Archive for May, 2009

Photography in the New York City Transit System

2009/05/01

Photography in the New York City Transit System. 

By Philip Forrest

May 1, 2009. 

  The New York City Metropolitan Transit Authority (MTA) system is funded by the fares of riders and by New York City taxpayer dollars. As it is publicly funded, all of the transportation assets are viewed as public property and as such, the public has every constitutional right afforded to them as on a city sidewalk. Every day, the MTA system is used millions of times by residents, commuters and visitors to New York City and every day thousands of photographs are taken on the platforms, at the stops, aboard buses and subway cars. Of these thousands of photographers, be they tourists, amateurs, hobbyists or professionals, many will be harassed by MTA employees or transit police.

   The constitutional rights of citizens, MTA regulations, case law, police procedures and training all need to be reexamined in order to change the cultural belief that photography is illegal on or in public transportation systems. With a reexamination of all these facets, new training regimens can be developed for employees and law enforcement officials, and the public can be made more aware of their specific rights while using the MTA system and feel more secure in knowing that taking photographs won’t lead to a fine or arrest.

   While the letter of the law states that abridging the rights of people on public property is unconstitutional, these rights are infringed upon every day with regard to photographers on or in the MTA system. The specific rights in question are contained in both the US Constitution Bill of Rights and the New York State Constitution Bill of Rights. The US Constitution 1st Amendment protects the freedom of speech, press and to peaceably assemble. The New York State Constitution Article I, Sections 8 and 9 protect freedom of speech, press (Sec.8) and assembly (Sec. 9). Further, the rights of people in the MTA system to be “secure in their persons… against unreasonable searches and seizures” is protected in the New York State Constitution Article I, Section 12, and in the 4th Amendment of the US Constitution. With all the legal backing of the highest laws in both state and federal governments protecting the rights of photographers in the MTA system, there are still many cases per-day in which a photographer is asked to cease taking pictures by employees or transit police and many of these incidents go unreported.

   The MTA has its own set of regulations designed to protect patrons while not infringing upon civil liberties. Formally, the MTA states that it regularly informs its employees and law enforcement officers that photography is permitted on all publicly accessible parts of MTA assets (NPPA). The MTA rules regarding photography which employees and police are responsible for knowing are contained in the New York Codes, Rules and Regulations – 21 NYCRR Section 1050.9(c):

“Photography, filming or video recording in any facility or conveyance is permitted except that ancillary

equipment such as lights, reflectors or tripods may not be used. Members of the press holding valid

identification issued by the New York City Police Department are hereby authorized to use necessary

ancillary equipment. All photographic activity must be conducted in accordance with the provisions

of this Part. ” (NYCRR.)

In spite of this regulation and the regular training which MTA personnel receive, there is perpetuation of a thought by patrons, transit employees and even police that photography on trains, buses and at stations is illegal.

   Photography in the MTA system was considered an asset to the city before September 11, 2001. Patrons of the subways and buses had been known for taking photos of unsafe conditions and bringing them to the attention of transit officials. After the 9/11 terrorist attacks, New York City and the nation as a whole has been in the grip of fears of terrorist attacks occurring again. This reaction has led to the public becoming hyper-vigilant and the State and Federal governments enacting legislation to protect citizens. Posters, billboards and audio announcements in the NYC subway encourage patrons to alert Transit Police in the case of any person engaging in what could be deemed as suspicious activity.

   The MTA has tried twice since 9/11 to amend 21 NYCRR Sec. 1050.9(c) but has failed both times. The most recent attempt was filed November 24, 2004 with the New York state register for the Transit Authority to outlaw photography to all but employed press photographers with proper credentials.

“In order to further enhance passenger security and safety, photography and video recording would be

prohibited except for members of the press holding valid identification cards issued by the New York City Police Department or where written authorization has been provided by NYCTA. [Section 1050.9(c)] ”

(NYS Register.)

  Ironically, the photography ban came just before the MTA was to announce the winner of its 2004 photo contest in which participants submit photos taken inside MTA stations and of MTA buses and subway trains. Using 9/11 as a precedent in the effort to protect citizens, the MTA’s amendments to the NYCRR were immediately labeled as an abridgment of the rights laid out in both State and Federal Constitutions. The American Civil Liberties Union (ACLU) and the New York Civil Liberties Union (NYCLU) both immediately prepared litigation and a petition against the MTA. The National Press Photographers Association worked with the ACLU and collected over 26,000 petition signatures to submit to the MTA. As an active protest a “shoot in” was organized early in 2005 during which thousands of supporting photographers and citizens took to the NYC subways with their cameras and began taking photos.

