A federal appeals court Friday affirmed that citizens have a First Amendment right to record on-duty police officers, rejecting a lower court’s decision last year that two Philadelphia residents were in the wrong by filming police in public.
“Recording police activity in public falls squarely within the First Amendment right of access to information,” Judge Thomas Ambro wrote for the majority in an opinion from the U.S. Court of Appeals for the 3rd Circuit.
“As no doubt the press has this right, so does the public,” Ambro said.
Five other federal appeals courts that have addressed the issue have held that there is a First Amendment right to record police in public, the opinion noted. Those rulings cover about half the states. The U.S. Supreme Court has never ruled on the topic.
But in an unusual and controversial ruling last year, U.S. District Judge Mark Kearney found that the free speech rights of two people were not violated when they were apprehended after filming cops.
The case involved Amanda Geraci and Richard Fields, who both attempted to photograph Philadelphia police officers in two separate incidents.
Geraci, a legal observer, was pushed to the ground by an officer as she attempted to take photographs of a 2012 anti-fracking protest. And Fields was arrested in 2013 after he took photos on his iPhone of police breaking up a college party. He was charged with obstructing a highway and other public passages.
Kearney said since neither Geraci nor Fields expressed their reason for recording police, such as intending to criticize the officers, the two had no First Amendment right to film.
A coalition of civil rights lawyers appealed the decision, and it won.
“I really think it’s an acknowledge that civilians, and not just the formal press, have a tremendously important role to play in how police use their power,” said Molly Tack-Hooper with the ACLU of Pennsylvania, one of the attorneys for the plaintiffs.
In reversing the trial court ruling on Monday, Ambro wrote that: “The value of the recordings may not be immediately obvious, and only after review of them does their worth become apparent.”
Rodney King case cited
The opinion opened with a reference to George Holliday, who in 1991 recorded a video of Los Angeles police officers beating Rodney King, which exposed the country’s racial tensions and spurred a week of deadly riots after the police were acquitted.
“Filming police on the job was rare then but common now,” Ambro wrote. “These recordings have both exposed police misconduct and exonerated officers from errant charges.”
Further, “this increase in the observation, recording and sharing of police activity has contributed greatly to our national discussion of proper policing,” he wrote.
Philadelphia Police Department directives instruct officers not to block or obstruct recordings unless the filming somehow jeopardizes the safety of an officer or suspect. The department has also published memorandums advising police to not interfere with recordings from private citizens.
Nonetheless, a year after the memo was released, the department’s Internal Affairs division received eight complaints from citizens saying police retaliated against them for recording their performance while on duty. That prompted further reminders to officers.
“It is indisputable that all officers in the Philadelphia Police Department were put on actual notice that they were required to uphold the First Amendment right to make recordings of police activity,” Ambro wrote. “From a practical perspective, the police officers had no ground to claim ambiguity about the boundaries of the citizens’ constitutional right here.”
City lawyers argued to the court that the city cannot be held liable for the officers’ actions, since officers have what’s known as qualified immunity, which shields police from having to pay damages in civil rights lawsuits.
The court agreed that the officers have legal immunity, but sent the case back to the trial court over the question of whether the city should be held responsible for the officers due to inadequate training or supervision. If the trial court finds the city is liable, the plaintiffs could demand the police department retrain officers and ask for damages for the alleged violation of Geraci’s and Fields’ Constitutional rights. City lawyers preferred the court not weigh in on the First Amendment claim, contending the immunity issue makes it moot, but the court pushed back.
“We reject this invitation to take the easy way out,” Ambro wrote. “Because this First Amendment issue is of great importance, and the recording of police activity is a widespread, common practice, we deal with it before addressing, if needed, defenses to liability.”
Tack-Hooper said Monday’s ruling is a win for citizens everywhere.
“It’s a beautiful victory for the power of ordinary people,” she said. “Just the act of holding up your phone when the police are out in public performing their duties is protected by the First Amendment.”