Fields v. City of Phila.

• Decision Date: 19 February 2016
• Docket Number: CIVIL ACTION NO: 14–5264,CIVIL ACTION NO: 14–4424
• Citation: 166 F.Supp.3d 528
• Parties: Richard Fields v. City of Philadelphia, et al. Amanda Geraci v. City of Philadelphia, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

166 F.Supp.3d 528

Richard Fields

v.City of Philadelphia, et al.

Amanda Geraci

v.City of Philadelphia, et al.

CIVIL ACTION NO: 14–4424

CIVIL ACTION NO: 14–5264

United States District Court, E.D. Pennsylvania.

Signed February 19, 2016

Jonathan H. Feinberg, Kairys Rudovsky Messing & Feinberg LLP, Molly M. Tack–Hooper, Mary Catherine Roper, ACLU Foundation of PA, John J. Grogan, Peter E. Leckman, Langer Grogan & Diver PC, Seth Kreimer, Philadelphia, PA, for Richard Fields.

Amanda C. Shoffel, John Joseph Coyle, Michael R. Miller, City of Philadelphia Law Department, Philadelphia, PA, for City of Philadelphia, et al.

MEMORANDUM

KEARNEY, DISTRICT JUDGE

In two incidents a year apart, Philadelphia police officers possibly violated the Fourth Amendment when encountering citizens either before or after the citizens captured police conduct on film. The citizens never told the police why they were capturing images of the police interacting with people they did not know. They were watching their police officers in action and wanted to capture the images because, at least for one of the citizens, “[i]t was an interesting scene. It would make a good picture” and for the other because she is a legal observer trained to observe the police. The question today is whether citizens also enjoy a First Amendment right to photograph police absent any criticism or challenge to police conduct. The citizens urge us to find, for the first time in this Circuit, photographing police without any challenge or criticism is expressive conduct protected by the First Amendment. While we instinctively understand the citizens' argument, particularly with rapidly developing instant image sharing technology, we find no basis to craft a new First Amendment right based solely on “observing and recording” without expressive conduct and, consistent with the teachings of the Supreme Court and our Court of Appeals, decline to do so today.

We begin by reminding the parties we are not addressing whether the officers' conduct violated the Fourth Amendment which awaits the jury's credibility evaluation. We are also not addressing a First Amendment right to photograph or film police when citizens challenge police conduct. We focus only on the facts in this case. Our analysis must temporally separate the police's taking of a cell phone, arresting the citizen or applying excessive force. While courts applying the Fourth Amendment have long held police may not seize phones or arrest citizens without probable cause and cannot use excessive force, this case asks us only to study one snapshot in time through the lens of the First Amendment only: whether photographing or filming police on our portable devices without challenging police is expressive conduct protected by the First Amendment.

Richard Fields' conduct

On September 13, 2013, Temple University student Richard Fields (“Fields”) stopped walking on the Broad Street sidewalk to use his cell phone to photograph approximately twenty (20) police officers standing outside a home hosting a party.¹

He thought “what a scene, and ... took a picture from the other side of the street.”² “It was an interesting scene. It would make a good picture ...”³ “I just thought that would make a great picture.... It was pretty cool, it was like a mob of them, so I was, like, just take a picture.”⁴ He did not say a word to anyone.⁵ Fields does not claim taking another picture.

Officer Sisca approached him after he took the picture.⁶ Fields alleges Officer Sisca questioned him, “[d]o you like taking pictures of grown men?” Fields answered “No, I'm just walking by.” Officer Sisca asked him to leave. Fields refused to leave “[b]ecause I felt that I was doing nothing wrong. I was perfectly acting within my rights just standing on the sidewalk, taking a picture of public property.”⁷ Fields “was about 15 feet away from any police officer.”⁸

After Fields refused to leave, Officer Sisca detained him, handcuffed him, emptied his pockets, took his cell phone and searched his phone.⁹ Officer Sisca did not delete the photo. Officer Sisca placed Fields in a police van while he cited Fields for Obstructing Highway and Other Public Passages under 18 Pa.C.S.§ 5507. After citing him, Officer Sisca returned the cell phone and released Fields from custody.¹⁰ Officer Sisca did not appear for the court hearing on the citation.

