I released a post a few months ago that went over the question of whether, under California law, a bystander can make a recording of the police. For example, when the police are making an arrest, a detention, etc. I’m sure all of us have seen videos like this that have been shot on a smartphone.
In today’s post, I’m going to address that same question, except for New York. In other words, is it permissible under New York law to make a video or audio recording of the police while they are, for example, making an arrest, detaining someone, etc. As I described in my prior post, the governing law for California was signed into law in 2015 by then-Governor Jerry Brown and took effect January 1, 2016.
The governing law in New York is a bit newer. It was signed into law in in June 2020 by Governor Andrew Cuomo and adds a new section (section 79-p) to New York’s Civil Rights Law. Section 79-p itself has a subsection 2 which states the following:
“2. Right to record law enforcement related activities. 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, provided, however, that a person in custody or under arrest does not, by that status alone, forfeit the right to have any such recordings, property and equipment maintained and returned to him or her. Nothing in this subdivision shall be construed to permit a person to engage in actions that physically interfere with law enforcement activity or otherwise constitute a crime defined in the penal law involving obstructing governmental administration” (emphasis added)
The part that I’ve bolded and underlined above is of note because it explicitly says that a person has the right to make a recording of law enforcement activity. That right is, of course, subject to certain conditions (e.g. physical interference is not allowed, the recorder can’t be under arrest themselves for a crime, etc), but this is a notable difference from how California law phrases it. From my prior post, California’s laws — notably Sections 69(b) and 148(g) of the California Penal Code — only say that the fact that someone makes a recording of law enforcement does not, by itself, constitute a violation of law, probable cause to arrest the person, or reasonable suspicion to detain the person.
In other words, New York law explicitly says that recording is allowed. California law merely says it — again, by itself — is not prohibited.
Back to New York law again, Section 79-p of the Civil Rights law goes further in subsection 3 to provide for enforcement by civil law suit also:
“3. Private right of action. (a) A claim of unlawful interference with recording a law enforcement activity is established under this section when a person demonstrates that he or she exercised or attempted to exercise the right established in subdivision two of this section to record a law enforcement activity and an officer acted to interfere with that person’s recording of a law enforcement activity, including but not limited to, by:
(i) intentionally preventing or attempting to prevent that person from recording law enforcement activity;
(ii) threatening that person for recording a law enforcement activity;
(iii) commanding that the person cease recording law enforcement activity when the person was nevertheless authorized under law to record;
(iv) stopping, seizing, searching, ticketing or arresting that person because that person recorded a law enforcement activity; or
(v) unlawfully seizing property or instruments used by that person to record a law enforcement activity, unlawfully destroying, or seizing a recorded image or recorded images of a law enforcement activity, or copying such a recording of a law enforcement activity without consent of the person who recorded it or approval from an appropriate court.
(b) It shall be an affirmative defense to a civil action under subparagraphs (i), (iii) and (iv) of paragraph (a) of this subdivision that at the time of such conduct by an officer, such officer had probable cause to arrest the person recording such a law enforcement activity for a crime defined in the penal law involving obstructing governmental administration.
(c) A person subject to unlawful interference with recording law enforcement activities as described in paragraph (a) of this subdivision may bring an action for any violation of this section in any court of competent jurisdiction for damages, including punitive damages, for declaratory and injunctive relief, and such other remedies as the court may deem appropriate.
(d) In any action or proceeding brought pursuant to this section, the court may allow a prevailing plaintiff reasonable attorney’s fees and expert fees as a part of the costs which may be recovered. (emphasis added)
(e) Any action or proceeding brought pursuant to this section shall be commenced no later than three years after the date on which the violation of this section is committed.”
A few worthy points to note here:
- Subsection 3(a) says that you can enforce your right to record the police under New York law with a civil lawsuit. It looks to me the suit would allege an “unlawful interference with a recording of law enforcement activity”. A variety of damages are allowed, including punitive damages as well as declaratory and injunctive relief.
- The elements of “unlawful interference with a recording of law enforcement activity” are: (1) a person exercised or attempted to exercise their right to record law enforcement activity as provided for under subsection 2 of Section 79-p, and (2) an officer interfered with that.
- An officer can interfere with your right under subsection 2 by doing any number of things. Some examples are listed under subsection 3(a)(i) – 3(a)(v) and include: (1) acting intentionally to prevent the recording, (2) threatening that person in some manner for making the recording, (3) ordering the person to stop recording, (4) stopping, arresting, etc that person because they made a recording, and (5) seizing or destroying the recordings made without the consent of the person who made the recording. These are probably the most common or likely examples, in the estimation of the New York state legislature, but other acts will qualify also.
- If there was probable cause to arrest the person making the recording for obstructing governmental administration (i.e. Section 1905.05 of New York’s Penal Law), then that shall be an affirmative defense to such a civil suit.
- Attorneys fees and costs may be granted by the court in such a civil suit. Note that the subsection 3(d) uses “may” as opposed to mandatory language like “shall”. Attorneys fees and costs, therefore, are not guaranteed.
- The statute of limitations for a civil suit like this is three years after the date of the alleged interference.
As usual, this post is not meant to be a comprehensive or exhaustive discussion of the law. If you are going to rely on the information presented above, please do your own research. It is entirely possible that the law in New York might have changed in the time between when the post was written and when you’re reading it. Hopefully the legal authorities linked above provide you a starting point for that research. If you have a situation where section 79-p is going to be important, please do find an attorney in your area with whom you can discuss your case.
Because this post pertains to New York law, I need to recite the following: As of the date of this post, I do not maintain an office in New York state. Thus, under the terms of New York Judiciary Law section 470, I cannot represent clients in New York state. I encourage you to check the contact info section of my website because it is entirely possible that I do have an office in New York state at the time you’re reading this post. Even if I don’t and I cannot represent you, I encourage you to get in touch with me anyway just in case I happened to know a lawyer in New York to whom I can refer you.
Andy Chen
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