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An v. City of New York

United States District Court, S.D. New York

June 1, 2017

RUBEN AN, Plaintiff,


          Lorna G. Schofield United States District Judge.

         Plaintiff Ruben An moves for leave to file an amended complaint pursuant to Federal Rule of Civil Procedure 15(a)(2). The Proposed Amended Complaint (the “Complaint”) alleges Defendant City of New York (the “City”) has an unconstitutional policy of permitting NYPD officers to interfere with individuals who record them performing their official duties in public. For the following reasons, the motion is granted.

         I. BACKGROUND

         Familiarity with the allegations in the initial complaint, including those regarding Plaintiff's arrest and the procedural history, is assumed. See An v. City of New York, No. 16 Civ. 5381, 2017 WL 455434, ___ F.Supp.3d ___ (S.D.N.Y. Feb. 2, 2017). The following is based on the Complaint, and all factual allegations 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 began to film three NYPD officers talking to an individual on a sidewalk in Manhattan. The officers then arrested Plaintiff, who was also standing on the sidewalk, and he was charged with four counts of violating state law. Two counts were dismissed before trial, and in July 2015, a jury acquitted him of the other two counts. None of the NYPD officers involved in Plaintiff's arrest were disciplined for their treatment of Plaintiff.

         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 August 2014, the NYPD issued 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) police interactions. These interactions include arrest and other situations.” The Message 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 further alleges that as a result of the City's failure to train or supervise, NYPD officers routinely arrest or threaten to arrest individuals who record police activity. In support, the Complaint cites 47 lawsuits filed in the United States District Court for the Eastern and Southern Districts of New York between the years 2012 and 2016, as well as a few lawsuits before 2012, in which the plaintiff alleged that he or she was arrested while recording NYPD officers or that the officers interfered with the recording. The Complaint also cites 18 news articles published during the same time period, as well as a couple articles published earlier, that concern allegations of police interfering with individuals who record officers in public. The Complaint alleges that “these examples represent only a small fraction of the actual number of recent instances” in which NYPD officers have interfered with the First Amendment rights of individuals recording police activity.

         The New York City Civilian Complaint Review Board (“CCRB”), which investigates complaints against NYPD officers, found that 201 “fully investigated complaints” decided in 2014 and 2015 contained “one or more allegations of police interference with civilian recording of police activity; search of a device for a recording of police activity; deletion of a recording of police activity; and/or damage to or destruction of the recording device.” In 2016, CCRB received at least 77 reports containing allegations of officers interfering with recordings; it also received 23 allegations relating to “unlawful search of an electronic device” and 10 allegations relating to “deleting electronic information off a device.”

         Based on reports of police interference, the CCRB in or before October 2016 decided to prepare an “Issue-Based Report, ” which it calls the “bystander report.” The CCRB qualifies its Issue-Based Reports as follows: “The CCRB's investigation of complaints and data analysis sometimes reveals problems that go beyond specific acts of misconduct and suggest the need for a change in police department policy, procedures, or training. When this occurs, the board notifies the police commissioner and recommends solutions.” The CCRB indicated that it expected to issue the bystander report by the end of 2016. As of the date of Plaintiff's motion, the report had not been released.

         II. STANDARD

         “Leave to amend should be ‘freely give[n] . . . when justice so requires, ' Fed.R.Civ.P. 15(a)(2), but should generally be denied in instances of futility . . . .” United States ex rel. Ladas v. Exelis, Inc., 824 F.3d 16, 28 (2d Cir. 2016) (some internal quotation marks omitted). “A proposed amendment to a complaint is futile when it could not withstand a motion ...

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