Around 2:45 p.m. on Sunday, I was asked to stop filming in Washington Square Park by a New York City Parks Enforcement Patrol Officer.  He said I could not use a tripod in Washington Square.  Not one to argue with any law enforcement officer, I left the park, having just missed filming Rosie and Bobby copulate.

Here is the letter I’ll be sending to Liam Kavanagh, Acting Commissioner, Department of Parks & Recreation, The City of New York:

Liam Kavanagh
Acting Commissioner
Department of Parks & Recreation
The City of New York
The Arsenal
Central Park
830 Fifth Avenue
New York, NY 10065

Commissioner,

I’m sorry to report that on March 2, 2014 between 2 and 3 p.m., a Parks Enforcement Patrol Officer, C. Cassiano insisted that I stop filming a pair of Red-tailed Hawks in Washington Square Park, because I was using a tripod.

Before we get to the legal issues of your officer infringing on my 1^st Amendment Rights, I should introduce myself.  I’m D. Bruce Yolton, a Vice-President at Macmillan Publishers, and a long time bird and hawk watcher in New York City parks.  I’ve worked over the years with many members of the Parks Department, especially the Urban Park Rangers. 

I’m also an active blogger, with a very popular Urban Hawks (urbanhawks.com) blog.  To create the content for this blog, I’ve used a tripod in city parks, almost every other day for over nine years.  I’ve done so in the presence of almost the entire staff of the Urban Park rangers, and numerous Parks Department employees.

So, let’s get on to the legal issues.  I find it incredibly ironic that Officer Cassiano decided to tell me I couldn’t use a tripod in Washington Square Park, because I was one of the many individuals who helped influence the current policies of the Mayor’s Office of Film, Theater & Broadcasting, MOFTB. 

In 2006-8, in response to litigation supported by the New York Civil Liberties Union (NYCLU), the MOFTB was asked to create clear guidelines to separate the 1^st Amendment protected uses of photography in the city which did not require a permit, with those that needed a permit from the MOFTB.  As part of this process, MOFTB first proposed a set of onerous regulations and made them available for public comment. 

The proposed regulations included a requirement that any use of a tripod for more than ten minutes required a permit and that one had to apply for the permit for each tripod use.  One could not register as a nature photographer and get a multi-use permit under the guidelines.  This effectively meant the end to raptor photography in New York City, because who know in advance where a bird would be!   There would be no way to apply for a permit.

So, I like many others participated in the public comment period.  My comments even ended up in the New York Times (http://www.nytimes.com/2007/08/04/nyregion/04filmmakers.html), after the MOFTB agreed to revise the regulations.

The crux of the legal issue is how do you regulate commercial film production and still protect 1^st Amendment rights?  It was wisely decided that a photographer who could hand carry his equipment, was clearly covered by the 1^st Amendment, and it was reasonable to require a permit when the amount of equipment was more substantial than one person could hand carry.  

The approved MOFTB regulations (http://rules.cityofnewyork.us/content/section-9-02-processing-permit-applications), in § 9-02, define hand-held devices as follows:   

“’Hand-held devices’ shall mean (i) film, still or television cameras, videocameras, or other equipment which are held in the photographer’s or filmmaker’s hand carried at all times with the photographer or filmmaker during the course of filming, or (ii) tripods used to support film, still television cameras or videocameras.  Hand-held devices shall not include cables or any items or equipment not carried by the photographer or filmmaker at all times during the course of photography, filming or transmission.”

So, let’s back to the matter of Officer Cassiano and his insistence that tripods can’t be used without a permit in Washington Square Park. 

Officer Cassiano sited the following parks regulation,

§1-05 Regulated Uses

e. Unauthorized commercial cinematic productions

2. Filming or photography not requiring a permit.

Any person or entity engaging in filming or photography in a park, where such activity does not require a permit under the permit requirement rules of MOFTB, may engage in such activity without obtaining a permit from that Office.

In addition, any person or entity engaging in filming or photography involving only the use of handheld devices (as defined in paragraph (3) of subdivision (a) of §9-02 of the MOFTB permit rules) that takes place in an area under the Department’s jurisdiction that is not a sidewalk, pathway, street, or walkway of a bridge need not obtain a MOFTB permit. Nothing herein shall be deemed to relieve such person or entity of the obligation to obtain a permit from the Department if such activity involves conduct otherwise requiring a permit pursuant to any other rule of the Department.

