Your right to record police in New York

Section 79-p defines its own terms and defines them broadly. "Officer" means any peace officer, police officer, security officer, security guard or similar official who is engaged in a law enforcement activity, so the section is not limited to sworn municipal police. "Law enforcement activity" means any activity by an officer acting under the color of law. "Record" means to capture or attempt to capture any moving or still image, sound, or impression through the use of any recording device, camera, or any other device capable of capturing audio, moving or still images, or by way of written notes or observations. That last clause is worth reading twice: in New York, taking written notes of what an officer is doing is protected by the same section that protects video, and so is an attempt to record that never succeeds.

Subdivision 2 states the right itself. A person not under arrest or in the custody of a law enforcement official has the right to record law enforcement activity and to maintain custody and control of that recording and of any property or instruments used to make it. The subdivision then addresses the obvious loophole: a person in custody or under arrest does not, by that status alone, forfeit the right to have such recordings, property and equipment maintained and returned. Being arrested therefore does not authorize an officer to delete the footage or keep the phone. The same subdivision sets the outer limit, providing that nothing in it permits a person to engage in actions that physically interfere with law enforcement activity or otherwise constitute a crime defined in the penal law involving obstructing governmental administration. That cross-reference points to Penal Law § 195.05, a class A misdemeanor whose elements require intimidation, physical force or interference, or an independently unlawful act.

Subdivision 3 is what makes the section usable. A claim is established when a person exercised or attempted to exercise the subdivision 2 right and an officer acted to interfere, and the statute lists five ways that happens: intentionally preventing or attempting to prevent the recording; threatening the person for recording; commanding the person to cease recording when they were nevertheless authorized under law to record; stopping, seizing, searching, ticketing or arresting the person because they recorded; and unlawfully seizing the recording device, unlawfully destroying or seizing recorded images, or copying a recording without the recorder's consent or a court's approval. New York wrote the copying theory in deliberately, so an officer who takes a phone and duplicates the file without consent or a court order is exposed even if the original is returned intact.

The officer's defense is narrower than the claim. Paragraph (b) makes it an affirmative defense that at the time of the conduct the officer had probable cause to arrest the person recording for a Penal Law crime involving obstructing governmental administration, but that defense is written to reach only subparagraphs (i), (iii) and (iv). It does not answer a claim for threatening a person for recording, and it does not answer a claim for unlawfully seizing, destroying or copying a recording. Probable cause to arrest, in other words, does not license deleting the video.

Remedies sit in paragraphs (c) through (e). Suit may be brought in any court of competent jurisdiction for damages, including punitive damages, for declaratory and injunctive relief, and such other remedies as the court may deem appropriate. The court may allow a prevailing plaintiff reasonable attorney's fees and expert fees as part of the recoverable costs, which is the provision that makes a modest-value case worth a lawyer's time. The limitations period is three years from the date the violation is committed. Subdivision 4 stacks the section on top of everything else rather than replacing it, preserving rights under the United States Constitution, 42 USC 1983, the New York State Constitution, all other federal and state law, and expressly the law of the city of New York and the New York City Administrative Code, so a New York City resident can plead the city's own provisions alongside § 79-p.

Audio recording is lawful for a participant. New York is a one-party-consent state by the structure of Penal Law article 250: § 250.00(2) defines "mechanical overhearing of a conversation" as recording a conversation without the consent of at least one party by a person not present at it, and § 250.05 makes eavesdropping a class E felony. A bystander openly recording an officer's exchange with them is a party present at the conversation and consenting to the recording, so the eavesdropping statute is not in play.

One citation caution. The Senate's official text carries the note that there are two sections numbered 79-p in the Civil Rights Law; the second, listed as 79-p*2, is "Gender neutral single-occupancy bathroom facilities" and has nothing to do with recording. Cite the section by its heading as well as its number. The recording section's posted revisions run June 19, 2020, July 17, 2020 and January 1, 2021, and the January 1, 2021 text is the version in force.

Enforcement of § 79-p runs against the officer, not the person recording. The person whose recording was interfered with may bring an action in any court of competent jurisdiction under § 79-p(3)(c) for damages, including punitive damages, and for declaratory and injunctive relief, and the court may award a prevailing plaintiff reasonable attorney's fees and expert fees under § 79-p(3)(d). The action must be commenced no later than three years after the date the violation is committed under § 79-p(3)(e). The officer's only statutory answer is the affirmative defense in § 79-p(3)(b), probable cause to arrest the recorder for a Penal Law crime involving obstructing governmental administration, and it applies only to the preventing, cease-recording and retaliatory-arrest theories. 05 with obstructing governmental administration in the second degree, a class A misdemeanor, and § 79-p(2) expressly declines to protect that conduct.