Filming Encounters With Police is a Constitutional Right, Federal Court Rules

The ruling means that citizens in half of U.S. states are now protected in exercising this right.

REUTERS

The right to film encounters with police in public areas is protected by the First Amendment, the Philadelphia-based Third Circuit Court of Appeals ruled on Friday. The milestone ruling means that about half of states across the country now protect citizens who record situations involving law enforcement — an issue that has not yet made it to the Supreme Court.


"We ask much of our police," wrote Judge Thomas Ambro for the majority. "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 to promote the access that fosters free discussion of governmental actions, especially when that discussion benefits not only citizens but the officers themselves."

The First, Fifth, Seventh, Ninth and Eleventh Circuits have all already issued similar rulings.

While the two incidents in this particular case had nothing to do with racial bias in police encounters, which has largely been brought to the public's attention thanks to citizens' recordings, the judges open their opinion by referencing the 1991 recording of police beating Rodney King in Los Angeles.

"Filming police on the job was rare then but common now," Ambro writes, adding, "These recordings have both exposed police misconduct and exonerated officers from errant charges."

Richard Fields v. the City of Philadelphia involved two separate encounters with Philadelphia police officers. Fields was arrested in 2013 after he filmed police breaking up a house party on his iPhone. He was a student at Temple University at the time. According to court documents, an officer asked Fields if he "like[d] taking pictures of grown men." Fields was told to leave but refused, so the officer "arrested him, confiscated his phone, and detained him." He was charged with obstructing highway and other public passages" but the charges were dropped when the officer involved did not show up for court, documents state.

The year before Amanda Geraci, a member of police watchdog group "Up Against The Law," filmed the arrest of a protestor at an anti-fracking demonstration, according to court records. Geraci wore a pink bandana "that identified her as a legal observer," the ruling notes. When she tried to record the arrest she "did so without interfering with the police." However, "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." Geraci was not arrested, according to the document.

Friday's decision rejected that of U.S. District Judge Mark Kearney's last year. Kearney found "no First Amendment right under our governing law to observe and record police officers absent some other expressive conduct."

In the federal court, though, Ambro wrote, "This case 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."

The ruling does not mean that citizens are entitled to film police in any given situation, though. For one, the ruling designates that recordings are protected in public places. Also, an exception may be made if there are "countervailing concerns."

"If a person's recording interferes with police activity, that activity might not be protected," the ruling states. "For instance, recording a police conversation with a confidential informant may interfere with an investigation and put a life at stake."

The judges make an important point in their opinion, one that has been noteworthy in controversial encounters with police over the last few years:

"Bystander videos provide different perspectives than police and dashboard cameras, portraying circumstances and surroundings that police videos often do not capture," the judges state. "Civilian video also fills the gaps created when police choose not to record video or withhold their footage from the public."

Despite determining that Fields and Geraci had the right to record the incidents in question, the judges also ruled 2-1 that the police officers in question should be granted qualified immunity because they could not definitively say that all Philadelphia police officers were aware of the "constitutional right" at the time of the incidents.

Judge Nygaard dissented on this part of the ruling, arguing that "in light of the social, cultural, and legal context in which this case arose, … no reasonable officer" could have been unaware that hindering such recordings would violate one's constitutional rights."

Notably, Philly.com reported, "The police actions and the lawsuit were filed three years after former Police Commissioner Charles H. Ramsey issued a memo to all Philadelphia officers saying they 'should reasonably anticipate and expect to be photographed, videotaped, and/or audibly recorded by members of the general public.'"

While Friday's ruling serves as a victory for the people, one thing the judges cannot set precedent for is how juries will use recorded evidence. In some cases, it is not enough to obtain justice.

Most recently, in the case of Philando Castile, two separate videos — one a bystander recording, another a police dash cam recording — were not enough to implicate an officer of wrongdoing.

Last year, St. Anthony Police Department Officer Jeronimo Yanez shot and killed Castile following a traffic stop for a broken taillight. Castile disclosed that he had a firearm as well as a permit allowing him to carry it.

"Sir, I do have to tell you I have a firearm on me," Castile said.

"Okay, okay," Yanez said. "Don't reach for it, though. Don't pull it out."

"I'm, I, I was reaching for —," Castile started.

"Don't pull it out," Yanez interrupted.

"I'm not pulling it out," Castile said.

Within seconds Yanez reached into the car, then fired seven shots and hit Castile five times, including twice in the heart.

The dashboard camera video does not clarify whether Castile had reached for his gun he told the officer he was carrying. But last month, Yanez was acquitted of the criminal charges of manslaughter and reckless discharge of a firearm in relation to Castile's death.

Diamond Reynolds, Castile's girlfriend, streamed the encounter on Facebook Live after Castile was shot. She calmly claimed in the video that a police officer pulled over Castile for a broken brake light and he was shot. Reynolds also said that Castile told the officer he was carrying a firearm, with a permit. And, as he was reaching for his wallet to get his identification, the cop began shooting.

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