Federal Appeals Court Rules that There is a First Amendment Right to Record the Police

PHILADELPHIA – A federal appeals court in Philadelphia today joined “a growing consensus” in acknowledging that there is a First Amendment right to record the police in public as they carry out their duties. In ruling in favor of two people arrested or detained by the Philadelphia police in separate incidents, a three-judge panel of the United States Court of Appeals for the Third Circuit recognized a right that has been established by at least five other federal appeals courts in similar cases.

Today’s ruling stems from the arrest of Rick Fields in 2013 while he recorded Philadelphia police breaking up a party and the detention of Amanda Geraci, who was detained by city police while observing and photographing an anti-fracking protest outside the Pennsylvania Convention Center in 2012.

“Government operates best in sunlight, and the police are not an exception,” said Reggie Shuford, executive director of the ACLU of Pennsylvania, which represented Fields and Geraci with cooperating counsel. “The First Amendment right to document the police at work is critical to promote transparency. We are grateful that the appeals court agrees.”

Fields was arrested in September 2013, after he stopped to take a photo with his iPhone of a large number of Philadelphia police officers breaking up a house party across the street. One of the officers approached him, asked if he enjoyed “taking pictures of grown men,” and ordered him to leave. After Fields refused, he was handcuffed and detained in a police van, and his phone was searched in an apparent attempt to find the recordings he had made that evening. He was charged with “obstructing the highway,” but the charge was later withdrawn.

Geraci is a trained legal observer who was detained by police while she was attempting to monitor police interactions during an anti-fracking protest outside the Pennsylvania Convention Center in September 2012. When Geraci attempted to take photos of police arresting a protestor, a police officer pushed Geraci up against a pillar and pinned Geraci across her throat. Other police officers quickly surrounded Geraci and the officer to block other legal observers from witnessing or recording the incident, although not before several photos were taken by Geraci’s fellow legal observers.

“The Court acknowledged that the ability to record police is of particular importance as it ensures that the public can hold government officials accountable for misconduct,” said Jonathan Feinberg of the law firm Kairys, Rudovsky, Messing, Feinberg & Lin LLP and one of the cooperating attorneys representing Fields and Geraci.

In 2016, a federal district court ruled against Fields and Geraci. Today’s ruling returns the cases back to the district court to hear arguments that the city’s failure to train its officers on the First Amendment right to record and photograph the police led to the incidents with Fields and Geraci.

“The police cannot operate in a shroud of secrecy,” said Molly Tack-Hooper, staff attorney for the ACLU of Pennsylvania, who argued the case before the appeals court. “The fundamental right to document police activity is crucial to deter misconduct and gather information about how police use their power. Today’s ruling strengthens that important concept.”

The ACLU of Pennsylvania has brought a series of five lawsuits aimed at stopping the Philadelphia Police Department’s illegal practice of retaliating against individuals who observe or record the police performing their duties. Fields and Geraci are represented by Molly Tack-Hooper and Mary Catherine Roper of the ACLU of Pennsylvania; John Grogan and Peter Leckman of Langer, Grogan & Diver, P.C.; Jonathan Feinberg of Kairys, Rudovsky, Messing, Feinberg & Lin LLP; and Seth Kreimer of the University of Pennsylvania Law School.

More information about these cases, including photos from both incidents, is available at www.aclupa.org/geraci and www.aclupa.org/fields.