community interactions.

The NYCLU does not support Intro. 182-D. Along with our community partners, the NYCLU had long supported earlier versions of this bill, which would have required NYPD officers to identify themselves at the start of non-emergency law enforcement encounters, provide an explanation as to why that encounter was taking place, and offer the person they were interacting with a business card at the end of any encounter not resulting in an arrest or summons.

This common-sense proposal was a direct response to the lived experiences of New Yorkers of color who were subject to repeated, unlawful abuse and harassment by the police and who were routinely denied the most basic information needed to hold officer accountable: the names of the officers who mistreated them.

Prior versions of this bill recognized that, no matter the context, interactions with law enforcement are inherently frightening and intimidating, particularly for communities who have endured the most aggressive and discriminatory policing tactics for decades. Even something as simple as a person asking for an officer’s name can feel too daunting a request to make, given the stark power imbalances inherent in these encounters.

Mandating that an officer provide this basic information upfront was seen as a practical way to remove this source of tension by deescalating interactions, put into practice the NYPD’s motto of “courtesy, professionalism, and respect,” and to demonstrate a legislative commitment to community policing that is actually based in the person-to-person building of police-community relationships.

The current version of this bill, however, no longer fulfills that purpose. Intro. 182-D has carved out the most common interactions that take place between NYPD officers and New Yorkers. While prior versions of the bill required officers to identify themselves during any non-emergency encounter involving investigative questioning, this latest version only requires officer identification when a person is “suspected of criminal activity.”

But officers don’t need to suspect people of criminal activity to approach them, disrupt their daily routines, question them, or harass them. New York courts have held that officers can approach people for investigative purposes, tell them to stop, ask them to produce identification, question them about where they’re going or items in their possession —without ever having enough real evidence or even suspicion to legally investigate them.

These types of encounters are the least transparent and the hardest to keep track of. There is no systematic accounting for investigatory encounters that do not rise to the level of reasonable suspicion stops, so it is impossible to know the full extent to which New Yorkers are subjected to these low-level encounters.

What we do know—and what our community partners have in abundance—are the countless examples of New Yorkers who have been profiled, harassed, and intimidated by police, even when they were never accused of or suspected of criminal wrongdoing. And what we do know is that officer misconduct does not depend on whether the person police interact with is suspected of criminal activity or not.

It depends on how the officer acts during that encounter. Because of the lack of any meaningful transparency in these situations, these are the types of interactions that are most susceptible to abuse and most in need of legislative intervention. By excluding them from coverage, Intro. 182-D allows officers to continue to hide behind anonymity and to exempt themselves from accountability for misconduct.

In addition, New Yorkers who identify as women are far more likely to experience these lowest level encounters, meaning that the bulk of interactions between officers and women will be exempt from this version of the law. In our current cultural climate, where each day brings new allegations of sexual misconduct by public officials, we cannot afford to ignore the experiences of New Yorkers who identify as women. The City Council must stand up for all New Yorkers by ensuring the police are held to the highest standard of professionalism in all encounters.

By any reasonable standard, the Right to Know Act should never have been viewed as a “controversial” proposal. It is not controversial for New Yorkers to know the names of officers who stop them. It is not controversial to require officers to state their names during traffic stops. It is not controversial to let people know the most basic reason why an officer has used the authority we have entrusted in them to stop and forcibly detain a person in their community, outside her home, or even inside the hallways of his own apartment building.

What is controversial is elected officials cutting deals behind closed doors and cutting the very communities behind legislative proposals out of the process. What is controversial is not being responsive to the New Yorkers who are most directly impacted by police misconduct and who will most directly feel the consequences of bad legislation becoming bad law.

This Council has just days to deliver on the promise its members were elected on four years ago: to reform discriminatory and abusive police practices. Passing Intro. 541-C will be one step toward the fulfillment of that promise, and we urge the Council to do so without delay.

Passing Intro. 182-D, however, would be a signal that the Council does not take seriously the daily, lived experiences of countless New Yorkers who are denied any chance for meaningful accountability when they suffer abuse by law enforcement. The NYCLU urges the Council to stand with New Yorkers by passing the community-supported Intro. 541-C and by rejecting Intro. 182-D.

CONCLUSION

We thank the Council for the opportunity to offer testimony today. We look forward to continuing to work with the Council to ensure that all New Yorkers are treated with dignity and respect in their interactions with law enforcement personnel.