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NYC Subway Users Need Not Carry ID, Judge Says

BROOKLYN, N.Y. (CN) - New York City police officers cannot demand photo identification from subway passengers, a federal judge ruled, finding the Transit Authority's ID Rule unconstitutionally vague.

Steve Barry and Michael Burkhart brought a lawsuit over the rule in 2011 after they were issued summonses charging them with taking "unauthorized photos." Barry was also handcuffed and cited for violating the ID rule.

Their police confrontation occurred in August 2010 while the pair had been visiting New York to see the Nostalgia Train, a popular feature in which the Transit Authority swaps out a modern subway train with cars in service from 1932 to 1977. Barry and Burkhart had allegedly been taking pictures on the tracks at the Broad Channel subway stop in Queens as they awaited the Nostalgia Train, leading a train crew to alert police officers about their activity.

They say the officers asked to see their picture identification, at which point Burkhart gave the officer his Pennsylvania driver's license and Barry recited his full name.

The city claims that Barry was more confrontational, telling the officer at least twice, "I don't have to give you ID." It says Barry gave his name upon the third request from the officer. A train enthusiast and resident of New Jersey, Barry says he believed he did not have ID on him at the time.

The officer then handcuffed Barry and retrieved a driver's license from Barry's wallet.

Both men say they were detained in the subway station's waiting area for about a half hour, with Barry handcuffed the entire time.

Ultimately the Transit Adjudication Bureau dismissed the photography charges after finding that "it is not illegal ... to take photographs within the New York City Transit System."

As to the ID charge against Barry, the bureau faulted the officer for not explaining why he wanted the ID.

The New York Civil Liberties Union, which represented the pair in their lawsuit, says that police have issued 6,542 summonses in the last 10 years to people who failed to provide identification under the ID rule.

U.S. District Judge Cheryl Pollak found the rule unconstitutional on its face and as applied Thursday.

"The court finds that the ID Rule does not provide 'sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement,'" Pollak wrote, quoting precedent.

There is also "no dispute" that the Transit Authority "has not promulgated any public guidelines or written clarification of the ID Rule," the ruling states.

As it is written, the law furthermore "does not even limit the information or documents that may be requested by an officer to identification information or documents," Pollak wrote. "Theoretically, the ID Rule as written would authorize an officer to ask someone for his bank records or demand that a person reveal his or her age or weight. As such, the ID Rule is less precise than the law found to be unconstitutionally vague in Kolender v. Lawson."

In that 1983 ruling, the U.S Supreme Court established the constitutionality of laws that allow police to demand identification from loiterers.

NYCLU Staff Attorney Mariko Hirose applauded the ruling as "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," Hirose said in a statement.

The NYCLU's statement also quoted Barry as saying: "I never imagined that I'd get arrested for taking pictures of a subway train. It was a humiliating experience, and I hope this lawsuit will prevent other people from enduring similar mistreatment."

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