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An v. City of New York

United States District Court, S.D. New York

February 2, 2017

RUBEN AN, Plaintiff,
v.
THE CITY OF NEW YORK, Defendant.

          OPINION AND ORDER

          LORNA G. SCHOFIELD, DISTRICT JUDGE

         Plaintiff Ruben An was arrested while filming on his cell phone New York Police Department (“NYPD”) officers. He sues Defendant City of New York (“the City”), alleging the arrest violated his First Amendment rights and seeking an injunction barring NYPD officers from arresting Plaintiff or others solely for recording police officers who are performing official duties in public. The City moves to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the following reasons, the motion is granted.

         I. BACKGROUND

         The following is based on allegations in the Complaint and the two video clips attached to the Complaint. All factual allegations in the Complaint are assumed to be true.

         A. Plaintiff's Recording Activity and Arrest

         Plaintiff “regularly record[s] police officers conducting their official duties in public.” He is also involved “with civic groups that organize their members to observe and film police officers in public” and has “taught community trainings on filming police officers.”

         On July 28, 2014, Plaintiff saw three NYPD officers talking to a man standing on a sidewalk. The officers, Bekim Becaj, Joseph Novellino and Michael Digiacomo, had seen the man lying on the ground, called an ambulance and were waiting for it to arrive. Plaintiff approached the area and began to film the interaction with his cell phone. Upon seeing that Plaintiff was recording, Officer Becaj told Plaintiff that he was “in the proximity of a police investigation” and ordered him to step back. Plaintiff, who was on the sidewalk, moved away from the officers. Officer Becaj advised Plaintiff that he was blocking the sidewalk and instructed him to step further away. Plaintiff complied with the request. Officer Becaj then attempted to stop Plaintiff from recording the interaction by warning that he would issue Plaintiff “a summons for disorderly conduct if anyone has to go around” Plaintiff. Plaintiff moved away such that he was “almost up against the side of the building” and “out of the way of pedestrian traffic.” He continued to film as several pedestrians walked by without needing to adjust their path to avoid Plaintiff.

         Officer Becaj told Plaintiff he had seen three people “divert around” him, asked for Plaintiff's identification and ordered him to stop recording. When Plaintiff continued to record, Officer Becaj arrested him with the help of Officers Novellino and Digiacomo. Officer Becaj did not approach another individual who was standing near Plaintiff and observing the interaction but was not recording the officers.

         Plaintiff was charged with one count of obstruction of governmental administration, two counts of disorderly conduct and one count of resisting arrest. In July 2015, a jury acquitted Plaintiff on all counts.

         Due to the arrest, Plaintiff did not record any police interactions for several months and then began to record “only rarely” until the conclusion of his trial. Plaintiff “gradually resumed” recording after his trial and now records “usually at least two times per month.” However, he records less frequently than before his arrest because he “fears future pretextual” arrests and prosecution for recording police officers. His “ongoing filming of public police activity” will “frequently bring him into contact with police [officers] in scenarios similar to the interaction he observed” the day he was arrested.

         B. The FINEST Message and Other Alleged Incidents

         In 2014, the NYPD circulated a document -- referred to as a FINEST Message -- that addresses “Recording of Police Action by the Public.” It states, “Members of the service are reminded that members of the public are [legally] allowed to record (by video, audio, or photography). These interactions include arrest and other situations.” It prohibits NYPD officers from “interfer[ing] with a person's use of recording devices to record police interactions” and states that “intentional interference such as blocking or obstructing cameras or ordering the person to cease . . . violates the First Amendment.” The Complaint alleges that the City has “not instituted any training, monitoring, or supervision to ensure that officers comply with” the FINEST Message. The Complaint similarly alleges no training or supervision has been implemented with respect to a 1977 consent decree by the City, filed in the Southern District of New York under the caption Black v. Codd, No. 73 Civ. 5283, which states that “[t]aking photographs” or “[r]emaining in the vicinity of” a stop or arrest does not “constitute[] probable cause for arrest or detention of an onlooker.”

         The Complaint alleges that NYPD officers routinely arrest individuals who record police activity. In support of this allegation, it cites six lawsuits filed in the United States District Court for the Eastern and Southern Districts of New York between the years 2012 and 2016 in which the plaintiff alleged that he or she was arrested while recording NYPD officers. Citing an article in the New York Times, the Complaint also alleges that, around 2015, an NYPD officer who had arrested an individual was himself “charged with official misconduct and lying on a criminal complaint” after a surveillance-camera video showed the officer “arresting [the individual] when he borrowed a phone from [a] friend and raised it to film the police as they searched [that individual's] friend.” The Complaint alleges ...


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