By Matt Shroyer and Charles A. Ross
Practically everyone has a cell phone camera and it is rare that any location in a major city does not have security cameras. The often oppressive political climate makes it more and more common for citizens to want or feel an obligation to record the actions of police. When a citizen takes on that role, stops at the scene of a crime, investigation, or stop-and-frisk, and begins to film, a number of conflicting considerations come into play. It should not be controversial to state that officers ought to be able to ensure their own safety as they go about their business. Similarly, a citizen in a free country should be able to observe and record police interactions that take place in their community. There is no doubt that such videos have shed light on serious police abuses and, in less publicized instances, debunked frivolous claims against law abiding officers. On the other side of those considerations, overzealous officers cannot be allowed to violate people’s rights simply because they don’t want to be filmed. Similarly, citizens with a political agenda or long-standing grudge should not be able to obstruct legitimate police business. How does the law in New York take these considerations into account? Where does the benefit of one public good end and the countervailing benefit of the other good begin? This post attempts to resolve those questions through the lens of the Civil Rights Act of 1871, a federal law that gives citizens a private right of action against state actors who violate their constitutional rights. At Charles A. Ross & Associates, our attorneys have extensive experience litigating these issues, particularly against the City of New York, and obtaining positive results for our clients.
The questions raised above are most closely analyzed by federal courts when a citizen sues a police officer for an unlawful arrest, most often referred to as a false arrest. The most common charge facing citizens arrested in these ‘filming gone wrong’ situations is Obstruction of Governmental Administration under New York Penal Law § 195.05. That statute states that:
“A person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act…”
It is often up to a judge to determine whether an officer possessed probable cause to arrest a citizen filming a police interaction. If a court finds there was probable cause for an OGA arrest then the citizen’s constitutional rights cannot have been violated. If the citizen was arrested without probable cause, then the officer necessarily violated that citizen’s Fourth Amendment right to be free from unreasonable seizure. At first blush, the case law surrounding this issue can seem contradictory and confusing.
In the recent case, Charles v. City of New York, 12-cv-6180, 2017 WL 530460 (E.D.N.Y. 2017), the District Court found there was no probable cause for the plaintiff’s arrest. Ms. Charles had testified that she came upon NYPD officers searching a group of teens in her neighborhood and approached the officers to find out what was going on. She was told the situation was “police business” and that she was “interfering” and she was ordered to step back. Ms. Charles acknowledged she stepped back in response to two commands but testified she refused when asked to do so a third time because she believed doing so would prevent her from properly recording the process with her phone. She then took out her phone and began recording. The officers arrested her and charged her under the OGA statute. As a matter of law, the court found that under those circumstances, Ms. Charles’ refusal to back up did not give rise to probable cause for her arrest.
The Court similarly found a lack of probable cause in Dowling v. City of New York, 11-cv-4954, 2013 WL 5502867 (E.D.N.Y. 2013). In that case Mr. Dowling came upon NYPD officers searching his brother and insisted on receiving an explanation of what was going on. He refused several orders to move back and was arrested and charged with OGA as a result. The Court found that “failing to obey a police order, in and of itself, does not constitute a circumstance that gives rise to probable cause for an arrest for obstructing government administration,” the Court determined there was no probable cause under those circumstances.
In contrast to Charles and Dowling are a string of cases frequently cited by the City of New York when defending itself and its officers in ‘filming gone wrong’ and similar cases. In Wilder v. Village of Amityville, 288 F.Supp.2d 341 (E.D.N.Y. 2003), probable cause existed for an OGA arrest based on “a [citizens’s] refusal to obey orders to leave a premises…to step back from an accident scene, or to keep away from an area where a disturbance is taking place.” In Decker v. Campus, 981 F.Supp.851 (S.D.N.Y. 1997), probable cause was found for an OGA arrest where a citizen disobeyed orders to step back from the scene of a car accident where his wife was injured. Finally, in Berger v. Schmitt, 91 F.App’x 189 (2d Cir. 2004) a panel of the Second Circuit Court of Appeals including now Supreme Court Justice Sonia Sotomayor found probable cause under the OGA statute where a citizen returned to a premises after being ordered to depart as officers attempted “to contain what had only recently been a volatile situation.” How to reconcile these cases? Is it possible? And what guidance is there for citizens who feel inclined to record police interactions?It turns out the answer is in the text of the OGA statute. In order to violate the statute an individual must, 1) with intent, 2) obstruct or impair a government function or prevent or attempt to prevent the performance of an official function, by 3) intimidation, physical force or interference, or by means of an independently unlawful act. Perhaps the most important ruling on this issue is the 1977 New York Court of Appeals case People v. Case, which held that the word ‘physical’ in the statute applies to the word ‘force’ as well as ‘interference’ and found that an affirmative physical component was necessary. People v. Case, 42 N.Y.2d 98 (1977). That important clarification means that a citizen can only violate the statute by three methods, 1) intimidation, 2) physical force or physical interference, or 3) an independently unlawful act.
It is with that clarification established that the cases relied on by the City of New York come into relief. In Wilder the citizen who refused police orders to move back was standing directly in the area where workers were preparing to cut down a large tree. That citizen was therefore physically preventing a governmental function. In Decker the citizen who refused orders to stay back physically broke free from an officer and made physical contact with the EMT treating his wife. In Berger the citizen returning to the scene of the “volatile situation” was asked to leave not only by the officer, but by the owner of the store where the police interaction was taking place. In returning to the scene Mr. Berger was therefore committing the independently unlawful act of trespassing. It is those, perhaps technical, differences that separate Wilder, Decker, and Berger from Dowling and Charles.
The City of New York has been successful in obscuring the physicality requirement in front of federal courts unaccustomed to applying New York criminal statutes. This is why it is vital for the citizen who feels his or her rights have been violated to have attorneys experienced not only in civil practice but in criminal practice as well. At Charles A. Ross & Associates our attorneys have the wide-ranging knowledge and experience to tackle these tricky “hybrid” cases and ensure federal courts are presented with the best possible arguments on behalf of our clients. If you or a loved one feels their rights have been violated at any time within the last three years, do not hesitate to call for a no obligation consultation.