New York City Sued Over Filmmaker's Right To Photograph

By Donald R. Winslow

A lawsuit filed in the United States District Court, Southern District of New York, in Manhattan claims that New York City’s requirement to have a permit to film in public is unconstitutional, and it seeks a court order against the law’s enforcement. The New York Civil Liberties Union, along with the New York University Law School Civil Rights Clinic, filed the federal suit Tuesday on behalf of an Indian filmmaker, Rakesh Sharma, against the City of New York and the commissioner of the Mayor’s Office of Film, Theater and Broadcasting, Katherine Oliver; a police detective, Daniel D’Alessandro; and five unidentified police officers.

Sharma, of Mumbai, India, a well-known independent filmmaker, came to New York City in May 2005 to shoot a film about the lives of everyday people, including cab drivers, in the post-9/11 world, NYCLU said in a press release. The suit says that after Sharma lawfully filmed various midtown scenes with a handheld video camera while standing on city sidewalks, he was detained by New York Police Department officers, held and interrogated for several hours, searched, and told before he was released that he needed to have a permit for any future filming.

The NYCLU says that Sharma returned to Manhattan in November 2005 and applied for a permit to film so that he would not be harassed again. His request for a permit was denied, and the film office refused to provide him with a written explanation of their denial. Applicants are also required to have $1 million of insurance to receive a permit.

In a statement from the NYCLU, executive director Donna Lieberman said, “In a democracy, people have the right to document activity in public places without being arrested. When the city tried to stop people from taking pictures in the subway, we objected and the city backed down. In the same way, we are challenging the city's arbitrary film permitting scheme, which exposes legitimate filmmakers to risk of arrest for taking pictures on the streets of New York."

The National Press Photographers Association was one of several press organizations that successfully opposed the city’s 2005 attempt to ban photography in the subway system, and opposes any restrictions upon photography in public places. NPPA also recently took formal steps to oppose a proposed ban of photography on New Jersey public transportation and its property by the New Jersey Transit Corporation, which withdrew the proposed ban in early January after it received “an unusual number of public comments” and complaints about the proposed rule.”

Chris Dunn, a professor at the New York University Civil Rights Clinic, is the associate legal director for NYCLU. Dunn said in their statement, “The police can and should investigate suspicious activity, but that does not give them license to arrest people for public photography."

Sharma is a critically acclaimed international filmmaker whose most recent film, “Final Solution,” documents politics in India by studying violence in Gujarat. An earlier film, “Aftershocks – A Rough Guide to Democracy,” tells the story of two small Indian villages that fought a government-controlled company that sought to profit from their destruction by an earthquake. Sharma’s suit against New York City says that the filmmaker makes documentaries, films that “use candid footage of peoples, places, and events. He does not use actors, sets, or a crew in his films, and often uses a small, handheld video camera to film.”

On May 13, 2005, Sharma was photographing taxi cabs emerging from the Park Avenue South Underpass near 39th Street and Park Avenue, and had been doing so for about half an hour, the suit says, and he saw no notices prohibiting filming in the area. He had seen tourists shooting footage in the same area on the previous afternoon, as well as at the same time he was filming. He then started walking toward Times Square, continuing to film images of the city when he was approached by a New York City police officer in plain clothes who flashed a badge and asked Sharma to identify himself.

The suit says Sharma did not hesitate to comply with the officer's request, immediately handing over his passport, and explained that he was a visiting filmmaker. After a few questions the officer, still keeping Sharma’s passport, instructed him to follow him to the corner of 39th Street and Park Avenue, which Sharma did. Other officers were summoned to their location and after several minutes Sharma was told that they thought it was suspicious that he was filming a “sensitive building” (the MetLife building) and that he would need to be investigated further.

As the officers questioned Sharma and searched his shoulder bag one of the officers, according to the lawsuit, charged Sharma and shoved him in the chest when Sharma tried to turn on his video camera to show the first officer his footage, believing that showing the police officer the footage might put him more at ease about what he had been photographing. The suit says that after charging and shoving Sharma, the officer grabbed and retained the video camera and said words, to the effect, “we known how to deal with you guys, asshole,” and told Sharma he was authorized to “punch him if necessary.” The suit says Sharma was stunned and scared and feared for his physical safety.

For two hours police held Sharma at the corner, and he was told he was not allowed to move while police retained his camera and passport. The suit says Sharma was denied permission to make a phone call, and after two hours an NYPD sergeant arrived and questioned Sharma. Detective D’Alessandro arrived along with an unidentified detective and they questioned Sharma further before taking the filmmaker to the 17th Precinct office. In the car, the suit says, Sharma told the detectives about what had happened and that he had been shoved and called an “asshole” by the officer. The suit says that detective D’Alessandro apologized for the event and said words to the effect that “we have some young detectives who have not had adequate time for training.”

The suit says that at the precinct, the detectives allowed Sharma to use a computer to search the Internet for his name in order to verify his identity. The search revealed many Web pages that mentioned him and the detectives were “seemingly satisfied that Mr. Sharma was who he claimed to be,” and they returned his passport but retained his camera. They said it was necessary to show their supervisor the footage.

Finally, several hours later, detectives returned Sharma’s camera and apologized to him for the conduct of their colleague and for having detained Sharma for so long, the suit says, and he was released without being charged with any offense. When his camera was returned, Sharma says the LCD screen flap was scratched and the display window was cracked, which had not been the case when he was using the camera earlier in the day. Sharma says he did not film in New York City in the following days because he was afraid police would harass him again, and cancelled appointments he had made for additional shooting.

In the preliminary statement at the top of the federal suit, the claim says, “This is a civil rights action to vindicate the right of law-abiding members of the public to engage in filmmaking and photography in public places in New York City. The plaintiff Rakesh Sharma is an independent documentary filmmaker who in May 2005 was detained for several hours, searched, and harassed by members of the New York City Police Department for doing nothing more than filming on a public sidewalk in midtown Manhattan… The defendants have violated Mr. Sharma’s rights under the First and Fourth Amendments of the United States Constitution and his rights under New York State law. Mr. Sharma would like to resume filming in New York City but is afraid to do so because he fears further police detention and harassment, particularly since he is unable to obtain a permit.”

The lawsuit filed by the NYCLU for Sharma can be downloaded as an Acrobat .PDF file here.