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The Third Circuit Confirms a First Amendment Right to Record Police Officers

As published in the Pennsylvania Insider Newsletter July, 2017

Published on: Fri 14th Jul, 2017 By: Joshua Hausman

Last Friday, the Third Circuit issued its opinion in the case of Richard Fields v. City of Philadelphia, in which it confirmed that the recording of police officers by private citizens is protected by the First Amendment. The Third Circuit has now joined a growing consensus of other circuit courts in holding that the act of recording police officers performing their official duties in public—whether through videos, photographs, or audio recordings—is protected conduct. After this decision, Pennsylvania municipalities are officially on notice: ensure that your policies and training recognize the right of the public to record police officer activities, or a First Amendment lawsuit could be the next big thing on your Twitter feed.

The case concerned two (2) plaintiffs, private citizens, who alleged that City of Philadelphia police officers retaliated against them for recording, or attempting to record, police activity on their smartphones. Amanda Geraci, a member of a police watchdog group, was attending an anti-fracking protest in September of 2012. Ms. Geraci had moved to a vantage point from which to record the arrest of a protestor by police when an officer pushed her into a pillar and held her there for one (1) to three (3) minutes, preventing the recording. No charges against Ms. Geraci were filed. One year later, Richard Fields, a sophomore at Temple University, took a photograph of City police breaking up a house party from across the street. An officer observed Mr. Fields taking the photograph, asked him if he “like[d] taking pictures of grown men,” and ordered him to leave the area. When Mr. Fields refused, he was arrested and issued a citation for “Obstructing Highway and Other Public Passages.” The charges were later withdrawn.

Importantly, in both cases, there was no allegation that the plaintiffs were in any way interfering with the performance of the police officers’ duties. Further, in neither case were the plaintiffs’ actions motivated by an intent to express any particular point of view, nor did either plaintiff express an intent to share the recordings with a wider audience. Ms. Geraci testified that she wanted to observe the scene, and Mr. Fields testified that he wished to take a photograph of something “interesting” and “cool.” The District Court for the Eastern District of Pennsylvania, which granted summary judgment for the City and the police officers, had seized upon this lack of any expressive purpose underlying the plaintiffs’ actions in holding that the First Amendment did not protect the mere act of recording police officers, i.e., the conduct of recording alone.

Of course, as the Third Circuit pointed out in its reversal of the District Court, the value of a particular recording may not be apparent until after it has been captured. For the First Amendment’s protection of photos, videos, and recordings to have any teeth, the act of creating those materials must also be protected. Unlike, the District Court, which improperly focused on the expressive intent behind the act of recording, the Third Circuit held that the First Amendment’s protection of the public’s right of access to information about the activities of public officials protected the act of recording police officers performing their duties, whether for some reason or for no reason at all. Prohibitions on the public’s right to record police officers, or as in this case, retaliation against private citizens who exercise that right, violates the First Amendment.

The Court did recognize that the right to record police officers in public spaces was not absolute. While it could be subject to reasonable time, place, and manner restrictions, the right to restrict such recordings is restrained in the public space. The Court declined to draw clear lines around what restrictions might be appropriate, however, because the defendants in this case had no justification whatsoever for their actions against the plaintiffs. The court noted, without expressly holding as such, that recording which interfered with police activities “might” not be protected, and cited as an example a recording of a police conversation with a confidential informant. While it is unknown to what extent future courts will recognize restrictions on the public’s right to record, it is clear that the justifications will need to be strong and compelling to avoid running afoul of the First Amendment.

Although a majority of the Third Circuit granted the officers involved in the incidents qualified immunity because the right to record officers was not “clearly established” at the time of the incidents, those days are clearly over. The Court has given notice that the First Amendment protects the right to record police officers in public spaces, and a failure to train police officers or discipline officers for conduct which violates this right could give rise to municipal liability under City of Canton v. Harris. Despite the fact that the City of Philadelphia had policies and conducted training on the right of citizens to record police officers, the Court remanded back to the District Court the issue of whether the City could be held liable for the officers’ conduct.

The Third Circuit’s decision makes clear the need for police departments and municipalities to review their policies and procedures to ensure that police officers are not interfering with the right of private citizens to record police activities. If no policies exist on the subject, they should be created. Having a “paper policy,” however, is not enough. Police officers should be trained to respect the right to record, and when violations of this right occur, appropriate corrective action must follow. If your municipality needs assistance with establishing policies and procedures in compliance with this ruling, please contact us.