I can understand the officer’s confusion.  How would he know that “handheld devices” (as defined in paragraph (3) of subdivision (a) of § 9-02 of the MOFTB permit rules)”, included tripods?  He wouldn’t given the poor wording of Parks Department’s regulation, especially since the phrase “handheld devices” has a completely different meaning in 2014, then it did when the MOFTB regulation was drafted in 2007. 

However, the whole point of the NYCLU litigation was to ensure that the citizens of New York City could go about documenting the city free of harassment by knowing exactly when and when they didn’t need a permit. And if they needed a permit, the permitting process was fair, permits were easy to apply for and the process was appropriately transparent.

So, we can go in two directions…

The Parks Department can acknowledge to me:

• that the Parks Department does not restrict the use of tripods in city parks
• that the PEP officer acted improperly
• that the staff of Washington Square will be trained about what photograph and film activity is and is not permitted in the park without a permit, especially what the phrase “handheld devices” means in regard to photography regulations.

In addition, the Park’s legal department may want to consider a revision of the language of the “§1-05 Regulated Uses” section regarding “Unauthorized commercial cinematic productions” to clarify the language which caused the confusion.  It should explicitly include language that tripod usage is permitted, and clear up language about locations, which I believe oversteps the MOFTB regulations.

Furthermore, your legal department might also want to revise the unconstitutional language about Film Shoot Requests, which is overly broad, at http://www.nycgovparks.org/permits/film-shoot-request.  No Federal judge would allow you to have a sentence that says, “To film or photograph in New York City parks, you must first receive clearance from the administrative authority of that park before submitting the appropriate application with the Mayor’s Office of Film, Theatre & Broadcasting at www.nyc.gov/film.”

Or, I can ask the NYCLU to confirm that the Parks Department is in violation of City’s 2007 settlement, and ask this matter be taken to Federal court.

Since my equipment, a tripod/camera/600mm lens, fully meets § 9-02 of the MOFTB regulations concerning “handheld equipment”, and thus is in compliance with the Parks Department “§1-05 Regulated Uses” section regarding “Unauthorized commercial cinematic productions”, I will continue to use a tripod when I photograph in all city parks.

If I continue to be harassed by PEP officers in any city park for using a tripod, I will not hesitate to take the Parks Department to Federal court, for infringing on my 1^st Amendment rights.

Thank you for your attention in this matter,

D. Bruce Yolton

CC:    Donna Lieberman, NYCLU Executive Director
Christopher Dunn, NYCLU Associate Legal Director
Robert Reeves, NYC Parks Department, Inspector, Parks Enforcement Patrol
Alessandro Olivieri, NYC Parks Department, General Counsel/Records Access Appeals Officer

Sunset is now late enough that I can run down to Washington Square after work.  Tonight I got to see some string brought to the nest but then some string removed.  Both hawks were on the nest, but they quickly made a trip south of the Bobst Library. I found them again minutes later at a favorite roost site.

Last year this pair nested in early March, so regardless of the weather, we might have eggs soon.

(I’ve received a few emails about the status of the NYU Hawkcam.  I have no idea.  Last year NYU was kind enough to continue the camera feed started by the New York Times.  It will be up to Dr. Sexton and the NYU Public Relations department, if it is to be set up again this year.)

I arrived at Washington Square with some good luck today.  I had one in sight even before I got to the park.  Then I had them either Bobby or Rosie in sight until sunset.  They shared food on the Law School and spent a great deal of time on 3rd Street.  They showed me some perches I hadn’t seen before, and gave the slip at sunset.  I couldn’t find them at any of the known roosts.

With westerly winds on Tuesday night, both hawks found roosts sheltered from the winds.  They were about four blocks apart one east and one west of the park.

Tonight, I had the pleasure of watching Rosie and Bobby go to roost on a fire escape a few blocks from the nest.  I have visited the park a few times this month and not found the hawks, so it was nice this night to watch them for over an hour.  After striking out a few times, it was good to have a home run.

After being away for Labor Day weekend, I made a visit to Washington Square Park.  One of the adults was on a flagpole, then the cross and then One Fifth Avenue.  I think it was Bobby.