The days of the NYPD claiming the power to arrest people for recording them are coming to an end.

Last Tuesday, a U.S. District Court for the Southern District of New York judge rejected New York City’s qualified immunity defense in the latest court ruling establishing that recording police officers is protected by the First Amendment. The ruling means that Douglas Higginbotham, who was was arrested on November 15, 2011 while covering Occupy Wall Street for TV New Zealand, will be allowed to move forward with his civil rights lawsuit against the city.

The NYPD captain named in Higginbotham's lawsuit. (Credit: TV New Zealand)

The NYPD captain named in Higginbotham’s lawsuit. (Credit: TV New Zealand)

Higginbotham climbed on top of a phone booth to get a better shot of police arresting someone, only to be ordered by a police captain to get down. Higginbotham said he was unable to immediately comply because there were too many people surrounding the phone booth.

When Higginbotham began to climb down, the captain and two other police officers pulled his legs out from under him, causing him to drop his camera. The police officers arrested him and transported him to a police processing center. After four hours in police custody, three of which he spent in plastic handcuffs, he was issued a summons for disorderly conduct and released.

The charge was later dismissed.

Higginbotham’s lawsuit names the captain, two police officers and the city as defendants. The captain is unnamed in the lawsuit. The other two police officers are Officer Curtis Sylvester and Sergeant Christophe Tomlinson. The suit alleges that the officers falsely arrested Higginbotham and violated his First Amendment rights.

The city claimed that Higginbotham was not falsely arrested because the officers had probable cause to arrest him for failure to disperse, but the court rejected this argument:

The parties dispute whether, as a journalist covering the protest, Higginbotham can properly be said to have been “congregating” with the protesters within the meaning of the statute. The Court need not resolve this question, however, because there is a different reason why the statute does not cover Higginbotham’s conduct: the defendants’ order for Higginbotham to climb down from the telephone booth was not an order to “disperse.” That word, as used in the statute, means “[t]o separate, go different ways.” Oxford English Dictionary (2d ed. online version Mar. 2015). There is no allegation that Higginbotham was ordered to “separate” himself from the rest of the crowd, by leaving the scene of the protest. On the contrary, as alleged, the defendants instructed that he climb down from the phone booth into the crowd. Further, “[a] group can disperse; an individual cannot.” Because the defendants’ order was directed at Higginbotham alone, it could not be an order to disperse.

The court further noted “that Higginbotham is alleged to have complied with the defendants’ order as soon as he had the opportunity to do so… There is nothing in the complaint to suggest that Higginbotham ever ‘refused’ to comply with the order, as required by the statute.”

The city raised a number of other possible justifications for the arrest, including the danger posed by the possibility of Higginbotham dropping his camera and possible damage to the phone booth, but the court rejected these arguments as well.

The city also claimed that it was protected by qualified immunity because the right to record police is “insufficiently defined,” but the court said otherwise:

[T]he right to record police activity in public, at least in the case of a journalist who is otherwise unconnected to the events recorded, was in fact “clearly established” at the time of the events alleged in the complaint. When neither the Supreme Court nor the Second Circuit has decided an issue, a court “may nonetheless treat the law as clearly established if decisions from . . . other circuits ‘clearly foreshadow a particular ruling on the issue.’”

The court cited rulings from First, Ninth, and Eleventh Circuits as well as several district courts as evidence that the right to record police was clearly established at the time of Higginbotham’s arrest.

The court further explained that while there are some limits on this right, none of them are applicable to Higginbotham’s case:

Certainly, the right to record police activity in a public space is not without limits, and some uncertainty may exist on its outer bounds. For instance, it may not apply in particularly dangerous situations, if the recording interferes with the police activity, if it is surreptitious, if it is done by the subject of the police activity, or if the police activity is part of an undercover investigation. As alleged, however, Higginbotham’s conduct falls comfortably within the zone protected by the First Amendment. The complaint alleges that he was a professional journalist present to record a public demonstration for broadcast and not a participant in the events leading up to the arrest he was filming. There is nothing in the complaint suggesting that his filming interfered with the arrest. Accordingly, and in light of the case law consensus described above, a reasonable police officer would have been on notice that retaliating against a non-participant, professional journalist for filming an arrest under the circumstances alleged would violate the First Amendment.

Scott Greenfield, a New York City criminal defense attorney, criticized the ruling for being limited to “journalists” who are “otherwise unconnected to the events recorded.” Greenfield writes:

In situations like Occupy Wall Street, and the Ferguson and Baltimore protests, the existence of journalists interspersed with protesters raises significant questions as to their presenting a threat to officers, interfering with their assertion of control and being connected to the underlying conduct at issue.  In other words, even to the extent that professional journalists enjoy a “clearly established” First Amendment right, there are so many variables that remain up to police discretion as to perpetuate enough muddiness to fill a police officer’s heart with joy.

Yes, it’s a big step forward to have a Circuit Court of Appeals hold that there is a clearly established right, even if it’s not for you (or me) to exercise the right to record police in the course of the official public duties.  But to claim the right is to ask for trouble, given the discretionary decisions left in the hands of police.

While this ruling still gives police some leeway to assert qualified immunity defenses in the future, that could change soon. The city currently faces another lawsuit that seeks a permanent injunction that would bar police officers from retaliating against people for recording them. That suit could lead to a broader ruling on the right to record police.

UPDATE (5/19/15): Jay K. Goldberg, Higginbotham’s attorney, provided the following statement on the court ruling:

I did expect this result from the court. The motion to dismiss, because it must accept as true all allegations in the complaint, presents a difficult burden for the defendants. As alleged in the complaint, there was nothing to support a claim of probable cause for arrest. Nor was there a basis for asserting qualified immunity. The facts in the complaint did not support the statutory elements of the crime for which he was arrested or any of the other crimes posited by the defense. Therefore, there was no reasonable basis for an arrest.

As for the First Amendment claim, the defense argument was based on a case involving a “citizen journalist.” While the First Amendment protections for such a person can be debated, it simply is not the same as a credentialed cameraman working on a story. The conduct of the NYPD clearly was meant to interfere with the media coverage of the OWS police actions. I believe that as the facts come out, we will be able to demonstrate that this was true as well of Mr. Higginbotham’s arrest.

The next step will be to move for an amended complaint to plead additional facts on those causes of action that were dismissed. I expect to do that in the next couple of weeks.

Higginbotham declined to comment at this time, citing his attorney’s advice.