Fields v. City of Phila.

• Decision Date: 07 July 2017
• Docket Number: No. 16-1650, No. 16-1651,16-1650
• Citation: 862 F.3d 353
• Parties: Richard FIELDS, Appellant v. CITY OF PHILADELPHIA; Sisca, Police Officer, Badge No. 9547; Joe Doe, an Unknown Philadelphia Police Officer Amanda Geraci, Appellant v. City of Philadelphia; Dawn Brown, Police Officer, Badge No. 2454; Terra M. Barrow, Police Officer, Badge No. 1147; Nikki L. Jones, Police Officer, Badge No. 2549; Rhonda Smith, Police Officer, Badge No. 1373
• Court: U.S. Court of Appeals — Third Circuit

862 F.3d 353

Richard FIELDS, Appellant

v.CITY OF PHILADELPHIA; Sisca, Police Officer, Badge No. 9547; Joe Doe, an Unknown Philadelphia Police Officer

Amanda Geraci, Appellant

v.City of Philadelphia; Dawn Brown, Police Officer, Badge No. 2454; Terra M. Barrow, Police Officer, Badge No. 1147; Nikki L. Jones, Police Officer, Badge No. 2549; Rhonda Smith, Police Officer, Badge No. 1373

No. 16-1650

No. 16-1651

United States Court of Appeals, Third Circuit.

Argued May 9, 2017

Opinion filed: July 7, 2017

Jonathan H. Feinberg, Esquire, Kairys Rudovsky Messing & Reinberg, 718 Arch Street, Suite 501 South, Philadelphia, PA 19106, John J. Grogan, Esquire, Peter E. Leckman, Esquire, Langer Grogan & Diver, 1717 Arch Street, Suite 4130, Philadelphia, PA 19103, Seth Kreimer, Esquire, University of Pennsylvania School of Law, 3400 Chestnut Street Philadelphia, PA 19104, Mary Catherine Roper, Esquire, Molly M. Tack–Hopper, Esquire (Argued), American Civil Liberties Union of Pennsylvania, P.O. Box 60173, Philadelphia, PA 19106, Counsel for Appellants

Craig R. Gottlieb, Esquire (Argued), City of Philadelphia Law Department, 1515 Arch Street, 17th Floor, One Parkway, Philadelphia, PA 19102, Counsel for Appellees

Dorothy A. Hickok, Esquire, Alfred W. Putnam, Jr., Esquire, Mark D. Taticchi, Esquire, Drinker Biddle & Reath, 18th & Cherry Streets, One Logan Square, Suite 2000, Philadelphia, PA 19103, Ilya Shapiro, Esquire, Cato Institute, 1000 Massachusetts Ave., N.W., Washington, DC 20001, Counsel for Amicus Appellant, Cato Institute

Eli Segal, Esquire, Pepper Hamilton, 217 Ryers Avenue, Philadelphia, PA 19103, Counsel for Amicus Appellant, Society for Photographic Education

Sharon M. McGowan, Esquire, April J. Anderson, Esquire, Tovah R. Calderon, Esquire, United States Department of Justice, Civil Rights Division, Appellate Section, RFK 3724, P.O. Box 14403, Ben Franklin Station, Washington, DC 20044, Counsel for Amicus Appellant, United State of America

Bruce D. Brown, Esquire, Gregg P. Leslie, Esquire, The Reporters Committee for Freedom of the Press, 1156 15th Street,

N.W., Suite 1250, Washington, DC 20005, Counsel for Amicus Appellant, Reporters Committee for Freedom of the Press and 31 Media Organizations

Sophia S. Cope, Esquire, Adam Schwartz, Esquire, Electronic Frontier Foundation, 815 Eddy Street, San Francisco, CA 94109, Counsel for Amicus Appellant, Electronic Frontier Foundation

Robert J. LaRocca, Esquire, Kohn Swift & Graf, One South Broad Street, Suite 2100, Philadelphia, PA 19107, Counsel for Amicus Appellant, First Amendment Law Professors

Patrick G. Geckle, Esquire, 1500 John F. Kennedy Boulevard, Two Penn Center Plaza, Suite 1850, Philadelphia, PA 19102, John Burton, Esquire, The Marine Building, 128 North Fair Oaks Avenue, Pasadena, CA 91103, David Milton, Esquire, Law Offices of Howard Friedman, PC, 90 Canal Street, Fifth Floor, Boston, MA 02114, Counsel for Amicus Appellant, National Police Accountability Project

Jason P. Gosselin, Esquire, Drinker Biddle & Reath, 18th & Cherry Streets, One Logan Square, Suite 2000, Philadelphia, PA 19103, John W. Whitehead, Esquire, Douglas R. McKusick, Esquire, Christopher F. Moriarty, Esquire, The Rutherford Institute, P.O. Box 7482, Charlottesville, VA 22906, Counsel for Amicus Appellant, Rutherford Institute

