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    The Lawletter Blog

    CIVIL RIGHTS: Third Circuit Joins Sister Circuits in Recognizing Right to Record Police

    Posted by Jason Holder on Tue, Oct 17, 2017 @ 11:10 AM

    The Lawletter Vol 42 No 8

    Jason Holder, Senior Attorney, National Legal Research Group

                Amanda Geraci ("Geraci") attempted to record a Philadelphia police officer's actions as he arrested an antifracking protester. Fields v. City of Philadelphia, 862 F.3d 353, 356 (3d Cir. 2017). Despite the fact that she was not interfering with the officer, a second officer pinned Geraci against a pillar, preventing her from observing or recording the arrest. Id. Geraci faced neither arrest nor citation for her actions. Id.

                Richard Fields ("Fields") was walking down a public sidewalk when he noticed a number of police officers breaking up a house party across the street.  Id. As Fields took a photograph of the scene, an officer ordered him to leave the scene. Id. When Fields refused, the officer arrested him, confiscated his phone, and searched it opening "several videos and other photos."  Id.

                Geraci and Fields brought suit under 42 U.S.C. § 1983 alleging, inter alia, "that the officers illegally retaliated against them for exercising their First Amendment right to record public police activity."  Id.  In doing so, they noted a 2011 Philadelphia Police Department memorandum "advising officers not to interfere with a private citizen's recording of police activity because it was protected by the First Amendment," and department directive issued a year later reiterating the existence of the right.  Id.  Despite this, the district court granted summary judgment to the defendants on the First Amendment claims reasoning that the "Plaintiffs' activities were not protected by the First Amendment because they presented no evidence that their 'conduct may be construed as expression of a belief or criticism of police activity.'" Id. (quoting Fields v. City of Philadelphia, 166 F. Supp. 3d 528, 537 (E.D. Pa. 2016)).

                Beginning its analysis of whether the plaintiffs' actions were protected by the First Amendment, the Fields court noted that the Third Circuit had passed on previous opportunities to address the issue, holding instead that if such a right existed it was not clearly established.  Id. at 357 (citing Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010); True Blue Auctions v. Foster, 528 F. App'x 190 (3d Cir. 2013)).  Turning to the district court's reasoning, the Fields court explained that it "disagree[d] on various fronts." Id. at 358. To begin, by focusing solely on the plaintiffs' intent at the moment of recording, the district court "ignore[d] that the value of the recordings may not be immediately obvious, and only after review of them does their worth become apparent." Id. Noting that the First Amendment protects "actual photos, videos, and recordings," the court reasoned that such protection would be meaningless unless the amendment also "protect[s] the act of creating that material." Id.

                While the First Amendment generally "protects the public's right of access to information about their officials' public activities . . . [a]ccess to information regarding public police activity is particularly important because it leads to citizen discourse on public issues, 'the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.'" Id. at 359 (quoting Snyder v. Phelps, 562 U.S. 443, 452 (2011)). Moreover, recording "what there is the right for the eye to see or the ear to hear" encourages objective accuracy of police encounters which routinely result in debate. Id. Such videos "provide different perspectives than police and dashboard cameras, portraying circumstances and surroundings that police videos often do not capture" as well as filling in "gaps created when police choose not to record video or withhold their footage from the public." Id.  The videos have even spurred action by helping police departments "identify and discipline problem officers," as well as "assist[ing] civil rights investigations and aid[ing] in the Department of Justice's work with local police departments." Id. at 360. Accordingly, the Fields court held that "recording police activity in public falls squarely within the First Amendment right of access to information. As no doubt the press has this right, so does the public." Id. at 359. The court did note, however, that its decision should not be read to suggest that all recording is protected or even desirable. Id. at 360. Instead, the right is "'subject to reasonable time, place, and manner restrictions.'" Id. (quoting Kelly, 622 F.3d at 262).  In cases of public recordings, however, "these restrictions are restrained."  Id.  Despite recognizing a right, the court ruled that the officers were entitled to qualified immunity explaining that "we cannot say that the state of the law at the time of our cases (2012 and 2013) gave fair warning so that every reasonable officer knew that, absent some sort of expressive intent, recording public police activity was constitutionally protected."  Id. at 362. 

                Dissenting in part, Judge Richard Nygaard disputed the majority's conclusion that the right was not clearly established.  Id.  Judge Nygaard noted that every circuit considering the question has found that such a right existed; four opinions recognizing the right were issued before the conduct alleged in the instant case.  Id. at 363 (citing Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995)).  The City's memorandum and directive also meant that officers were "put on actual notice that they were required to uphold the First Amendment right to make recordings of police activity."  Id. at 364.  Finally, "the officers' own lived experience with personal electronic devices (both from the perspective of being the one who is recording and one who is being recorded) makes it unreasonable to assume that the police officers were oblivious to the First Amendment implications of any attempt by them to curtail such recordings."  Id.  The dissent was therefore convinced that, "in this unique circumstance[,] no reasonable officer could have denied at the time of the incidents underlying these cases that efforts to prevent people from recording their activities infringed rights guaranteed by the First Amendment." Id. at 365.

    Topics: civil rights, First Amendment rights, right to record police activity, access to information

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