   In response to the pressure the MTA reviewed the proposed changes through the lens of constitutionality, the amendment was shelved and was withdrawn as it was deemed possibly unconstitutional. This change in rules never made it to trial but the rumor it started helped to perpetuate the thought that photography in the MTA system is prohibited. An effort to prohibit photography in the MTA system still exists with proponents citing 9/11 and increased security as the reason for no recent attacks. The Transit Police and New York City Police Department use several cases of arrests of photographers and dubious claims that in a roundabout way, those arrests thwarted further attacks by terrorists on New York city.

   Since the 9/11 attacks, harassment of photographers in the NYC subway system alone has become almost routine with several higher profile cases coming to public attention per year. Photographers are frequently warned by MTA employees that taking photographs is illegal and they will be fined or could be arrested.

   The most recent case occurred on February 12, 2009 involving Robert Taylor, an MTA employee who was arrested and detained for illegally taking photographs of the Freeman Street station in the Bronx. The photo charge was dropped but Taylor was also issued court summons for impeding traffic and disorderly conduct. In many of these cases, if the photographer has any knowledge of the MTA rules, the photography charge will be dropped but other charges such as those in Taylor’s case will go to court.

   The previous case of unlawful arrest of a photographer led to the NYPD being sued in civil court for both racial profiling and violation of Constitutional rights. The photographer is a half-Indian medical student named Arun Wiita who was attempting to compile a collection of photographs of every NYC subway stop. He was arrested on July 1, 2007, detained in handcuffs for almost an hour then let go (NY1). The arresting officer said that “the NYPD has to be extra careful these days” which Wiita took to mean that his skin color had something to do with the arrest (NY1). This case adds the facet of racial profiling in the paranoid post 9/11 city. NYPD and Wiita settled out of court only recently, costing taxpayers $31,501 (Dwyer).

   Harassment of photographers begins with being questioned by an officer. Here, the officer has a decision to make as to if the activity is suspicious and possibly criminal in nature. It is at this point where the disconnect exists between the law, law enforcement and the citizens.

   The precedent for suspicious activity warranting a stop comes from the 1968 US Supreme Court decision of “Terry v. Ohio”. The Supreme Court upheld the decisions of the lower courts that a reasonable suspicion of possible criminal activity is enough justification for an officer to question, detain and frisk a person. The defendant, Terry was followed by a plainclothes officer and forcibly detained after being patted down for weapons. The Court tried the legality of the detainment, search and seizure based solely upon the arresting officer’s suspicion.

“This scheme is justified in part upon the notion that a ‘stop’ and a ‘frisk’ amount to a mere ‘minor inconvenience and petty indignity,’ which can properly be imposed upon the citizen in the interest of effective law enforcement on the basis of a police officer’s suspicion. ” Chief Justice Warren (Terry v. Ohio)

This is known as a “Terry Stop” and has been cited in many court cases in which the detaining officer’s judgment of when to question, stop and frisk, and arrest and search. The Court made it very clear that an officer must be wary of the 4th Amendment rights of individuals being questioned but also that the safety of the officer must come into play (Terry).

In 1976 the New York State Court of Appeals cited “Terry” in the “People v. De Bour” decision that the officer can question and search whomever they wish.

“The basis for this inquiry need not rest on any indication of criminal activity on the part of the person of whom the inquiry is made but there must be some articulable reason sufficient to justify the police action which was undertaken. ” Judge Wachtler (People v. De Bour)

In “De Bour”, the defendant submitted voluntarily to the officers and the search revealed a weapon. Unlike “Terry” there was no forced detainment until the weapon was found and the arrest formally made. This case also revolved around the constitutionality of the stop itself with De Bour claiming that the presence of the officers blocking his path abridged his freedom to walk along the sidewalk and has become known as a “De Bour stop”. (De Bour).

   Both “Terry” and “De Bour” tried the freedom to be secure in one’s person and effects from unlawful search and seizure. While an officer questioning a photographer on a subway platform is testing that right, the right to freedom of expression, press and assembly are rarely called into question. With cases to fall back upon which tested the 4th Amendment rights, it is easier to pursue this path as a defense than claiming that one’s 1st Amendment rights were threatened as the latter can be interpreted many ways and can be subjective, while the detainments, frisks and searches have paper trails to follow in pursuit of legal action against law enforcement.

   The photographers questioned by Transit Police are being held to precedents in “Terry” and “De Bour” with regard to suspicious activity, but with no actual photographic case in the MTA system to use as precedent. As it remains up to the officer what is deemed suspicious or possibly criminal activity, the decision is purely subjective. A photographer using a camera in one of New York’s many historical subway stations is almost certainly not a nefarious person intent on the destruction of the train and disruption of services, ie. a terrorist. Holding a photographer’s activity up to the criminal cases “Terry” and “De Bour” is unfair as those police detainments and arrests both involved illegally possessed handguns. While a camera may be philosophically more dangerous to the activities of the state as “the pen is mightier than the sword” its use by railroad aficionados and street photographers isn’t dangerous by any means (Bulwer-Lytton).

