The matter of whether citizens have a right to record police has grown in importance in recent years, as video clips of police encounters with unarmed black men and women circulate rapidly on social media, growing more high-profile with each share. That footage helped spark the Black Lives Matter movement and a national debate over police reform and technology’s role in it. As my colleague Robinson Meyer noted in 2015, citizens who record incidents of police misconduct can be fulfilling a civic duty, of sorts, by exposing official wrongdoing.
The two plaintiffs in Philadelphia, Richard Fields and Amanda Geraci, brought the lawsuits that led to the Third Circuit’s ruling after separate incidents. Geraci, a member of a local police-watchdog group, was filming officers arresting a protester during an anti-fracking demonstration in the city in 2012 when one of them “abruptly pushed” her against a pillar to obstruct her from recording the arrest. The following year, Fields used his iPhone to film police breaking up a house party across the street. An officer arrested Fields, then a Temple University sophomore, and searched his phone for the videos; Geraci was not arrested. They filed lawsuits against the city of Philadelphia under federal civil-rights laws shortly thereafter.
In response, the city asked the federal district court for summary judgment in its favor. Philadelphia did not argue against Fields and Geraci’s joint claim they had a First Amendment right to film police officers, which had by then been validated by at least one circuit court elsewhere in the country. Indeed, the police department had instructed its officers multiple times that such a right existed prior to the interactions with both plaintiffs. Instead the city argued its officers were protected by qualified immunity, a legal doctrine that shields government officials from liability unless they violate a “clearly established” constitutional right.
The district court nonetheless rejected the plaintiffs’ First Amendment argument, citing the lack of existing precedent from the Third Circuit or the U.S. Supreme Court. The judge noted that neither Fields nor Geraci testified they had an intent to publish or distribute the footage when they took it. Accordingly, the court said, “we decline to create a new First Amendment right for citizens to photograph officers when they have no expressive purpose such as challenging police actions.”
Fields and Geraci appealed that ruling to the Third Circuit, which rejected the lower court’s reasoning. “This case is not about whether Plaintiffs expressed themselves through conduct,” Ambro wrote. “It is whether they have a First Amendment right of access to information about how our public servants operate in public.
“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.” In addition to a video’s journalistic value, Ambro also cited its occasional utility for law-enforcement purposes, ranging from Justice Department investigations of civil-rights violations to exonerations of police officers accused of wrongdoing.