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Photography in the New York City Transit System


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.


Bulwer-Lytton, Edward. “Richelieu: or The Conspiracy. A Play In Five Acts”. Act II, Scene II. 1839. Samuel French. New York. 112 Nassau St.;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 yAWl0LS5BA&usg=AFQjCNFD2utxb2GoiMU-wbPVJ1wg94WhOA

Constitution of the United States of America.

Dwyer, Jim. “No Photo Ban In Subways, Yet An Arrest”. New York Times. 18 Feb. 2009. pg A21.

Notice of Proposed Rulemaking. New York State Register. Nov. 2004. pg14-16.

NPPA. “MTA To Remind Cops: Photography Is Not Prohibited”. 17 Mar. 2006.

People v De Bour. Court of Appeals of New York . Argued April 1 and May 7, 1976 . Decided June 15, 1976 . 40 NY2d 210 .

Staff Writers. “Student Launches Suit Against NYPD For Photography Arrest”. NY1 News. 12 Jul. 2007.

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.

Title 21 New York Codes, Rules and Regulations. 1050.9(c). ei=apP6ScWFOqCltge9qJCRBw&usg=AFQjCNE2OZybC8_G2Dc___UMhRb9sOH8Tw

Combat, Futility, Stoicism


Combat, Futility, Stoicism

By Philip Forrest

April 22, 2009

   Socrates said that “To fear death… is no other than to think oneself wise when one is not, to think one knows what one does not know.” A Marine sitting in an abandoned Iraqi house with his back against a wall, just below a window during a lull in a firefight often thinks the converse. The warrior doesn’t know per-se what is on the other side of death, but that he is ready to find out if only to escape the present horror. This way of thinking and way of life sticks with most people who have seen combat. It creates pacifists from people filled with hate; it destroys one’s own faith and creates a new one predicated on basic questions of what it is to be human.

   The Epic of Gilgamesh showed the futility of struggle against what is inevitable. Wandering the wilderness in a search for everlasting life, Gilgamesh finds the key, has his hand upon it only to have it stolen by a serpent. Combat-induced Post Traumatic Stress Disorder has the power to take away that desire to struggle, even to stay alive. The vilified serpent of Gilgamesh and the Old Testament always lurks in the mind of the warrior who suffers from PTSD, not to steal everlasting life, but to just steal life itself.

   The modern warrior suffering from PTSD has a host of tools to aid in recovery of their life. The questions and feelings are timeless though. Surrounded by death and destruction, warriors throughout history share basic philosophies which bring up the same questions. “Why do we fight?” “Why am I here, now?” “Why did I survive?” These mull about in the mind to the point of obsession in some. Termed as “Survivor’s Guilt” the last question often leads to what Freud would describe as Thanatos, the “death wish.” PTSD suffering veterans have one of the highest suicide rates of any group and this question is one factor in that decision to take one’s own life.

   Along with the “death wish” is the nagging, ever-present feeling that there is no future. Conditioned by months or even years of constant anxiety and the imminent threat of death at any time during the conflict, the warrior returns home to believe that there is no life beyond this moment. This “truth” of the veteran warrior is their very state of existence. That the inevitable death will come soon and when it does, the veteran will be ready.

   As a veteran of the current conflict in Iraq, covering what many have described as the fiercest battle the military has fought since Hue City in Vietnam, I suffer from combat PTSD. The questions of my very existence and my place in the world run through my head constantly. I am on guard against every conceivable threat but feel that death is soon to come. This anxiety is a natural defense mechanism during conflict and when it doesn’t abate afterwards it becomes PTSD.

   My personal rhetoric towards several of the writings covered in this course is one with a thought of futility. Gilgamesh, Socrates, Hamlet and the DuBois essays read with an all-encompassing theme of futility in spite of great hardship and struggle. This futility I see the most in The Epic of Gilgamesh and Plato’s Dialogues.

   Gilgamesh toils after the death of Enkidu on order to find everlasting life. In spite of his struggle, he fails. This drama plays out every day in Iraq and is driven home by funeral after funeral. The death of friends becomes a grim lottery and we all wonder when we will be released of the anxiety by having our number chosen. With the siege of Fallujah now 4½ years in the past, that anxiety still stays with me every minute. The edgy, restless thoughts have now been replaced by a grim malaise. Like Socrates in a jail cell, I’m condemned to death. When, I don’t know, but it looms in the near future for me as it does for so many combat vets. This is not a desire to die or suicidal ideation, but a greater knowledge that as death is inevitable, it may be immediate. It may be now.

   As Gilgamesh went on after having the root of eternal life stolen from him, I’ve moved on. Not to become a king in the cradle of civilization, but to realize and know that life is precious. To have empathy and compassion for everyone and everything. Resigning myself to the thought that if my life is to be taken from me in the near future, I must do what I can to make life better for those around me. From the people I cherish dearly to the people I disdain, I interact with when possible, forgive when possible and take photos of everything always. Combat PTSD has shown me a different way to look at life and through this lens I’ve read futility into these readings but with that futility comes a greater stoicism and sense of purpose.

   Socrates can be called a father of philosophy and his teachings were a paradigm shift for the whole world. Socrates made his mark on the world before his trial, not afterwards as did Gilgamesh following his trek through the wilderness. His principles of piety and justice overrode any sense of personal preservation. I’ve incorporated this into my own life somewhat, putting myself last often for the benefit of others. This self-sacrifice ethos comes from the thought that if I’m to only live for a short amount of time more then I should help to better the world in any way I can.

   While reading these two sources, among the others, I’ve tempered my fatalistic attitude a bit and resigned myself to a life of struggle, not for everlasting life but just to live a good one.