   The use of standard police stop and detainment procedures with regard to the aforementioned court cases are also aimed at preserving the greatest amount of safety for the officer but fail to bring in the context of what the photographer is doing. A person who can be regarded as an artist, tourist, history buff or any number of monikers is being held to a procedure which is commonly used in police questioning of potentially violent people in potentially dangerous situations. While the security of police officers is of great importance, there is little need to use procedures such as these, often involving inadvertent humiliation of the detained photographer while the officer runs a background check and learns that they are in fact in the wrong to be detaining a peaceful person with a camera.

   Since all of the cases leading to arrest by Transit Police have been thrown out by the City courts, none has made it to trial to test the detainment against either State or US Constitution. This is why there is no precedent for these encounters and photographers being protected by the Bill of Rights in both constitutions instead are harassed for hours. The Bill of Rights only goes so far and instead of actually being protected against harassment, the lack of a “torch bearer” to see a case through prevents the real protection which the Bill of Rights affords. As the letter of the law is already there, no judge would allow a case which is simply a matter of freedom of expression, press and assembly to go to a higher court. The civil litigation that follows the incursion on 1st and 4th Amendment rights only has power for remuneration, not to test the system and standards which photographers are held to every day. With this protection that citizens have under both constitutions, the photographer is forced to “grin and bear” the detainment and possible arrest as well as legal fees of other superfluous charges. The solution to this issue is better comprehensive training of MTA employees and Transit Police as well as a campaign to educate the entire populace. The detainment of photographers in public transportation assets isn’t a New York City only issue. It is a culture of fear in all of America in the post 9/11 world that perpetuates itself through ignorance on the part of law enforcement and the citizens they serve. The people in every metropolitan area need to be educated on their local laws, state constitution and the US Constitution in order to know how to protect their own rights.


Bibliography

Bulwer-Lytton, Edward. “Richelieu: or The Conspiracy. A Play In Five Acts”. Act II, Scene II. 1839. Samuel French. New York. 112 Nassau St.

http://quod.lib.umich.edu/cgi/t/text/pageviewer-idx?C=moa;cc=moa;rgn=full%20text; idno=AAX3994.0001.001;didno=AAX3994.0001.001;view=image;seq=00000001

Constitution of the State of New York. Department of State , Division of Administrative Rules . Albany, NY 12231-0001

http://www.google.com/url?sa=t&source=web&ct=res&cd=3&url=http%3A%2F %2Fwww.dos.state.ny.us%2Finfo%2Fconstitution.htm&ei=5ZD6SazbMYOI yAWl0LS5BA&usg=AFQjCNFD2utxb2GoiMU-wbPVJ1wg94WhOA

Constitution of the United States of America. http://www.usconstitution.net/const.html

Dwyer, Jim. “No Photo Ban In Subways, Yet An Arrest”. New York Times. 18 Feb. 2009. pg A21. http://www.nytimes.com/2009/02/18/nyregion/18about.html?_r=1

Notice of Proposed Rulemaking. New York State Register. Nov. 2004. pg14-16. http://www.dos.state.ny.us/info/register/2004/nov24/pdfs/rules.pdf#page=14

NPPA. “MTA To Remind Cops: Photography Is Not Prohibited”. 17 Mar. 2006. http://www.nppa.org/news_and_events/news/2006/03/mta.html

People v De Bour. Court of Appeals of New York . Argued April 1 and May 7, 1976 . Decided June 15, 1976 . 40 NY2d 210 . http://www.courts.state.ny.us/REPORTER/archives/p_debour.htm

Staff Writers. “Student Launches Suit Against NYPD For Photography Arrest”. NY1 News. 12 Jul. 2007. http://www.ny1.com/Default.aspx?SecID=1000&ArID=76306

Terry v. State of Ohio. No.67. (392 U.S. 1, 88 S.Ct. 1968). Supreme Court of the United States. Argued Dec. 12, 1967. Decided June 10, 1968.

     http://www.soc.umn.edu/~samaha/cases/terry%20v%20ohio.html

Title 21 New York Codes, Rules and Regulations. 1050.9(c). http://www.google.com/url?sa=t&source=web&ct=res&cd=3&url=http%3A%2F%2Fwww.tmk.com%2Fnycrr%2Fnycrr.pdf& ei=apP6ScWFOqCltge9qJCRBw&usg=AFQjCNE2OZybC8_G2Dc___UMhRb9sOH8Tw

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