Relates to recording certain law enforcement activities; provides that a person not under arrest or in the custody of a law enforcement official has the right to record police activity and to maintain custody and control of that recording and of any property or instruments used by that person to record police activities, however, a person in custody or under arrest does not, by that status alone, forfeit such right to record.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A1360A
SPONSOR: Perry TITLE OF BILL:
An act to amend the civil rights law, in relation to recording certain
law enforcement activities
PURPOSE:
The purpose of this legislation is to unambiguously affirm, by statutory
enactment, the right of New Yorkers to record, with expressed
exceptions, the actions of persons acting under the color of law.
SUMMARY OF SPECIFIC PROVISIONS:
Section one of the. bill provides that the act shall be known as the
"New Yorker's right to monitor act."
Section two of the bill adds § 79-p to the civil rights law entitled
"Recording certain activities." This section includes: definitions;
delineates the right to record law enforcement related activities;
creates a right of action for persons who suffer an unlawful abridgement
of their right to record and an affirmative defense for persons charged
with a violation of this right; and preservation of rights.
Section three of the bill includes a severability clause. Section four
of the bill provides the effective date.
JUSTIFICATION:
Several Federal Circuit Courts, the First, Seventh, Ninth, and Eleventh
Circuits, have issued clear.and consistent opinions finding that the
First Amendment of the United States Constitution openly confers and
protects the right of ordinary civilians to record police activity.The
right of people to document the public activities of law enforcement
helps to ensure that the police and others engaged in law enforcement
activities are accountable to the public.
PRIOR LEGISLATIVE HISTORY:
2018: A.2448/S.2876 - Third Reading Calendar / Codes
2017: A.2448/S.2876 - Referred to Rules / Codes
2016: A.10387-A - Referred to Rules
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
Thirty days after becoming a law.
STATE OF NEW YORK
________________________________________________________________________
1360--A
Cal. No. 70
2019-2020 Regular Sessions
IN ASSEMBLY
January 15, 2019
___________
Introduced by M. of A. PERRY, ARROYO, TAYLOR, D'URSO, FERNANDEZ, RIVERA,
HYNDMAN, NIOU, BARRON, GOTTFRIED, RICHARDSON, WRIGHT -- read once and
referred to the Committee on Codes -- ordered to a third reading,
amended and ordered reprinted, retaining its place on the order of
third reading
AN ACT to amend the civil rights law, in relation to recording certain
law enforcement activities
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as the "New
2 Yorker's right to monitor act".
3 § 2. The civil rights law is amended by adding a new section 79-p to
4 read as follows:
5 § 79-p. Recording certain activities. 1. Definitions. For purposes of
6 this section, the following terms shall have the following meanings:
7 (a) "Officer" means any peace officer, police officer, security offi-
8 cer, security guard or similar official who is engaged in a law enforce-
9 ment activity;
10 (b) "Law enforcement activity" means any activity by an officer acting
11 under the color of law; and
12 (c) "Record" means to capture or attempt to capture any moving or
13 still image, sound, or impression through the use of any recording
14 device, camera, or any other device capable of capturing audio, moving
15 or still images, or by way of written notes or observations.
16 2. Right to record law enforcement related activities. A person not
17 under arrest or in the custody of a law enforcement official has the
18 right to record law enforcement activity and to maintain custody and
19 control of that recording and of any property or instruments used by
20 that person to record law enforcement activities, provided, however,
21 that a person in custody or under arrest does not, by that status alone,
22 forfeit the right to have any such recordings, property and equipment
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06662-02-0
A. 1360--A 2
1 maintained and returned to him or her. Nothing in this subdivision shall
2 be construed to permit a person to engage in actions that physically
3 interfere with law enforcement activity or otherwise constitute a crime
4 defined in the penal law involving obstructing governmental adminis-
5 tration.
6 3. Private right of action. (a) A claim of unlawful interference with
7 recording a law enforcement activity is established under this section
8 when a person demonstrates that he or she exercised or attempted to
9 exercise the right established in subdivision two of this section to
10 record a law enforcement activity and an officer acted to interfere with
11 that person's recording of a law enforcement activity, including but not
12 limited to, by:
13 (i) intentionally preventing or attempting to prevent that person from
14 recording law enforcement activity;
15 (ii) threatening that person for recording a law enforcement activity;
16 (iii) commanding that the person cease recording law enforcement
17 activity when the person was nevertheless authorized under law to
18 record;
19 (iv) stopping, seizing, searching, ticketing or arresting that person
20 because that person recorded a law enforcement activity; or
21 (v) unlawfully seizing property or instruments used by that person to
22 record a law enforcement activity, unlawfully destroying, or seizing a
23 recorded image or recorded images of a law enforcement activity, or
24 copying such a recording of a law enforcement activity without consent
25 of the person who recorded it or approval from an appropriate court.
26 (b) It shall be an affirmative defense to a civil action under subpar-
27 agraphs (i), (iii) and (iv) of paragraph (a) of this subdivision that at
28 the time of such conduct by an officer, such officer had probable cause
29 to arrest the person recording such a law enforcement activity for a
30 crime defined in the penal law involving obstructing governmental admin-
31 istration.
32 (c) A person subject to unlawful interference with recording law
33 enforcement activities as described in paragraph (a) of this subdivision
34 may bring an action for any violation of this section in any court of
35 competent jurisdiction for damages, including punitive damages, for
36 declaratory and injunctive relief, and such other remedies as the court
37 may deem appropriate.
38 (d) In any action or proceeding brought pursuant to this section, the
39 court may allow a prevailing plaintiff reasonable attorney's fees and
40 expert fees as a part of the costs which may be recovered.
41 (e) Any action or proceeding brought pursuant to this section shall be
42 commenced no later than three years after the date on which the
43 violation of this section is committed.
44 4. Preservation of rights. This section shall be in addition to all
45 rights, procedures, and remedies available under the United States
46 Constitution, 42 USC 1983, the constitution of the state of New York and
47 all other federal law, state law, law of the city of New York or the
48 administrative code of the city of New York, and all other civil reme-
49 dies, including monetary damages, created by statute, ordinance, regu-
50 lation or common law.
51 § 3. Severability clause. If any clause, sentence, paragraph, subdivi-
52 sion, section or part of this act shall be adjudged by any court of
53 competent jurisdiction to be invalid, such judgment shall not affect,
54 impair, or invalidate the reminder thereof, but shall be confined in its
55 operation to the clause, sentence, paragraph, subdivision, section or
56 part thereof directly involved in the controversy in which such judge-
A. 1360--A 3
1 ment shall have been rendered. It is hereby declared to be the intent of
2 the legislature that this act would have been enacted even if such
3 invalid provisions had not been included herein.
4 § 4. This act shall take effect on the thirtieth day after it shall
5 have become a law.
