Filming Cops Constitutionally Protected

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By Bernie Pazanowski

The First Amendment protects people who record police officers conducting official business, the Third Circuit held in an opinion that adds to a growing consensus among appeals courts ( Fields v. City of Philadelphia , 2017 BL 234492, 3d Cir., No. 16-1650, 7/7/17 ).

But the officers in these consolidated cases were nevertheless entitled to qualified immunity because that right wasn’t clearly established at the time, the U.S. Court of Appeals for the Third Circuitsaid in a July 7 opinion by Judge Thomas L. Ambro.

Gregg Leslie, the Legal Defense Director for Reporters Committee for Freedom of the Press, Washington, told Bloomberg BNA that even though five other federal circuits already recognize the right to record officers in public, this opinion adds to the consensus and clearly sets out what the First Amendment right protects. RCFP filed a brief in the case for a number of amici supporting the plaintiffs.

The district court in this case held that the plaintiffs’ activities weren’t protected by the First Amendment because they didn’t show they made them for expressive purposes, Leslie explained. But this opinion stopped that argument before it could get traction, he said.

This is a good, clear opinion from a prominent court and it should be persuasive for other circuits in the future, Leslie said.

The City of Philadelphia Law Department would not comment on the case because it is still pending.

Kenneth E. East, Foster & East, North Richland Hills, Texas, who represented a police officer in a similar case decided by the Fifth Circuit, told Bloomberg BNA that the right to record police, “even if found to be clearly established in a particular jurisdiction, does not insulate a person from law enforcement actions if the person’s conduct also presents reasonable suspicion to investigate or probable cause to arrest.” Even so, he said, police today can’t “stop photography for no other reason than to stop photography.”

Protests and House Parties

Philadelphia police prevented Amanda Geraci from filming an arrest at an anti-fracking protest. College student Richard Fields was arrested after taking a picture with his phone of city police breaking up a house party.

Geraci’s and Fields’s civil rights suits argued that the police retaliated against them for exercising their First Amendment right to film police in action.

Precedent from five other circuits and Philadelphia Police Department official policy recognize that private citizens have a First Amendment right to record police engaged in official business.

But the lower court held that the plaintiffs’ activities weren’t protected because they didn’t show their “conduct may be construed as expression of a belief or criticism of police activity,” and granted summary judgment to the police.

That reasoning “ignores that the value of the recordings may not be immediately obvious,” the Third Circuit said.

“The First Amendment protects actual photos, videos, and recordings ... and for this protection to have meaning the Amendment must also protect the act of creating that material,” it said. Such activities “fall squarely within the First Amendment right of access to information,” it said.

Most people today have cell phones and recording police officers is ubiquitous, the court noted. The content of those videos provides a different perspective from official police videos and complements the role of the news media, it said.

Qualified Immunity

But the officers are still entitled to qualified immunity, the court said.

Before now, the Third Circuit never held that the public has a right to record police carrying out official duties in public, and twice previously said the right wasn’t clearly established, it noted.

As for the police department policy recognizing the right, even the plaintiffs’ arguments showed its understanding by officers was at best muddled, the court said. The opinions from the other circuits and from other district courts in the Third Circuit are also distinguishable, it said.

Judge L. Felipe Restrepo joined the opinion.

Judge Richard L. Nygaard dissented, arguing that a reasonable officer at the time in question would have known that Fields’ and Geraci’s activities were protected.

Molly M. Tack-Hopper, American Civil Liberties Union, Philadelphia, argued for the plaintiffs. Craig R. Gottlieb, City of Philadelphia Law Department, argued for the city.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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Full text at http://src.bna.com/qCZ.

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