A U.S. court has ruled that citizens have “no constitutional” rights to record police officers on their cellphones, regardless of whether cops are acting unlawfully.
Judge Mark Kearney in Philadelphia said that citizens must explicitly explain to cops that they are recording them for the purpose of criticizing police – otherwise face arrest.
“We find there is no First Amendment right under our governing law to observe and record police officers absent some other expressive conduct,” Kearney said in reference to two cases involving Philadelphia police.
Standing silently with a phone or camera doesn’t cut it, he said.
His opinion conflicts with federal court opinions elsewhere in the country and has been appealed.
The ruling hasn’t prompted police in the Lehigh Valley and elsewhere in Pennsylvania to change policies and shouldn’t deter people from recording because it’s not illegal.
“Even if there were no constitutional rights to record the police, that still doesn’t make it a crime to record the police,” said Molly Tack-Hooper, an attorney with the American Civil Liberties Union in Philadelphia who is working on the cases.
Yet the ruling is important because if the appeal fails, that could clear the way for state lawmakers to try to pass legislation making it illegal to record police, as there would be no constitutional barrier, Tack-Hooper said.
An attempt to do that would be extremely misguided, but I could see someone in Harrisburg trying.
Lawmakers already have pitched other needless legislation to supposedly protect police, such as pending House Bill 1538. It would grant anonymity to officers involved in the “discharge of a firearm or the use of force” unless the officer is charged with a crime.
If no charge is filed, the officer’s identity would be kept secret to protect the “officer or their immediate family.”
Last year, a lawmaker in Texas proposed legislation that would have made it illegal for people other than reporters to record or photograph police within a certain distance. The bill was scrapped amid criticism.
Police shouldn’t fear being recorded. Many departments have cameras in their vehicles, on their uniforms and mounted all over town, video that could be used against us if we did something wrong. Officers should be subject to the same oversight.
Bystanders have documented police actions or the aftermath of their actions in the controversial deaths of several unarmed black men in recent years, including Freddie Grayin Baltimore; Michael Brown in Missouri; Walter Scott in South Carolina; and Eric Garnerin New York. Plastered on social media, the videos horrified people, prompting protests and lawsuits, and forcing authorities to investigate the incidents and re-examine policies.
Witness videos have played a role in local cases, too, including the 2014 arrest and subsequent acquittal of the former Allentown police chief’s son, who argued he should never have been confronted by undercover Lehigh County detectives, whom he mistook as road-raging motorists.
Other videos showed an Allentown officer wrestling street singer James Ochse to the ground outside a downtown restaurant last year and Allentown officers kneeing and punching Cristhian Ramirez as they handcuffed him after a traffic stop downtown in 2014. Ramirez settled an excessive-force lawsuit for $25,000. In settling the case, the city did not admit any wrongdoing.
Allentown resident Eli Heckman has a federal lawsuit pending against Allentown police, alleging he was grabbed and shoved “in an extremely rough manner” after filming a struggle between officers and a man in 2014. His suit alleges he had a right to peaceably occupy a public sidewalk and that “the recording served a major purpose of the First Amendment which protects the free discussion of governmental affairs.”
Most charges against the man who was struggling with officers in the video later were dropped, something his attorney attributed to the video.
Heckman sued prior to Kearney’s ruling. His lawsuit contends, contrary to Kearney’s opinion, that he “need not assert any particular reason for filming police in the public arena.”
In court documents responding to Heckman’s lawsuit, the lawyer for the city and its officers argued the point that Kearney later made — the federal court in this region “has never recognized a clearly established First Amendment right to video-record police actions.”
Tom Gross, executive director of the Pennsylvania Chiefs of Police Association, told me police chiefs aren’t asking about the ruling or operating differently because of it.
He said there’s still a lot of “gray area” regarding recording of police and noted other federal court rulings strongly support the public’s right to record.
Police in Allentown and Easton have no formal policies regarding video, but consider the public to have the right to record if they aren’t interfering with officers or creating a hazard.
“What we do stress to our officers, as long as individuals are not interfering with the police activity that is taking place, they have a general right to record,” Allentown police Chief Keith Morris said.
Police in Easton haven’t had problems, Chief Carl Scalzo said, including when a group that films DUI checkpoints showed up at one in Easton.
“They did their thing, we did ours,” he said.
The federal case that Kearney ruled on stems from two lawsuits by people alleging their constitutional rights were violated by Philadelphia police.
Richard Fields, a Temple University student, stood on a sidewalk and used his cellphone to photograph officers breaking up a party across the street in 2013.
According to his lawsuit, Fields did not speak to anyone and was told by an officer to leave. He refused and the officer detained him in a police van, searched his phone and cited him for “obstructing highway and other public passages.” The citation later was withdrawn.
Amanda Geraci, a self-described “legal observer” of police, claimed in her lawsuit that an officer prevented her from recording an arrest at a fracking protest in 2012. She was not arrested.
In his opinion, Kearney, citing Supreme Court cases, ruled that not all actions can be labeled “speech” and that Fields and Geraci were not engaged in “expressive conduct” because they hadn’t “asserted anything to anyone. There is also no evidence any of the officers understood them as communicating any idea or message.”
Kearney said rulings in favor of people who had recorded or photographed police “all contained some element of expressive conduct or criticism of police officers and are patently distinguishable from Fields’ and Geraci’s activities.”
He acknowledged that federal courts in other parts of the country have ruled otherwise, but said that doesn’t matter.
“While we understand these opinions, the present law in this circuit does not recognize a First Amendment right to observe and record without some form of expressive conduct, and photographing police is not, as a matter of law, expressive activity,” Kearney wrote.
While he rejected claims that Fields’ and Geraci’s First Amendment rights were violated, their cases remain pending as to whether there was a violation of their Fourth Amendment rights to protection against unwarranted search and seizure.
The appeal of his dismissal of their First Amendment claims is pending at the 3rd U.S. Court of Appeals in Philadelphia. I’ll write more when the case is heard.
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