No, Officer, I Will Not Put The Camera Down
On July 7, 2017, the Court of Appeals for the Third Circuit held that there is a constitutionally protected right to record police officers who are engaged in their official duties while in public. (Fields v. City of Philadelphia, et al., Case №16–1651).
The opinion involved two separate cases dating from 2012 and 2013. In both cases, the plaintiffs began to record police activity that was occurring in public, and they did so without interfering in the police activity, itself. Nevertheless, both plaintiffs were accosted by police officers who had demanded that the plaintiffs stop recording them. One plaintiff, Ms. Geraci, was pinned against a post by an officer, prohibiting her from further recording an anti-fracking protest. She was not arrested. The other plaintiff, Mr. Fields, was detained, had his phone illegally seized and searched, and was then arrested for obstructing a highway or other public passage. The charges were later dropped when the officer failed to show for the hearing. (Interestingly, neither were arrested for “unlawfully recording an officer” — presumably because no such violation existed).
At issue in the case were two questions. First, whether there was a right to record police activities occurring in public under the First Amendment. Second, whether the officers involved were protected by qualified immunity because they could not have reasonably known such a right existed at the time of their conduct. On the former, the Court found that the right existed. On the second, the Court held that the officers were entitled to immunity because Third Circuit case law had not established the right so clearly that “every reasonable official would have understood that what he was doing violates that right.”
As an attorney and former law enforcement officer, I have never understood the theory that police officers were protected from public scrutiny in this fashion. The case law has existed for decades that tells us that a person has no reasonable expectation of privacy when in public places. Katz v. United States, 389 U.S. 347 (1967). So why, then, would police officers have some amorphous right to privacy in their public police conduct?
One of the phrases I have heard dozens of times from my former colleagues is, “for officer safety, I need you to [fill in the blank].” Officer Safety is a very real issue for officers, but it does not encompass many of the requests for which I have seen and heard it used — putting out a cigarette that sits in a car ten feet away, rolling a window all the way down when there is no apparent threat, handcuffing witnesses to crimes when there is no suspicion of involvement, etc. Likewise, in a case involving recording, officers might say that by recording the event, one or more officers is now distracted from his original duties and is focused on the one recording.
Now, in situations where the person seeking to record is interfering with the police officer’s activities, that conduct is not constitutionally protected. A couple of examples might be getting too close to a crime scene or impeding emergency vehicle traffic. And the Court said as much by saying that the right to record is not absolute: that it’s still subject to time, manner, and place restrictions (just like any other speech). Kelly v. Borough of Carlisle, 622 F.3d 248, 262 (3d Cir. 2010); Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85 (1977).
Recording devices can be an officers best friend, in fact, when he’s doing what ought. There have been plenty of officers exonerated by third-party (citizen) recordings showing a police encounter when the alleged victim claimed misbehavior where none existed. Conversely, recording devices have made it possible to identify officer misconduct where it would have otherwise been dismissed for lack of evidence. Recording devices create greater accountability to our public servants, but also serve to uphold the credibility of falsely accused officers. Recordings serve both the public and police interests.
On the issue of qualified immunity, my opinion is that the Court got it wrong. Judge Nygaard wrote a dissent in part and made a convincing argument that the officers reasonably should have known that their behavior violated the plaintiffs’ rights. He first points to the fact that every circuit court to have addressed the issue, came down the same way: there is a constitutional right to record police in public. More importantly, four of these cases had been published prior to the incidents involved here. Second, the Philadelphia police department had written a memorandum in 2011 (prior to the incidents) which stated that, “police should reasonably expect to be photographed, videotaped and or audibly recorded by members of the general public” and that they “shall not” prevent with this behavior, and “under no circumstances” were they to damage or destroy a recording device.
Given each of these preexisting pieces of information, which the officers knew or should have known, according to Judge Nygaard, the officers were not entitled to qualified immunity. Unfortunately, the majority disagreed.
The upside to the case is that there is no longer any ambiguity, feigned or otherwise, that will permit officers to prevent a citizen from engaging in the protected First Amendment right to record police activities occurring in the public forum. I do hope, though, that the general public not use their rights as a license to harass, demean, and degrade the men and women who everyday take on a role that puts them at great personal risk.
For another article on police legal cases, click here.
