Two train enthusiasts who were arrested for photographing in the subway have won a big victory for all New Yorkers who don’t want to show their papers while commuting. Steve Barry and Michael Burkhart were arrested in August 2010 at Broad Channel while waiting for one of the MTA’s beloved nostalgia trains to roll in. Barry, the editor of Railfan & Railroad Magazine, and Burkhart were taking photos on the platform when a cop approached them and told them that photography was prohibited in the subway system. This, as most of us know, is not true, and when Barry questioned the legality of the officer’s order, they were told to produce identification.
Barry told the officer he didn’t not have ID, so he was handcuffed and searched. It turned out he did have a Pennsylvania driver’s license in his wallet, but he was still issued a summons for ostensibly violating a Transit Authority rule requiring people to carry ID. Both men were also issued summonses charging them with taking “unauthorized photos.” The New York City Transit Adjudication Bureau later dismissed all the charges because they don’t violate any transit rules.
Rules, schmules! Over the past decade, police have issued 6,542 summonses to people who failed to provide identification under the ID rule. In dismissing the charges, the Transit Adjudication Bureau stressed that “no person on or in any facility or conveyance of NYCTA is required to carry identification documents.” The rule that transit police have been using to justify the I.D. summonses is this:
All persons on or in any facility or conveyance of the authority shall: provide accurate, complete and true information or documents requested by New York City police officers or authority personnel acting within the scope of their employment and otherwise in accordance with law.
The NYCLU filed a lawsuit on behalf of Barry and Burkhart challenging the constitutionality of the charges. Brooklyn Magistrate Cheryl Pollak ruled that the NYPD’s rule is so vague that police can interpret however they want—and the way they’ve been interpreting it is unconstitutional. “Theoretically the ID rule as written would authorize officers to ask someone for their bank records or reveal his or her age or weight,” Pollak ruled.
NYC Transit is still reviewing the ruling and declined to comment. But NYCLU Staff Attorney Mariko Hirose says, “This decision is a victory for the freedom of people to walk around free from showing their papers, a core American right. It’s past time for the NYPD to learn about the Constitution and stop harassing and even arresting people for exercising their basic rights.”