Effective July 14, 2020, the New Yorker’s Right to Monitor Act (the “Act”), officially gives persons not under arrest, or in the custody of a law enforcement, the right to record police activity. The Act further gives such persons the right to maintain custody and control of recordings of police activities as well as the devices used to make the recordings. However, even if an individual is under arrest, or in the custody of law enforcement, this right to record is not forfeited.
The Act is intended to restore trust in the relationship communities have with the police by providing additional protection to your First Amendment rights to make video recordings of police working in public.
Although the U.S. Supreme Court has not ruled on the precise question of the right to record police activity, Branzburg v. Hayes (1972), held that “without some protection for seeking out the news, freedom of the press could be eviscerated.” More to the point, First National Bank of Boston v. Bellotti (1978), explained that the First Amendment “goes beyond [the] protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.”
The particular “stock of information” contemplated by the Act—recordings of police officers carrying out their duties in public—is critically important in enabling citizens to hold the government accountable for its actions, a central tenet of the First Amendment.
With the recording technology and immediate Internet access made possible by smart phones, virtually anyone can now document news in ways that only journalists and film crews were once able to. This is of importance because courts have ruled that bystanders have the same First Amendment rights as journalists with regards to gathering the news.
Search and seizure laws are also relevant to issues raised by the Act. In the landmark case of Riley v. California (2014), the U.S. Supreme Court held that the Fourth Amendment prohibits police from seizing recording devices and subsequently searching through their contents. The only legal way for police to seize a phone is through an arrest and the only way for the police to access its contents is to acquire a warrant.
In his opinion, Chief Justice John Roberts wrote, “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’ The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”
If you arrested for peacefully protesting in Western New York, contact Friedman & Ranzenhofer, PC at (716) 541-3405 or WNY-Lawyers.com for free representation.