In this video Audit the Audit claimed that in Nieves v. Bartlett the Supreme Court explained if a police officer retaliates against someone for filming the police that person can file a First Amendment retaliation claim against the officer.
The problem is that those words are not in the opinion of Nieves (2019) and the Supreme Court has never reviewed a right to record the police case.
LI A was charged with third degree trespass [§ 140.10(a)] which reads:
{§ 140.10 Criminal trespass in the third degree.
A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in a building or upon real property
(a) which is fenced or otherwise enclosed in a manner designed to exclude intruders; or}
The first part is the same as the base level charge of the trespass violation. The 3rd degree charge adds “which is fenced or otherwise enclosed in a manner designed to exclude intruders…”. (a) is what makes it a third degree charge…and New York courts have held that one of the two conditions is present as a necessary element of 3rd degree trespass.
The building wasn’t fenced and it wasn’t enclosed in a manner designed to exclude intruders. The woman who was also trying to get in got as far as he did when the gentlemen emerged from the building to trespass him.
Some cases:
From People v. Moore, 833 NE 2d 192 - NY: Court of Appeals 2005
The Penal Law provides that "[a] person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in a building or upon real property (a) which is fenced or otherwise enclosed in a manner designed to exclude intruders" (Penal Law § 140.10 [a]). Although previous versions of the statute contained nearly identical language, the "fenced or otherwise enclosed" requirement was not contained in a separate subdivision until the statute was amended in 1987 (L 1987, ch 192). Prior to the amendment, the statute had apparently been interpreted so that knowingly entering or remaining unlawfully in any building—fenced or unfenced—constituted criminal trespass in the third degree, as did knowingly entering or remaining unlawfully upon real property which was fenced or otherwise enclosed in a manner to exclude intruders. Under the prior statute, "the building was not required to be fenced or otherwise enclosed" (Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law art 140, at 13). The plain language of the statute as amended, however, clearly requires that both buildings and real property be fenced or otherwise enclosed in order to increase the level of culpability from trespass (see Penal Law § 140.05) to criminal trespass *727 in the third degree. The 1987 amendment thus narrowed the definition of criminal trespass in the third degree to require one of several enumerated conditions to be present.
This reading is consistent with the general scheme of article 140 of the Penal Law. Starting with the violation of trespass (see Penal Law § 140.05), the crimes become progressively more serious as they approach criminal trespass in the first degree (see Penal Law § 140.17). Since the violation of trespass requires only that a person "knowingly enters or remains unlawfully in or upon premises" (Penal Law § 140.05), which includes buildings (see Penal Law § 140.00 [1]), section 140.10 (a) is properly interpreted as requiring the additional aggravating element that the building or area entered be fenced or otherwise enclosed in order to exclude intruders to elevate the crime from a violation to a class B misdemeanor.
In People v. Casatelli, 204 AD 3d 1092 - NY: Appellate Div., 3rd Dept. 2022, Casatelli lost his appeals on his conviction for criminal trespass in the 3rd degree for following behind a student who had a swipe card without being invited to follow her in.
It’s possible that LIA could be convicted for leaving too slowly…but I’m not certain about that. What I am certain about is that he didn’t commit what he was charged for, trespass in the third degree.