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Can Citizens Photograph the Police?

Last month, U.S. District Court Judge Mark Kearney of the Eastern District of Pennsylvania issued a ruling in two consolidated cases, Fields v. City of Philadelphia and Geraci v. City of Philadelphia.  He held that, absent “any state purpose of being critical of the government,” the rights to freedom of expression and speech are not applicable when recording the activities of police officers.

This ruling is in contrast to decisions by the First, Ninth, and Eleventh Circuits.  Those courts have generally held that the First Amendment protects a right to video-record and photograph in public places, especially when one is recording public servants such as the police.

Here, joint lawsuits were filed by Amanda Geraci and Richard Fields.  In 2013, Fields, an undergraduate at Temple University, was recording about 20 police officers outside a house party on campus.  When asked to leave by officers, Fields refused and was subsequently detained and handcuffed.  Fields’ reason for filming the officers was that he “just thought that would make a great picture.” 

Geraci, a self-described “legal observer,” had filmed an environmental protest in Center City Philadelphia a year earlier. When she moved close to an officer arresting a protester, she said she was physically restrained by an officer and prevented from recording the arrest.

Fields and Geraci subsequently sued the city, alleging that they faced retaliation for exercising their First Amendment rights.  The court ruled that the First Amendment does not apply to photographing police unless there is a specific action challenged by a citizen: 

We have not found, and the experienced counsel have not cited, any case in the Supreme Court or this Circuit finding citizens have a First Amendment right to record police conduct without any stated purpose of being critical of the government. Absent any authority from the Supreme Court or our Court of Appeals, we decline to create a new First Amendment right for citizens to photograph officers when they have no expressive purpose such as challenging police actions. The citizens are not without remedy because once the police officer takes your phone, alters your technology, arrests you or applies excessive force, we proceed to trial on the Fourth Amendment claims.
 

The court did, however, allow Geraci’s claim of excessive force and Fields’ claims of false arrest and unreasonable search to go to trial.

Judge Kearney’s ruling was not welcome news for everyone.  In fact, soon after the ruling came down, the Pennsylvania chapter of the American Civil Liberties Union stated that the ACLU was going to file an appeal.  The Executive Director of the ACLU-PA, Reggie Shuford, stated “[t]he freedom to monitor the police without fearing arrest or retaliation is one of the ways we distinguish a free society from a police state. Every court that has addressed this issue has ruled that the right to record the police performing their duties in public is at the core of what the First Amendment protects. Judge Kearney’s ruling is an outlier, and we intend to appeal it.”  On March 21, 2016, the ACLU filed its appeal with the Third Circuit Court of Appeals.

This appeal should be an interesting one for the Third Circuit, which has not made any previous rulings about whether and how far the First Amendment permits citizens to film the police.  Whether the Third Circuit will follow the First, Ninth, and Eleventh Circuits, or uphold Judge Kearney, remains to be seen.