In a unanimous decision Friday, the Third U.S. Circuit Court of Appeals ruled that filming police officers performing their duties in public is a right guaranteed by the First Amendment. This decision follows those of five other Circuit Courts of Appeals, all of which agree that the Constitution protects the right to record.
At the core of the case are two separate occasions in Philadelphia in which police officers interfered with citizens’ recording of their actions.
In 2012 while filming an anti-fracking protest, Amanda Geraci started capturing the arrest of another protester. The officer involved allegedly pinned Geraci against a pillar and stopped her from recording the events. Geraci was a well-known member of the local police watchdog group. Perhaps this had something to do with the interference?
In another, more disturbing instance a year later, Richard Fields, a Temple University sophomore, was using his cell phone to film police breaking up a house party. An officer reportedly asked him if he “like[d] taking pictures of grown men” and asked Fields to leave. When Fields refused, the officer arrested him for “Obstructing Highway and Other Public Passages.” The officer then proceeded to go through Fields’ cell phone, looking at his personal photographs and videos – without a warrant. Although the charges were dropped because the officer did not appear in court, Fields filed a lawsuit.
The Third Circuit agreed that Geraci and Field’s rights were violated. Judge Thomas Ambro explained the importance of the recordings during the hearing:
“Bystander videos provide different perspectives than police and dashboard cameras, portraying circumstances and surroundings that police videos often do not capture,” he continued. “Civilian video also fills the gaps created when police choose not to record video or withhold their footage from the public.
Although Geraci and Field’s case resulted in a victory with the 3rd Circuit unanimously agreeing citizen’s rights to film officers on duty, their joint lawsuit against the officers who violated their rights did not bear any fruit. Two of the three judges on the panel agreed that this right was not, at the time of the incidents, “clearly established” and consequently that police had qualified immunity, preventing the suit.
The problem is, those rights were clearly established and known by the Philadelphia police department itself. According to court documents, the department sent out a memo in 2011 to the entire department alerting personnel to citizens’ rights to film, as well as a “more detailed departmental directive in 2012.” Both of these occurred before Geraci and Fields were retaliated against for filming. As the documents state, “The department even required sergeants to read it aloud at roll call and for each officer to read and sign a copy of it.”
Judge Richard Nygaard dissented from his fellow judges on the qualified immunity ruling, writing:
“Although the directives declared a First Amendment right well ahead of this court, the Philadelphia Police Department Commissioner had a desire to ‘get out ahead’ of what he presciently viewed as an inevitable ruling,” Nygaard wrote. “With all of this, 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.”
The American Civil Liberties Union (ACLU) has a “Know Your Rights” guide for protesters and photographers. In it, it cautions “police officers may legitimately order citizens to cease activities that are truly interfering with legitimate law enforcement operations.”
As long as citizens remain a safe distance from the activity so as not to interfere or put their own lives in danger, the law states that they have the right to film police activity. This doesn’t mean police officers are very happy with the added distraction. For some, it is another thing to worry about; more citizens to watch and protect. For others, it is a concern that their bad behavior just might be caught on camera. As Jay Stanley told The Atlantic:
Photography is a form of power, and people are loath to give up power, including police officers. It’s a power struggle where the citizen is protected by the law but, because it is a power struggle, sometimes that’s not enough.