OPINION AND ORDER Plaintiff SeanPaul Reyes (“Plaintiff” or “Reyes”) brings this action against Defendant City of New York (“Defendant” or the “City”) alleging that the policy of the New York Police Department (“NYPD”) that prohibits recording in publicly accessible areas of NYPD precincts violates the First Amendment; the New York State Right to Record Act, N.Y. Civ. Rights Law §79-p; the New York City Right to Record Act, N.Y.C. Admin. Code §14-189; and the Citywide Administrative Procedure Act, N.Y.C. Charter §§1041-46. ECF No. 1 (“Compl.”). Currently before the Court is Plaintiff’s motion for a preliminary injunction seeking to (1) prohibit the NYPD from enforcing the policy set forth in NYPD Patrol Guide Procedure 203-29(7) and NYPD Administrative Guide Procedure 304-21(7) (the “Procedure”) and (2) require the NYPD to remove the signs in NYPD precincts setting forth the Procedure. ECF No. 7 (“Pl.’s Mem.”). For the reasons set forth below, Plaintiff’s motion for a preliminary injunction is GRANTED. FINDINGS OF FACT The NYPD has codified the Procedure, which authorizes officers to arrest people who record inside the lobbies of police precincts, in both its Patrol Guide and its Administrative Guide. Specifically, in June 2018, the NYPD issued Procedure No. 203-29 in the NYPD Patrol Guide titled “When a Member of the Service Encounters an Individual Observing, Photographing, and/or Recording Police Activity.” ECF No. 8-1 (“Patrol Guide”). Section 7 states: Members of the public are not allowed to photograph and/or record police activity within Department facilities. Members of the service may order any member of the public who is photographing or recording within Department facilities to stop such activity. If such person refuses to stop, they then should be ordered to leave the premises. If such person refuses to leave the premises, members of the service may take proper enforcement action under the trespass statutes (i.e., Penal Law Sections 140.05 and 140.10). The same language is contained in the Administrative Guide, Procedure No. 304-21, issued in June 2021. ECF No. 8-2 (“Administrative Guide”). The July 2020 bulletin from the NYPD Legal Bureau notes that the Patrol Guide prohibits recording in NYPD facilities and further states: When an individual is observed recording inside a Department facility, such as a precinct stationhouse, in any manner, an officer should immediately order the person to stop recording. If the person refuses to stop recording, the officer should order the person to leave the premises. If the person does not stop recording and does not leave the premises, enforcement for trespass is appropriate. ECF No. 20-2 (“NYPD Legal Bureau Bulletin”) at 5. Plaintiff Reyes is an independent journalist who reports on government accountability and transparency as well as police misconduct. Transcript of Hearing and Oral Argument (“Tr.”) 5:20-22. Often, he conducts public business with police officers and records the encounters. ECF No. 9 (“Reyes Decl.”) 3. Reyes then edits the videos of these encounters and posts them on his YouTube channel, Long Island Audit. Id. 4. He also broadcasts his reporting on other social media channels including Facebook, Instagram and TikTok. Tr. 6:8-12. Long Island Audit’s YouTube channel has approximately 500,000 subscribers and Long Island Audit has approximately one million subscribers across all channels, with approximately 20 million views each month. Reyes Decl. 5; Tr. 6:12-16. Reyes posts videos of his encounters “to educate the public on how their public officials behave,” specifically, with respect to how public officials “respect or fail to respect the First Amendment right to record public officials doing their jobs.” Reyes Decl. 6. Reyes began filming and posting videos because he has “seen a lot of police misconduct over the years online” and the lack of accountability and transparency was concerning to him. Tr. 8:2-7. He believes that recording public officials “is an essential means of holding them accountable.” Reyes Decl. 7. Reyes hopes to “draw attention to police abuse through [his] journalism and activism so that such abuse can be addressed and eventually eliminated.” Id. 9. On April 4, 2023, Reyes went to the NYPD’s 61st Precinct. Reyes Decl. 10-11. He had received a tip that the NYPD was arresting people for filming in the precinct lobby. Tr. 10:21-23. Reyes went to the 61st Precinct in order to file a complaint, investigate the situation and report back to his viewers. Id. 10:23-11:2; Reyes Decl. 12. Before entering the 61st Precinct, Reyes began recording a video. Reyes Decl. 13. About six minutes after Reyes began recording, Sergeant Tosares Korchimet entered the precinct lobby from the non-public area of the precinct and informed Reyes that he could not record in the precinct, pointing Reyes to a sign that stated: “Members of the public are prohibited from audio/video recording or photography inside this facility.” Video Recording (“Pl.’s Ex. 1″) at 6:00; Reyes Decl. 15. Reyes asked for Sergeant Korchimet’s name and badge number. Pl.’s Ex. 1 at 6:16. Sergeant Korchimet provided this information while directing Reyes toward the doors leading from the precinct lobby to the outside, stating again that Reyes could not record in the precinct. Id. at 6:18. Sergeant Korchimet then walked back into the non-public area of the precinct, and Reyes continued to record. Id. at 6:50. Shortly thereafter, Sergeant Korchimet reemerged into the precinct lobby, along with Officer Giovanni Cucuzza. Id. at 7:29; Reyes Decl. 15. Officer Cucuzza told Reyes that he could not record in the precinct lobby and had to leave. Pl.’s Ex. 1 at 7:29. Sergeant Korchimet and Officer Cucuzza told Reyes multiple times that he was not allowed to record and that he would be arrested if he did not stop recording. Id. at 7:40. Reyes did not stop recording and was subsequently arrested. Id. at 8:27; Tr. 12:15-16. Reyes was charged with violating New York Penal Law 104.05 and issued a Desk Appearance Ticket. Compl. 73-74; ECF No. 8-3. The Kings County District Attorney’s Office declined to prosecute the arrest. Compl. 75; ECF No. 8-4. Two months later, on June 1, 2023, Reyes attempted to record at the NYPD’s 75th Precinct and was again arrested (the “June 2023 Arrest”). Compl. 79; Tr. 13:7-9. He was charged with Trespass, N.Y. Penal Law 140.05; Criminal Trespass in the Third Degree, N.Y. Penal Law 140.10(A); and Obstructing Governmental Administration, N.Y. Penal Law 195.05. ECF No. 8-5. The next hearing in the prosecution for the June 2023 Arrest is in November 2023. Tr. 56:14-17. Reyes would like to continue his investigations into the NYPD. Id. 12:25-13:1. He has stated that people want him to help them file complaints and record the interactions, and subsequently post the video on his social media channels. Id. 13:3-13:5. Reyes claims that he is not able to do so, because he will be arrested again. Id. 13:6-7; Reyes Decl. 22. On July 24, 2023, Reyes filed his Complaint. Reyes alleges that the Procedure, by prohibiting recording in the lobbies of police precincts, violates the First Amendment, the New York State Right to Record Act and the New York City Right to Record Act. Compl.
87-111, 121-30. Reyes further alleges that the Procedure qualifies as a rule pursuant to the Citywide Administrative Procedure Act and that the NYPD did not undergo the required rulemaking process, making the Procedure null and void. Id.