Fields seeks damages under 42 U.S.C. § 1983 against Officer Sisca alleging retaliation for exercising a First Amendment right to “observe and record” police, and for violating his Fourth Amendment rights against unreasonable search and seizure, and false arrest. Fields also seeks damages under § 1983 for malicious prosecution. These facts, taken in the light most favorable to Fields, could result in Fourth Amendment liability arising from Officer Sisca's possibly inexplicable statement and conduct. But the question today is whether the First Amendment protects Fields from police retaliating against him for photographing them without criticizing or challenging police before or contemporaneous with the photo.

Amanda Geraci's conduct

Amanda Geraci (“Geraci”) is a self-described “legal observer” who, following training at Cop Watch Berkley, observes interaction between police and civilians during civil disobedience or protests.¹¹ She claims to wear a pink identifier.¹² While she thinks the police know who she is, she is not a liaison with the police.¹³ Before 6:45 A.M. on September 21, 2012, Geraci attended a public protest against hydraulic fracturing near the Pennsylvania Convention Center in Philadelphia, and carried a camera with her to videotape the scene.¹⁴ She described the people as “excited. They were dancing, they were playing music. Relatively chill, I guess.”¹⁵ Approximately six to ten civil affairs officers attended to manage crowd control and ensure convention guests could enter the Convention Center.¹⁶

During the protest, Philadelphia police arrested one of the protestors.¹⁷ Geraci moved closer to get a better view and hoped to videotape the incident.¹⁸ Geraci claims Officer Brown “attacked her” by physically restraining her against a pillar and preventing her from videotaping the arrest.¹⁹ Geraci recalls this as being her only physical interaction with the police despite having attended at least twenty (20) similar events.²⁰ The police released Geraci and did not arrest or cite her.²¹ Geraci could not remember any other police officers around her.²² Geraci recalls telling Officer Brown “things like I'm not doing anything wrong. I was just legal observing. I don't remember much. It's very blurry. Like it was really kind of shocking.”²³

Geraci seeks damages under 42 U.S.C. § 1983 for First Amendment retaliation against Officer Brown and the City of Philadelphia and claims her peaceful attempt to observe and record police amounts to an exercise of a First Amendment right. Geraci also seeks damages under § 1983 against Officer Brown and three fellow officers, Defendants Barrow, Jones and Smith, for violating her Fourth Amendment right to be free from excessive force when she tried to get a better view of the police arrest. Although Geraci does not claim Officers Barrow, Jones or Smith had any physical contact with her and she cannot testify they were ever near her, she seeks recovery against them because they failed to intervene in Officer Brown's alleged use of excessive force.

I. ANALYSIS OF FIRST AMENDMENT RETALIATION CLAIM

Fields and Geraci filed separate actions under 42 U.S.C. § 1983 seeking damages for constitutional injuries inflicted by individual Philadelphia police officers and their employer City of Philadelphia.²⁴

While the officers seek dismissal of the First Amendment retaliation claim based on qualified immunity, and the City based on lack of supervisory liability under Monell v. Dep't of Soc. Servs. of City of New York^25, we focus on the threshold issue: whether Fields or Geraci engaged in First Amendment protected conduct. We find there is no First Amendment right under our governing law to observe and record police officers absent some other expressive conduct. As we find Fields and Geraci did not engage in constitutionally protected conduct, we do not address the potentially liable parties and their defenses.

We first analyze the facts of expressive conduct adduced by Fields and Geraci under the customary analysis and then address Fields' and Geraci's argument we should expand our understanding of expressive conduct to include taking, or attempting to take, a photograph.

A. Fields and Geraci offer no factual basis for customary expressive conduct required for a First Amendment retaliation claim.

To prevail on their First Amendment retaliation claim, Fields and Geraci must prove “(1) each engaged in constitutionally protected conduct; (2) defendant officials took adverse action sufficient to deter a person of ordinary firmness from exercising constitutional rights; and (3) the constitutionally protected conduct was a ‘substantial or motivating factor’ in the decision to take adverse action against the plaintiff.”²⁶

Fields' and Geraci's alleged “constitutionally protected conduct” consists of observing and photographing, or making a record of, police activity in a public forum.²⁷ Neither uttered any words to the effect he or she sought to take pictures to oppose police activity. Their particular behavior is only afforded First Amendment protection if we construe it as expressive conduct.²⁸ Because we find this issue dispositive on all of Plaintiffs' First Amendment retaliation claims, we first address whether Fields' and Geraci's conduct is constitutionally protected activity under prevailing precedent.

We analyze Fields' and Geraci's conduct mindful of the Supreme Court's admonition “[w]e cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’....”²⁹ “[I]t is the obligation of the person desiring to engage in assertedly expressive conduct to demonstrate that the First Amendment...