Calling All Cars: Photography Is Still Legal

NEW YORK, NY – New York City area photographers achieved a victory of sorts in March against Metropolitan Transportation Authority police officers when the New York Civil Liberties Union threatened a lawsuit against MTA if their officers continued to try to stop photography on the subways, Long Island Railroad, and Metro North trains. The threatened suit brought about a written concession from MTA’s general counsel that there is “no ban on photography,” but not until after several photographers were harassed and threatened with arrest.

Over the past couple of months there has been an increase in the number of complaints from photographers, both press and civilian, alleging that police – mostly MTA officers – were threatening to arrest them for taking pictures in public places, telling photographers that “photography is illegal.”

The NYCLU wrote to MTA following the string of complaints, to which MTA responded by requesting that “any photo activities get their ‘prior approval.’” NPPA Region 2 associate director Todd Maisel, who is also vice president of the New York Press Photographers Association and a staff photographer at the New York Daily News, responded to MTA officials by saying that he “would never seek their approval to take photographs in a public place.”

The threatened NYCLU lawsuit was supported by the National Press Photographers Association and the New York Press Photographers Association who, along with the NYCLU, have worked together to respond to recent incidents where MTA police have tried to threaten or intimidate photographers for taking pictures on MTA and public property.

Catherine Rinaldi, general counsel and deputy executive director for MTA, conceded in a March letter to photographers that there is “no ban on photography in the Long Island Railroad or the Metro North Transit system.” The concession came after NYCLU attorneys wrote to MTA demanding that they explain why MTA officers were threatening photographers with arrest for taking pictures in public areas of the transit system.

MTA is supposedly issuing a instructional memo to their law officers informing them that photography is indeed allowed on MTA trains and property. Maisel says that NPPA Region 2 officers and the NYCLU are currently seeking to obtain a copy of the MTA memo that is supposed to be going out to MTA police to confirm that beat officers are indeed being told to leave photographers alone.

Maisel says that he teamed up with NY1 cameraman and correspondent Bobby Cuza in late March and approached MTA police in the Atlantic Avenue Terminal in Brooklyn. On camera, the two journalists demanded that officers justify themselves for a particular law that they said they were using to stop photography from taking place. Maisel said that instead of answering their questions the officers instead tried to block Cuza from filming them, and one officer hid his badge and name tag while telling the duo that photography was “illegal.” After 20 minutes neither officer could say which law they were talking about, yet at one point they threatened to arrest the photographers for “disorderly conduct.” Finally, they advised Maisel and Cuza to just call MTA public affairs.

Also included in Cuza’s televised report were statements from NPPA Region 2 director Harry DiOrio, who chided MTA for “making up laws that don’t exist.” And Chris Dunn, the associate legal director for the NYCLU, said he believed the MTA was acting unlawfully by “making up laws and depriving the public of their constitutional rights.”

Cuza’s story aired a few days later on NY1 and spurred other regional journalists to ask MTA why they were being restricted from taking pictures without a law that specified that. The NYCLU joined with NY1 (a Time Warner company) to send a letter to MTA informing them that legal action would soon follow if they continued to take these unlawful actions against photographers.

Maisel says that since then “Dozens of photographers have stepped forward to tell their stories, of being told it was illegal to take photos on MTA property.” Maisel says he thinks that the various incidents and the threatened legal action have put pressure on MTA’s general counsel to inform MTC police chief Kevin McConville to tell MTA’s command staff that there is indeed no law against photography on MTA property, and to tell officers to “stop enforcing a law that doesn’t exist.”

About six months ago the MTA board rejected an MTA Public Affairs proposed law that would have made it illegal for anyone (except press photographers carrying New York City press cards) to take photographs within the MTA public transportation system. The Public Affairs office, led by Tom Kelly, claimed that photographers were “endangering themselves and the public,” and that some riders “didn’t want to be photographed in the public transit system” despite it being a public place. Public complaints on the proposed ban, along with a concerted effort by NPPA, NYPPA, and NYCLU to oppose the restriction, resulted in MTA withdrawing the proposal and standing down.

Maisel says MTA addresses the legality of photography in Section 1050.9 Part C of their own rules and regulations, specifically giving the public permission to take photos in subways. “Photographers are urged to download these rules when working in the subway, and to inform officers who don’t know the rules that it is legal to take pictures, at any time, in the public areas of the system,” Maisel said. The specific rule is online here.

Maisel also says that New York Police Department officials have sent a memo out to their Transit Police commanders reminding them that it’s legal for anyone to take photographs in the New York City Transit System.

Maisel, who’s worked the streets and subways of New York City as a photographer for many years, and who is well versed in the rules regarding media, says the New York Police Department is also guided by specific directives for dealing with the media. Their guidelines are published in their own official departmental patrol guide.

Quoting from it: “Code 116-53 in the patrol guide clearly affirms the First Amendment of the Constitution as it states: Members of the service (police) will not interfere with the video taping or photographing of incidents in public places. Intentional interference such as blocking or obstructing cameras or harassing the photographer constitutes censorship. Working Press Cards clearly state, ‘the bearer is entitled to cross police and fire lines.’ This right will be honored and access will not be denied. However, this does not include access to interior crime scenes or areas frozen for security reasons.”

Maisel asks that any photographer who has a problem with MTA or other New York area police while trying to legally take photographs in MTA, NYC Transit, or other public places contact him immediately at [email protected].