Following the lead of five other federal appeals courts, a three-judge panel of the U.S. Court of Appeals for the Third Circuit in Philadelphia ruled Friday that people have a First Amendment right to record police on the job in public.
The ruling by the three judges comes in the cases of two citizens – Richard Fields, in 2013 a Temple University sophomore, and Amanda Geraci, in 2012 a member of a Philadelphia police watchdog group called Up Against the Law — who were interrupted as they video-recorded police officers in public activity. The ruling reverses a federal judge's ruling last year that people did not necessarily have a constitutionally protected right to record police activity.
U.S. District Judge Mark A. Kearney had ruled against the ACLU of Pennsylvania, which filed the civil rights suit on behalf of Fields and Geraci. To be protected under the First Amendment, Kearney wrote, the videographer had to announce that he or she was recording as an act of protest or challenge to police.
Without that notice, Kearney wrote, police were free to stop the recording.
"We disagree on various fronts," wrote U.S. Circuit Judge Thomas L. Ambro in the panel's opinion. "Foremost is that the District Court focused on whether plaintiffs had an expressive intent, such as a desire to disseminate the recordings, or to use them to criticize the police, at the moment when they recorded or attempted to record police activity.
"This reasoning ignores that the value of the recordings may not be immediately obvious, and only after review of them does their worth become apparent."
Ambro wrote that for the protection of the First Amendment to "have meaning the amendment must also protect the act of creating that material."
The appeals panel — Ambro and Circuit Judges L. Felipe Restrepo and Richard L. Nygaard — remanded the case to Kearney for further proceedings about whether the city might be held liable for damages for its officers' conduct.
Lauren Hitt, a spokeswoman for Mayor Kenney, said the mayor would have no comment because the case was still open.
The Third Circuit decision was hailed by the ACLU and lawyers for other civil rights groups involved in the appeal.
"Government operates best in sunlight, and the police are not an exception," said Reggie Shuford, executive director of the ACLU of Pennsylvania.
Jonathan Feinberg of the law firm Kairys, Rudovsky, Messing, Feinberg & Lin, one of the cooperating attorneys representing Fields and Geraci, said "the ability to record police is of particular importance as it ensures that the public can hold government officials accountable for misconduct."
The first case involved a September 2012 demonstration at the Convention Center against hydraulic fracturing, or fracking, a technique for releasing natural gas from shale formations.
Geraci, a self-described legal observer, routinely video-recorded interactions between civilians and police during protests. When she approached officers arresting a demonstrator, the panel's ruling says, Geraci claimed an officer "attacked her" by 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, Fields was charged with a summary offense for photographing about 20 officers trying to break up a party in the 1900 block of North 18th Street near the Temple campus.
One officer ordered Fields to leave. When he refused, he was handcuffed, searched, and held for nearly a half-hour in a van, and his phone was searched. The charges were withdrawn when the officers did not show up at the court hearing.
The police actions and the lawsuit were filed three years after former Police Commissioner Charles H. Ramsey 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."