Before: AMBRO, RESTREPO, and NYGAARD, Circuit Judges

OPINION OF THE COURT

AMBRO, Circuit Judge

In 1991 George Holliday recorded video of the Los Angeles Police Department officers beating Rodney King and submitted it to the local news. Filming police on the job was rare then but common now. With advances in technology and the widespread ownership of smartphones, "civilian recording of police officers is ubiquitous." Jocelyn Simonson, Copwatching , 104 Cal. L. Rev. 391, 408 (2016) ; see Seth F. Kreimer, Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record , 159 U. Pa. L. Rev. 335, 337 (2011). These recordings have both exposed police misconduct and exonerated officers from errant charges. However, despite the growing frequency of private citizens recording police activity and its importance to all involved, some jurisdictions have attempted to regulate the extent of this practice. Individuals making recordings have also faced retaliation by officers, such as arrests on false criminal charges and even violence.

This case involves retaliation. Richard Fields and Amanda Geraci attempted to record Philadelphia police officers carrying out official duties in public and were retaliated against even though the Philadelphia Police Department's official policies recognized that "[p]rivate individuals have a First Amendment right to observe and record police officers engaged in the public discharge of their duties." J.A. 1187. No party contested the existence of the First Amendment right. Yet the District Court concluded that neither Plaintiff had engaged in First Amendment activity because the conduct—the act of recording—was not sufficiently expressive. However, 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.

Every Circuit Court of Appeals to address this issue (First, Fifth, Seventh, Ninth, and Eleventh) has held that there is a First Amendment right to record police activity in public. See Turner v. Lieutenant Driver , 848 F.3d 678 (5th Cir. 2017) ; Gericke v. Begin , 753 F.3d 1 (1st Cir. 2014) ; Am. Civil Liberties Union of Ill. v. Alvarez , 679 F.3d 583 (7th Cir. 2012) ; Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) ; Smith v. City of Cumming , 212 F.3d 1332 (11th Cir. 2000) ; Fordyce v. City of Seattle , 55 F.3d 436 (9th Cir. 1995). Today we join this growing consensus. Simply put, the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public.

I. BACKGROUND

In September 2012, Amanda Geraci, a member of the police watchdog group "Up Against the Law," attended an anti-fracking protest at the Philadelphia Convention Center. She carried her camera and wore a pink bandana that identified her as a legal observer. About a half hour into the protest, the police acted to arrest a protestor. Geraci moved to a better vantage point to record the arrest and did so without interfering with the police. 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 or cited.

One evening in September 2013, Richard Fields, a sophomore at Temple University, was on a public sidewalk where he observed a number of police officers breaking up a house party across the street. The nearest officer was 15 feet away from him. Using his iPhone, he took a photograph of the scene. An officer noticed Fields taking the photo and asked him whether he "like[d] taking pictures of grown men" and ordered him to leave. J.A. 8. Fields refused, so the officer arrested him, confiscated his phone, and detained him. The officer searched Fields' phone and opened several videos and other photos. The officer then released Fields and issued him a citation for "Obstructing Highway and Other Public Passages." These charges were withdrawn when the officer did not appear at the court hearing.

Fields and Geraci brought 42 U.S.C. § 1983 claims against the City of Philadelphia and certain police officers. They alleged that the officers illegally retaliated against them for exercising their First Amendment right to record public police activity and violated their Fourth Amendment right to be free from an unreasonable search or seizure.

They also pointed out that the City's Police Department's official policies recognized their First Amendment right. In 2011 the Department published a memorandum advising officers not to interfere with a private citizen's recording of police activity because it was protected by the First Amendment. In 2012 it published an official directive reiterating that this right existed. Both the memorandum and directive were read to police officers during roll call for three straight days. And in 2014, after the events in our case and the occurrence of other similar incidents, the Department instituted a formal training program to ensure that officers ceased retaliating against bystanders who recorded their activities.

The District Court nonetheless granted summary judgment in favor of Defendants on the First Amendment claims. They did not argue against the existence of a First Amendment right, but rather contended that the individual officers were entitled to qualified immunity and that the City could not be vicariously liable for the officers' acts. Yet the District Court on its own decided that Plaintiffs' activities were not protected by the First Amendment because they presented no evidence that their "conduct may be construed as expression of a belief or criticism of police activity." Fields v. City of Philadelphia , 166 F.Supp.3d 528, 537 (E.D. Pa. 2016).

When confronted by the police, Plaintiffs did not express their reasons for recording. Their later deposition testimony showed that Geraci simply wanted to observe and Fields wanted to take a picture of an "interesting" and "cool" scene. Id. at 539. In addition, neither testified of having an intent to share his or her photos or videos. Id. The District Court thus concluded that, "[a]bsent any authority from the Supreme Court or our Court of Appeals, we decline to create a new First Amendment right for citizens to photograph officers when they have no expressive purpose such as challenging police actions." Id. at 542.

Because of this ruling, the District Court did not reach the issues of qualified immunity or municipal liability. However, it allowed the Fourth Amendment claims to go to trial. Id. ("The citizens are not without remedy because once the police officer takes your phone,...