NYCLU Lawsuit Defends Right to Take Photos in NYC Subway System

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org

The New York Civil Liberties Union has filed a federal lawsuit defending the public’s right to take photographs in the New York City subway system without fear of being arrested or having to show identification to police.

The lawsuit was filed Monday afternoon in U.S. District Court for the Eastern District of New York on behalf of plaintiffs Steve Barry and Michael Burkhart, railroad enthusiasts and photographers who were unlawfully arrested in August 2010 while taking photos of subway trains at the Broad Channel subway stop in Brooklyn. At the time, they were awaiting the arrival of a vintage subway train on display by the New York Transit Museum. They both were charged with unlawful photography, and Barry was handcuffed and charged with failing to produce ID in violation of a Transit Authority rule.

“People cannot be arrested for taking pictures in public places, including the subway, and they cannot be required to carry identification documents,” said NYCLU Associate Legal Director Christopher Dunn, lead counsel on the case. “The police harassment of photographers must stop.”

The lawsuit argues that the arrests violated the plaintiffs’ constitutional rights. It also maintains that a Transit Authority’s rule requiring people using the city’s transit system to carry ID documents is unconstitutional. The City of New York, the Transit Authority and the NYPD officer who detained the photographers are named as defendants.

Barry, 54, is the editor of Railfan & Railroad Magazine, a monthly publication for railroad enthusiasts. He manages the website www.railroadphotographer.com. Burkhart, 36, works in marketing in the Philadelphia area. They are friends and members of the National Railway Historical Society.

Barry and Burkhart, of New Jersey, traveled to New York City on Aug. 21, 2010 for a scheduled run of one of the Transit Museum’s vintage subway trains. These exhibitions are popular among photographers.

While waiting for the vintage train, the plaintiffs were taking photos of regular subway trains. A police officer approached them and told them that they were not allowed to take photographs in the subway system. Barry asked the officer to identity the city statute that they were violating. Instead, the officer demanded ID from both men. Barry gave his name and address but did not present identification. The officer handcuffed Barry and searched his pockets.

“I never imagined that I’d get arrested for taking pictures of a subway train,” Barry said. “It was a humiliating experience, and I hope this lawsuit will prevent other people from enduring similar mistreatment.”

Both men, who had never previously been arrested, were detained in the subway station’s waiting area for about a half hour. Barry was handcuffed the entire time.

“This was a baffling and upsetting experience,” Burkhart said. “Taking pictures of a subway train is not a crime. It’s disheartening to think that we’re not the first people to be arrested for this and that it could happen again to anyone.”

Barry and Burkhart were issued summonses charging them with taking “unauthorized photos,” though the transit rule the officer cited states that photography is permitted in the transit system. Barry also was issued a summons for violating the Transit Authority rule requiring people to carry ID. The New York City Transit Adjudication Bureau later dismissed all the charges. As a result of their arrests, Barry and Burkhart have stopped coming to New York City to photograph in the subway system.

“The NYPD has a troubling history of harassing photographers and violating their First Amendment rights,” NYCLU Executive Director Donna Lieberman said. “Moreover, the city cannot require people to carry ID while using public transit. The freedom to move about without having to prove you identity to government agents is a core American right.”

Also serving as counsel in the case are Andrew Avorn, Timothy Taylor-Hurley and Eleanor Spottswood, who are NYU Law School students participating in the Civil Rights Clinic.

To read the NYCLU’s full complaint, visit http://www.nyclu.org/files/releases/Sub_Photo_ID_Complaint_11.14.11.pdf.