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Media Alerts - Richard Fields v. City of Philadelphia - Third Circuit
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July 10, 2017
  Richard Fields v. City of Philadelphia - Third Circuit
Headline: Third Circuit Determines that Recording Police Officers in Their Official Duties is a First Amendment Right; Police Officers are Granted Qualified Immunity

Area of Law: First Amendment

Issue(s) Presented: Is there a First Amendment right to record police activity in public? If so, was this right sufficiently established to overcome qualified immunity?

Brief Summary:

The Third Circuit held that the First Amendment protects an individual's right to record police officers performing their official duties in public areas. It rejected the lower court's decision limiting constitutional protection based on the intent of the recorder, holding that recording is protected regardless of the recorder's intent to share the recording. However, the Third Circuit held that the officers were entitled to qualified immunity because, at the time of both incidents, the constitutional right that they violated was not clearly established. The Court did not make a ruling on municipal liability because the District Court did not have the opportunity to make a first judgment.

Extended Summary:

Amanda Geraci was attending a protest when she began to record a police officer arresting a protestor. When the police noticed, an officer pushed her against the wall so that she would be unable to film the arrest. She was not arrested. Similarly, Richard Fields was recording the police while they broke up a party. When he refused to stop filming, he was arrested and his phone was confiscated. While being detained, the officer searched through the videos on his phone. He was released with a citation, which was eventually dropped. Both filed claims under 42 U.S.C. ยง 1983, against the City of Philadelphia and individual police officers. The Plaintiffs alleged that their First Amendment right to record was violated by these officers. The District Court granted summary judgment in favor of the officers and determined that the Plaintiffs' activities were not protected by the First Amendment because the act of recording was not expressive conduct.

The Third Circuit reversed, holding that expressive intent does not need to be present at the moment the recording takes place. Instead, an individual might not appreciate the content of the recording until afterwards. The First Amendment should provide the opportunity to use a recording in an expressive manner. The Court notes the importance of information about police activity and how recordings help to provide accurate information. For these reasons, the Court held that the First Amendment protects the recording of police officers performing their official duties in public, consistent with reasonable time, place, and manner restrictions. A recording that interferes with police activity might not be protected under the First Amendment. However, the Plaintiffs involved in this case did not interfere with the police activity.

However, the Court also found that the police officers are entitled to qualified immunity because this First Amendment right was not clearly established when the violation took place. The right to record police officers in their official duties was not a right that had been established in previous opinions. Plaintiffs argued that the Police Department's policies should be enough to clearly establish the First Amendment right. The Court determined that these policies were not sufficient to make officers understand the constitutional right to record.

The Court remanded the issue of municipal liability to allow the District Court the first opportunity to make this determination.

Circuit Judge Nygaard concurred in part and dissented in part, agreeing with the holding that recording police officers in their official duties is a First Amendment right. However, he would hold that this right was clearly established and therefore, qualified immunity is inappropriate.

The full opinion can be found at

Panel: Ambro, Restrepo, and Nygaard, Circuit Judges

Argument Date: May 9, 2017

Date of Issued Opinion: July 7, 2017

Docket Number: Nos. 16-1650 and 16-1651

Decided: Reversed and Remanded

Case Alert Author: Kristina Flatley

Counsel: Jonathan Feinberg, John Grogan, Peter Leckman, Seth Kreimer, Mary Roper, and Molly Tack-Hopper, Counsel for Appellants; Craig Gottlieb, Counsel for Appellees; Dorothy Hickok, Alfred Putnam, Mark Taticchi, and Ilya Shapiro, Counsel for Amicus Appellant Cato Institute; Eli Segal, Counsel for Amicus Appellant Society for Photographic Education; Sharon McGowan, April Anderson, and Tovah Calderon, Counsel for Amicus Appellant United States of America; Bruce Brown and Gregg Leslie, Counsel for Amicus Appellant Reporters Committee for Freedom of the Press and 31 Media Organizations; Sophia Cope and Adam Schwartz, Counsel for Amicus Appellant Electronic Frontier Foundation; Robert LaRocca, Counsel for Amicus Appellant First Amendment Law Professors; Patrick Geckle, John Burton, and David Milton, Counsel for Amicus Appellant National Police Accountability Project; Jason Gosselin, John Whitehead, Douglas McKusick, and Christopher Moriarty, Counsel for Amicus Appellant Rutherford Institute.

Author of Opinion: Circuit Judge Ambro

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 07/10/2017 09:51 AM     3rd Circuit  

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