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Third Circuit: First Amendment Protects Right to Record Police in Public

By George Khoury, Esq. | Last updated on

In a pair of cases out of the Third Circuit Court of Appeals, a three judge panel reversed a seemingly rogue lower federal district court ruling that refused to extend First Amendment protections to two individuals who photographed police in public. While the cases were remanded back to the lower federal court, the circuit court seemed to caution the parties that the defendants were likely to be immune from liability, regardless of the outcome of the appeal.

The cases are: Fields v. City of Philadelphia, et al., Case No. 16-1650, and Geraci v. City of Philadelphia, et al., Case No. 16-1651. Michael Fields was standing on the sidewalk video recording police as they were breaking up a college party. Fields was arrested simply for making the recording. Amanda Geraci was physically restrained, by the neck, when she attempted to photograph a police officer arresting a protester.

What's This Appeal About?

While the cases were individually filed, the court handled the appeal jointly as the federal district court dismissed both cases on the same mistaken legal grounds: taking a photograph does not inherently qualify as expressive conduct protected by the First Amendment. The Third Circuit panel pointed out that the federal district court was clearly wrong in this interpretation of photography and video recording, especially as it pertained to private individuals recording the public actions of public officials carrying out public duties.

In short, Justice Ambro explained that the right to access of information about public officials is protected by the First Amendment and that protection actually "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." The court expressly held that "recording police activity in public falls squarely within the First Amendment right of access to information."

Unfortunately for the two plaintiffs, Geraci and Fields, the court dismissed their claims against the individual officers on the grounds of qualified immunity. And while Justice Ambro would have also held the municipality immune from liability as well, the other two empanelled justices disagreed, requiring the case to be remanded as to the municipal defendants.

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