A freelance photographer who says he was arrested last year as he prepared to photograph police conducting a “stop-and-frisk” is suing the New York Police Department.
The November 2012 arrest was captured by a Reuters stringer who witnessed the incident. The incident is one of many in which photographers have been arrested while taking photos of police or police-related events, even though taking photographs in public spaces, including of the police, is protected by the First Amendment.
Angel Zayas says he was preparing to take a photo of what appeared to be plainclothes police officers frisking a Hispanic man outside the subway station at Grand Central Terminal when “an officer forcibly ejected him from the station for his planned photography and then arrested him in retaliation for verbally objecting to his ejection,” according to a filing by the New York Civil Liberties Union. Zayas is a freelance photojournalist who struggles financially, but has had photos published in Time Magazine and the Guardian newspaper, the complaint says.
According to Zayas, he told an officer when questioned that he was taking photographs as a member of the press. Police then allegedly asked him to leave and forcibly pushed him through the subway turnstile and up an escalator when he refused. Zayas said “You can’t eject me because I took photographs,” and the officer responded, “Actually, yes, I can,” according to the complaint. The officer later backtracked and said that Zayas had been standing too close to the frisk. He later told Zayas he was “acting like a fucking idiot,” and, “You ran your mouth too much. Now you’re being arrested,” Zayas alleges.
The incident came at the height of criticism over the aggressive and racially discriminatory use of stop-and-frisk by NYPD, later deemed unconstitutional racial profiling by a federal judge. Zayas points to at least seven other complaints filed against NYPD for similar incidents. Reports emerged last year that police beat, arrested, and seized the cameras of a New York Times photographer who was photographing a stop-and-frisk arrest in August 2012. And during Occupy Wall Street protests, journalists were frequently harassed and arrested by police.
The U.S. Supreme Court has repeatedly characterized public streets as the “archetype of a traditional public forum,” where First Amendment rights are most robust. Frequently, police skirt this constitutional protection by arresting journalists for trespass or other offenses. In this instance, it is not clear what the basis for the arrest was.
With the advent of cameras and recorders on phones and other devices, recordings of police have become increasingly common and revealed incidents of police brutality and excessive force, prompting some pushback from law enforcement with claims that audio recordings, and the audio component of video, violate state wiretapping laws. But moves to criminalize police recordings on this basis have been rejected. An Illinois law to make recording the police a felony was blocked by a federal appeals court in 2012.
More and more police departments, meanwhile, are instituting the use of body cameras and dashcam recordings from police cars. In one recent study, the use of body cameras was associated with a drastic reduction in the use of force.