Civil rights lawyers said Wednesday that they intend to appeal a federal court ruling in Philadelphia that citizens do not necessarily have a right protected by the First Amendment to record police activity.
In an opinion issued Friday, U.S. District Judge Mark A. Kearney wrote that unless a videographer announces the recording as an act of protest or a challenge to officers, police are free to stop it.
"While we instinctively understand the citizens' argument, particularly with rapidly developing instant image sharing technology, we find no basis to craft a new First Amendment right based solely on 'observing and recording' without expressive conduct," Kearney wrote.
But in an age of expanding surveillance - from instant cellphone photo sharing to increased use of police body cameras - the American Civil Liberties Union and its partners in the case were not alone in raising an eyebrow at Kearney's conclusions.
Civil rights lawyers say the public's right to record images has been established in other courts, including U.S. appellate courts based in Boston, Chicago, and Atlanta. Kearney's ruling also landed in a city with a tumultuous history of conflict over public recording of police activity.
"Without a protected right to film officers, the ability of the public to monitor police activity is really reduced," said Mary Catherine Roper, one of the ACLU lawyers involved in the two cases on which Kearney ruled. "We know how effective video has been in creating a conversation about police accountability. Video does not always show police officers are misbehaving, but without it, it's really hard to convince people of misconduct by the authorities."
The ruling also appears to pit Kearney against stances by former Police Commissioner Charles H. Ramsey, who in 2011 issued a memo to all Philadelphia officers saying they "should reasonably anticipate and expect to be photographed, videotaped and/or audibly recorded by members of the general public."
Since then, the ACLU of Pennsylvania has led a group of civil rights lawyers in bringing cases involving civilians who were challenged or arrested while recording police carrying out their work.
In 2014, the group launched a social media initiative under the Twitter hashtag #PACopWatch to draw attention to officers who continued to ignore the Police Department's policy.
Both cases Kearney decided in Friday's opinion came long after Ramsey weighed in.
The first involved a self-described legal observer, Amanda Geraci, who routinely videotaped interactions between civilians and police during public protests. When she approached officers arresting a protester at a September 2012 demonstration against hydraulic fracturing outside the Convention Center, she claimed, an officer "attacked her" by physically restraining her against a pillar and preventing her from recording the arrest. Geraci was not arrested or cited during the incident.
In the second case, a year later, a Temple University junior was charged with a summary offense for photographing about 20 officers trying to break up a party. Rick Fields snapped photos on the 1900 block of North 18th Street and quickly drew the ire of officers, according to his lawsuit.
One officer ordered Fields to leave. When he refused, he was handcuffed, searched, and held for nearly a half-hour in a police van. Once Fields was released, the officer issued him a citation for "standing in the area of a police invest[igation] videotaping w phone." Fields' phone was returned with indications that it had been searched for photographs, his lawyers said in court filings.
In his opinion, Kearney withheld judgment on whether officers in either case crossed a line in seizing the recording devices or detaining Fields. Geraci and Fields also had sued alleging that police had violated their Fourth Amendment protections against unreasonable search and seizure.
Kearney limited his review to whether Fields and Geraci had any protected free-speech right to record the officers in the first place. He suggested that some taping of police activity might be protected under the First Amendment as an act of criticism or protest, but noted that in neither case did Geraci or Fields say as much to officers.
"Neither uttered any words to the effect he or she sought to take pictures to oppose police activity," Kearney wrote. "Their particular behavior is only afforded First Amendment protection if we construe it as expressive conduct. . . . There is also no evidence any of the officers understood them as communicating any idea or message."
Kearney said the U.S. Court of Appeals for the Third Circuit had yet to issue a definitive ruling, only going as far as saying in a 2010 case that "videotaping or photographing the police in performance of their duties on public property may be protected activity."
Paul Hetznecker, a civil rights lawyer who represented a photojournalist arrested in 2010 for recording police at a protest in Philadelphia, said he found Kearney's findings remarkable.
"Frankly, I'm surprised," he said. "Gathering information for dissemination is a fundamental part of what we do under the First Amendment, and videotaping a police officer conducting their duties in a public space is a fundamental example of gathering information."
Hetznecker noted that at least two other federal judges in Philadelphia had previously recognized some First Amendment right to record. In one of those cases, however, the plaintiff had expressly stated his intent in recording what he deemed unsafe vehicle inspections by officers stopping trucks along state highways.
The other instance stemmed from a series of cases the ACLU and partners at various civil rights law firms brought in 2013 to draw attention to numerous arrests following Ramsey's 2011 memo.
Roper said Kearney's ruling could throw that into question.
She said that lawyers representing Fields and Geraci - a coalition including lawyers from the ACLU, the University of Pennsylvania, and the Philadelphia public interest law firms Kairys, Rudovsky, Messing & Feinberg and Langer, Grogan & Diver - intended to abandon their client's Fourth Amendment claims and seek an immediate appeal before the Third Circuit on the First Amendment issue.
"We don't think the judge got it right at all," she said. "It's really important to us to get the right ruling on this, so we're going to keep working at it.