Yet another federal appeals has affirmed the constitutional right of Americans to record the actions of police officers as long as they’re not interfering with their work or capturing a conversation with a confidential informant.
Similar decisions already have been made by the 1st, 5th, 7th, 9th and 11th Circuits. The latest, by the 3rd U.S. Circuit Court of Appeals, explains that such activity is “ubiquitous.”
The court concluded the officers who retaliated against two people who recorded their actions shouldn’t be sued because the precedent in the circuit had not clearly been established.
But the judges said there is no doubt that Americans have the right to record.
“This case involves retaliation,” the panel of judges agreed. “Richard Fields and Amanda Geraci attempted to record Philadelphia police officers carrying out official duties in public and were retaliated against even though the Philadelphia Police Department’s official policies recognized that ‘[p]rivate individuals have a First Amendment right to observe and record police officers engaged in the public discharge of their duties.’
“No party contested the existence of the First Amendment right. Yet the district court concluded that neither plaintiff had engaged in First Amendment activity because the conduct – the act of recording – was not sufficiently expressive. However, this is not about whether plaintiffs expressed themselves through conduct.
“It is whether they have a First Amendment right of access to information about how our public servants operate in public.”
Geraci was a part of a police watchdog group, and as police were arresting an anti-fracking protester, she “moved to a better vantage point to record the arrest and did so without interfering with the police.”
“An officer abruptly pushed Geraci and pinned her against a pillar for one to three minutes, which prevented her from observing or recording the arrest.”
Fields watched as officers broke up a house party across the street from where he was located and decided to video it. An officer then arrested him, confiscated his phone and detained him.
The appeals court said the two had a right to record the officers, concluding there would be only limited circumstances in which they could not. An example would be an officer interviewing a confidential informant or an undercover officer.
And those making videos should not get in the way of officers.
“The First Amendment protects the public’s right of access to information about their officials’ public activities,” the court said, “It goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.”
It said the misbehaving officers, however, should not be sued because the circuit had not ruled that “such a right exists.”
“We ask much of our police. They can be our shelter from the storm. Yet officers are public officials carrying out public functions, and the First Amendment requires them to bear bystanders recording their actions. This is vital.”
One judge on the panel went further. Not only was there a right to record officers, police department policies made the officers aware of that right, and the officers should not have been granted immunity from lawsuits.
Constitutional attorney John W. Whitehead, president of the Rutherford Institute, said police body cameras “will never serve as an effective check on police misconduct as long the cameras can be turned on and off at will and the footage remains inaccessible to the public.”
“However, technology makes it possible for Americans to record their own interactions with police and they have every right to do so without fear of arrest or physical assault,” he said.
“The ability to record police interactions in public provides for greater accountability when it comes to police interactions with the citizenry and should be preserved as a necessary right of the people.”