Student Arrested for Filming NYPD Precinct Wins $15,000 Settlement
- (Still from YouTube video of Thomas's arrest)
By Tom Isler
New York City will pay $15,000 to settle a lawsuit by a documentary filmmaker who was arrested in April of 2013 for filming the exterior of the NYPD’s 72nd Precinct in Brooklyn.
Justin Thomas, then a 29-year-old student in the social documentary program at the School of Visual Arts in Manhattan, was filming the precinct for his thesis film when a police officer demanded that he stop recording. When Thomas refused and asserted that he had a right to film the police station, the officer arrested him and confiscated a video card from his camera. Thomas was handcuffed and spent approximately two hours in custody. (The incident occurred on April 19, 2013, four days after the Boston Marathon bombing.) All charges against Thomas were dropped.
A friend of Thomas captured the arrest on film, which was posted on YouTube (below). The officer had taken only one of the camera’s two video cards, so Thomas retained a copy of the footage. Thomas appears at the 1:47 mark. The audio cuts in and out throughout the video. Thomas’s lawyers posted the video with the following explanation: “Low quality audio due to directional mike used in close quarters.”
On November 6, 2013, Thomas filed a Section 1983 civil rights lawsuit in the U.S. District Court for the Eastern District of New York, in which he alleged that the arrest violated his First, Fourth and Fourteenth Amendment rights. (Read the complaint.) The complaint also alleged that the NYPD has a policy or practice of “arresting individuals in retaliation for filming government buildings or filming the conduct of government actors, particularly police officers.” The complaint includes nine other instances in which the NYPD arrested individuals who were filming or photographing police activity. While direct infringements of First Amendment rights are actionable through Section 1983, Thomas also asserted that the police retaliated against him for exercising his free speech and press rights – the theory goes that the police retaliated against Thomas because they did not want him to film the police station – which itself could be actionable under Section 1983.
“One of the things that we’ve seen over the years is that the NYPD does not respect the rights of journalists and documentarians,” David B. Rankin, Thomas’s attorney, said in a statement to the press recorded by the the New York Daily News. (Read Rankin’s press release about the suit.)
The lawsuit was reported settled and dismissed on February 5, 2014. Rankin confirmed the settlement.
Accepting Thomas’s factual allegations as true, the arrest clearly violated Thomas’s First Amendment rights. Police are free to request that filmmakers stop recording, but taking affirmative steps to prevent filming, down to seizing memory cards, often will abridge freedom of the press or the exercise of free speech. In this case, Thomas asserts that he was lawfully present in a public space and had a right to photograph the building, which was in plain view. He recorded the images in a journalistic capacity as a filmmaker making a documentary about police abuse. (More on Thomas’s film below.) Thomas was not interfering with any legitimate law enforcement activity. Absent a reasonable, good-faith belief that the camera’s memory card contained evidence of a crime, the police probably could not have confiscated the card without a warrant, although the law is unsettled whether the police could have scrutinized the contents of the card in conjunction with an arrest without a warrant.
Still, police in different states use a number of different legal theories to justify arrests of individuals and journalists recording police activity. In some states, police have arrested videographers under wiretapping statutes, which often require the consent of the people being recorded. (In Pennsylvania, courts have refused to extend state wiretapping statutes to recordings of police exercising their official authority in public.) In other instances, police have used more general criminal statutes such as “obstructing an investigation,” “interfering” with an officer, or “obstructing” a street to justify arrests. In many cases, charges are dropped or dismissed, but the arrests probably have a deterrent effect on filmmakers who do not want to disobey police orders. (For a thoughtful analysis of these issues, along with citations to examples, see Seth F. Kreimer, Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record, 159 U. Pa. L. Rev. 335, 358-66 (2011).)
Thomas’s hour-long thesis film, “Truth Through a Lens” (link: Facebook page), tells the story of activist Dennis Flores, who himself has been documenting police abuse for more than a decade. In Thomas’s film, Flores recounts that he won a $270,000 settlement stemming from a police assault. See 10 minutes of the film on Vimeo.com.
Thomas’s film will screen at the Workers Unite! Film Festival in New York City in May.
Thomas was born in the Bronx and raised in suburban New Jersey. He graduated from SUNY Purchase in 2007 and has produced film and television about music and other performance arts, according to his bio on Vimeo.com.