In a case touching on several issues of concern for us here at the Identity Project, a Federal magistrate has struck down the N.Y. Transit Authority’s “ID rule” as unconstitutionally vague.

This was the right decision in the case, and it was issued on the right basis. And it articulates the sort of analysis and judgment that courts ought to apply to a range of other ID and related rules applicable to travelers, including in particular the TSA’s regulations requiring us to submit to “screening” as a condition of travel, without any definition of what constitutes “screening”.

Barry v. City of New York, et al. began with a complaint that focused on the right to take photographs and to be in public (in public areas of the New York City subway system) without identifying documents:

This is a civil rights action to vindicate the rights of the plaintiffs and of the public to take
photographs in the New York City subway system without fear of arrest and to be in public without identification documents.

But the case was decided neither on the basis of the right to take photographs nor the right not to carry or produce ID credentials — although those rights were implicated, and helped establish the applicable standard for vagueness — but on the basis of the vagueness of the underlying rule.

As explained in the complaint and the District Court’s decision, Steve Barry and Michael Burkhart are “railfans” who were on a regular, public outdoor subway platform (many New York “subway” lines and stations are are actually elevated) to photograph a special vintage “Nostalgia Train” operated by the Transit Authority’s museum division when they were (wrongly) arrested by New York City police.

The police stopped the two railfans because they were taking photographs, which the police said was illegal, and then asked them to identify themselves and produce ID credentials.

In fact, no law or regulation even purports to prohibit photography in public areas of New York City subway stations. But having already arrested the two railfan photographers, the police naturally had to come up with something to charge them with, as an ex post facto justification for their arrest.

Eventually, the police charged the two photographers with violating 21 N.Y.C.R.R. §1050.6(d)(3):

(d) All persons on or in any facility or conveyance of the [transit] authority shall:…

(3) provide accurate, complete and true information or documents requested by transit police officers or other authority personnel acting within the scope of their employment and otherwise in accordance with law.

In response to the railfan photographers’ Federal civil rights lawsuit, the police also tried to claim that they had been in an unauthorized area of the station. That didn’t get very far with the Federal magistrate, however, since no charges had been brought for any such offense.

There was some factual dispute as to whether one or both of the two arrested photographers had been asked to produce documents or merely to identify themselves verbally, and exactly what was said by the police and the arrestees.

In her decision, however, Magistrate Cheryl L. Pollak found that she didn’t need to resolve any of those questions to find that the general rule requiring people in subway stations to provide any information and/or documents requested by police or transit authority staff was void for vagueness, both on its face and as applied:

In sum, the Court finds that the ID Rule is a criminal law that reaches a substantial amount of constitutionally protected conduct and vests almost unlimited discretion in the NYPD officers charged with enforcement of the ID Rule. Accordingly, the Court finds that the ID Rule is unconstitutionally vague on its face.

Magistrate Pollak found that a facial challenge to the rule was appropriate because such a rule placing conditions on movement through public places implicated First Amendment rights. But she went further:

Having found that a facial challenge to the ID Rule is appropriate, the Court need not address defendant’s contention that the particular application of the ID Rule to plaintiffs case was valid. However, the Court notes that the ID Rule is unconstitutionally vague as applied to the specific facts of this case. First, the ID Rule did not provide Mr. Barry with fair notice of what conduct was prohibited…. The ID Rule did not provide Mr. Barry with fair notice about whether identification beyond a verbal statement of his name could be demanded. Nor could he know whether supplemental verbal responses could have satisfied the ID Rule. Additionally, the ID Rule did not provide Officer Dutes with sufficient guidelines for enforcing the ID Rule against Mr. Barry. While Officer Dutes found that Mr. Barry’s verbal identification was “not good enough at the time,” other officers could have reasonably found that a verbal statement was sufficient to satisfy the ID Rule’s requirement that the identification be “accurate, complete and true.”

It’s clear that the same reasoning, applied to the TSA’s regulation requiring travelers to “submit to screening” without defining “screening”, would find that regulation to be void for vagueness.

We look forward to seeing these arguments raised in future challenges to demands by the TSA and its contractors, and adopted by other Federal courts.