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Ortiz v. City of New York

United States District Court, Second Circuit

January 2, 2014

ANIBAL ORTIZ, Plaintiff,
v.
CITY OF NEW YORK, et al., Defendants.

MEMORANDUM OPINION AND ORDER

JESSE M. FURMAN, District Judge.

On November 26, 2013, the Court ordered Plaintiff to show cause in writing, no later than December 6, 2013, why he should not be held in contempt or sanctioned for violating Local Rule 1.8 and other orders of the Court by surreptitiously recording the trial proceedings in this matter. (Docket No. 77). Plaintiff obviously received the Order to Show Cause, as he filed a Notice of Appeal from it dated December 23, 2013 (Docket No. 80).[1] Yet, the Notice of Appeal aside, he has not filed anything in response to the Order.

Local Rule 1.8 provides that, "[u]less authorized to do so by an administrative order of [the Court], no one other than Court officials engaged in the conduct of Court business shall bring any camera, transmitter, receiver, recording device, cellular telephone, computer or other electronic device into any courthouse." S.D.N.Y. Local Rule 1.8. Based on a review of the record, the Court finds that Plaintiff willfully violated this Rule and other orders of the Court by bringing an electronic device into the Courthouse and recording the trial proceedings, and concludes that sanctions are warranted.

On June 19, 2012, Plaintiff filed a motion - captioned "Notice of Motion to Stay" - seeking to enjoin court security officers from enforcing the Court's policy of requiring persons entering the courthouse without a valid attorney's pass to surrender their cellphones. (Docket No. 23). Plaintiff maintained that his "[F]irst Amendment right to record public servants in the course of their duty in a public space" was violated "[a]ny time" his cellphone was "taken from" him. ( Id. ). Only six days later, however, Magistrate Judge Gorenstein, to whom the case had been referred, denied Plaintiff's motion by endorsement, stating - in no uncertain terms - that "[t]here is no constitutional right to bring a recording device into a courthouse, " and citing United States v. Yonkers Board of Education, 747 F.2d 111, 113 (2d Cir. 1984). (Docket No. 25).

Despite that ruling, Plaintiff continued to insist that he had a right to bring his cellphone into the Courthouse. In advance of trial, the Court was advised by court security officers and representatives of the United States Marshal Service that on virtually every occasion that Plaintiff entered the Courthouse, he resisted their efforts to screen his property and protested their insistence that he surrender his cellphone. Furthermore, the following colloquy took place at the final pretrial conference held on November 13, 2013, when the Court asked Plaintiff for a telephone number at which he could be reached:

MR. ORTIZ: I usually have my phone on me at all times except when I am in this building, illegally confiscate my phone in this building. They present no precedence or authority to take my phone in the lobby because I have a lot of information for this case here which I could use at the time but they insist on kicking me out of the building if I don't give up my phone and I tell them I am exercising my rights to keep my property, my personal property on me and they don't seem to acknowledge that....
....
THE COURT:... [I]f have you an issue with respect [to the] court's rule that you have to surrender your phone that is something you can take up in a different forum. That is certainly a rule of the court and it is not one that I am free to relieve you of....
MR. ORTIZ: OK.
....
MR. ORTIZ: OK. Point of clarification, I've never seen any evidence showing that any of their administrative or any of the court order filed by the, whichever they're following, applies to me. I've never seen that evidence and it seems to be acting without lawful authority. My name is not on that order. I have a copy of that order and it applies to administrators and I am not part of the administration.
THE COURT: All right. Mr. Ortiz, again, that's something for a different time and a different place. We're here to -
MR. ORTIZ: Understood, your Honor.
THE COURT: - prepare for the trial. Can I just assure you that there is a rule of this court that people are not permitted to bring their telephones in and, generally, are supposed to show identification. Although, as a litigant before the Court you are, certainly, entitled to be here even if you don't have identification and we will ensure for the duration of the trial you are able to get in the building and will have access to the Court but I cannot override the rule about the telephone and you will have to surrender your telephone. So if ...

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