Scratch That, and Rewind It Back

Defense Digest, Vol. 23, No. 3, September 2017

By April L. Cressler, Esq.*

On July 7, 2017, the U.S. Court of Appeals for the Third Circuit threw in with the likes of the First, Fifth, Seventh, Ninth and Eleventh Circuits in finding that the First Amendment protects the recording of police officers engaged in their official duties while in public. See Fields v. City of Phila., 2017 U.S. App. LEXIS 12159, at *4 (3d Cir. July 7, 2017). It held that there is a First Amendment right of access to information about how our public servants operate in public.

Previously, the U.S. District Court for the Eastern District of Pennsylvania had dismissed the Section 1983 action filed against the City of Philadelphia and certain police officers, finding that there is no First Amendment right to observe and record police officers absent some other expressive conduct. Fields v. City of Phila., 2016 U.S. Dist. LEXIS 20840 (E.D. Pa. Feb. 19, 2016). The case revolved around two separate incidents in which Philadelphia police officers encountered, and in one cited case, two individuals who had been capturing police conduct on film, but were not commenting or questioning the police conduct at the time of the recordings.

In the first incident, Amanda Geraci, a member of a “police watchdog group,” was attending a protest at the Philadelphia Convention Center in September of 2012 when she observed police officers arresting a protestor. Geraci alleged that she attempted to move to a better vantage point for purposes of recording the arrest when she was pushed by an officer and pinned against a pillar, thus preventing her from recording the arrest.

In the second incident, which occurred in September of 2013, Richard Fields, then a sophomore at Temple University, observed a group of police officers breaking up what appeared to be a party across the street, which he began to photograph with his iPhone. Fields alleged that an officer made derogatory remarks to him when he noticed that he was photographing their actions and further ordered him to leave the scene. When Fields refused, he was arrested and cited for “Obstructing Highway and Other Public Passages.” His charges were later withdrawn when the officer failed to appear for the court hearing.

Both individuals later filed suit, alleging retaliation for their actions of recording police activity. In the Fields decision, the district court reasoned that the act of silent recording could only equate to speech sufficient to trigger the protections of the First Amendment if it constituted symbolic expression, similar to that of flag waiving or flag burning. However, Third Circuit Judges Ambro, Restrepo and Nygaard disagreed.

In their decision to remand the case, Judge Ambro acknowledged that “[w]e ask much of our police. They can be our shelter from the storm. Yet officers are public officials carrying out public functions, and the First Amendment requires them to bear bystanders recording their actions.” In an age where smart phones are the new norm and allegations of police misconduct make daily appearances on such easily accessible formats as Facebook Live, such a ruling is hardly surprising. To the contrary, the recent number of high-profile police-involved shootings almost necessitated such a ruling or else risk the possibility of creating a split amongst the Circuits.

Although the Court of Appeals in Fields ultimately found that the First Amendment’s right of access to information provides the public with the right to photograph, film or audio record the actions of police officers engaged in official activity in public areas, the right is not absolute. Thus, the act of recording could fall outside the protections of the First Amendment in situations where the recording interferes with an investigation or puts an individual’s safety at risk, including the safety of the officer.

Additionally, although numerous civil rights advocates were quick to claim victory, the court found that the officers were, nevertheless, entitled to qualified immunity. Despite the existence of a City of Philadelphia Police Department official policy clearly recognizing the right of a private citizen to record police activity, the court found that such a right was not clearly established at the time of the arrests of the two individuals bringing the claims of retaliation. The court stated, “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. Accordingly, the officers are entitled to qualified immunity.”

This particular decision certainly presents potential issues when defending First Amendment cases relating to the right to record police activity. Moreover, the granting of qualified immunity to the officers provides a strong argument for those pending (or lingering) cases dealing with just such an issue leading, arguably, up to the date of this decision.

*April is an associate in our Pittsburgh, Pennsylvania office. She can be reached at 412.803-3478 or alcressler@mdwcg.com.

_{Defense Digest, Vol. 23, No. 3, September 2017. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2017 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}