No, It’s Not Illegal to Record the Philadelphia Police!—Fields/Geraci Ruling Explained

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By Molly Tack-Hooper, Staff Attorney, ACLU of Pennsylvania

On February 19, 2016, a federal trial court judge in Philadelphia ruled that there is no First Amendment right to record the police—unless you make it clear that you are recording for the purpose of criticizing the police. The ruling has confused lawyers and non-lawyers alike. We’ll break it all down for you.

What was the case about?

The ACLU-PA has filed several lawsuits against the City of Philadelphia on behalf of people who were arrested or detained for attempting to photograph or record the Philadelphia police performing their duties in public. The ACLU alleges that, for years, the City has ignored substantial evidence that Philadelphia police officers routinely retaliate against people who record them, and has failed to adequately train, supervise, or discipline officers. The two plaintiffs in these cases, Rick Fields and Amanda Geraci, filed the fourth and fifth lawsuits in the series.

In September 2013, Rick Fields, a Temple undergraduate student, observed approximately 20 police officers clearing out a house party across the street. He paused on the sidewalk to take a photo of the scene with his iPhone, and a police officer asked him whether he enjoyed photographing grown men and ordered him to leave. The officer then arrested Fields and cited him with obstructing a highway.

In September 2012, Amanda Geraci was serving as a legal observer at an anti-fracking protest at the Convention Center. When a protestor got arrested, Geraci tried to take photos of the arrest (as legal observers are trained to do), and a police officer pinned her up against a column and restrained her across the neck.

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What happened in the trial court?

The trial court granted what’s known as “summary judgment” to the defendants, throwing out Fields’ and Geraci’s First Amendment claims. Here’s how the judge who decided the case, the Honorable Mark A. Kearney, framed the issue:

[Rick Fields and Amanda Geraci] 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 is whether citizens also enjoy a First Amendment right to photograph police absent any criticism or challenge to police conduct.

Judge Kearney’s answer was “no.” Here are excerpts of his explanation:

Neither [Fields nor Geraci] 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. . . .

Fields and Geraci essentially concede they spoke no words or conduct expressing criticism of the police before or during their image capture. They instead want to persuade us “observing” and “recording” police activity is expressive conduct entitled to First Amendment protection as a matter of law. In their view, observing is a component of “criticizing” and citizens may engage in speech critical of the government. We find no controlling authority compelling this broad a reading of First Amendment precedent.

Is the ACLU appealing?

Heck yes. We filed notices of appeal on March 21, 2016.

What have other courts said about whether there’s a First Amendment right to record the police?

The ability to scrutinize the actions of public officials is at the core of what the First Amendment is supposed to protect. The First Amendment protects access to information about the government as well as free expression. So every federal appeals court in the last decade and a half that has considered whether there’s a First Amendment right to record the police has ruled that, yes, there is. In other words, Judge Kearney’s ruling goes against the weight of authority. The U.S. Court of Appeals for the Third Circuit (the federal appeals court that covers Pennsylvania) hasn’t yet addressed that question. But the Fields and Geraci appeals will allow the Third Circuit a chance to weigh in soon.

Does the trial court decision in Fields and Geraci mean it is currently illegal to record the police in Philadelphia? Can I now be arrested in Philadelphia for taking pictures of the police?

NO! Even if there were no constitutional right to record the police (and, again, we think there absolutely is such a right), that doesn’t make it illegal to record the police. There is no law that prohibits you from recording the police. Police can only stop you or arrest you if they suspect you of a crime. Recording the police is not a crime. So it’s not a valid basis for a stop or an arrest.

And it’s worth noting that the Philadelphia Police Department agrees with the ACLU’s view of the First Amendment. Since November 2012, the official written policy of the Philadelphia Police Department has said that civilians do have a First Amendment right to record the police, and that police officers should expect to be recorded when they are out in public, and should not interfere with attempts to record them.

So by all means, go download our Mobile Justice app, and use it to record the police in public places. Civilian recordings are a vital tool for deterring police abuse and holding the police accountable when they cross the line. And if you have any questions about what you can and can’t do in Pennsylvania, read our “Know Your Rights” brochure about the right to record the police. Judge Kearney’s ruling doesn’t change anything in there.

So if I am still free to record the police, why does it matter whether or not the First Amendment protects that right?

Without a recognized First Amendment right to record the police, a legislature could pass a law making it illegal. Sound crazy? Well, Texas already tried to pass a law that would prohibit anyone standing within 25 feet of a police officer from recording them—whether or not they were in any way interfering with police activities. Constitutional protection is necessary to prevent that kind of legislative attack on our fundamental freedoms.

In addition, having the courts recognize a First Amendment right to record the police sends an important message. Like many public officials, police officers take an oath to uphold the Constitution. It’s important to establish that protecting the Constitution means respecting the public’s right to observe and record the police—a critical means of holding the police accountable for misconduct.

Molly-Tack-HooperMolly Tack-Hooper started at the ACLU of Pennsylvania as a volunteer legal fellow in 2010-2011 and returned in 2013 as a staff attorney focusing on civil liberties issues arising in Central Pennsylvania and on immigrants’ rights. Molly is an active member of the Philadelphia Bar Association, serving as co-chair of the Civil Rights Committee in 2015 and 2016 and vice-chair of the Public Interest Section in 2016.

Pennsylvania: A State of Secrecy

By Crystle Craig, Larry Frankel Legislative Fellow, ACLU of Pennsylvania

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Pay attention, because Pennsylvania lawmakers are on a path to decimating already delicate police-community relations. House Bill 1538 and Senate Bill 1061 mean to take decision-making power from local leadership, blanket law enforcement in a veil of secrecy, and keep the public ignorant to the actions of those who serve it.

Transparency is undeniably vital to any government, such as ours, that wishes to hold the trust and consent of its people. Yet, Pennsylvania is set to veil itself in secrecy in an attempt to shield its law enforcement officers from public accountability. In a time when police chiefs, governors and congressman across the country are calling to open the practices of police to public scrutiny, Pennsylvania’s bills take a tragic leap in the wrong direction.

Pennsylvania House Bill 1538 and Senate Bill 1061 would prohibit local leadership from identifying officers involved in use of force incidents against the people. Police chiefs, district attorneys, and mayors would be barred from disclosing such information until the completion of an official investigation. Under this language, the public could be left waiting virtually into perpetuity. If the investigation is prolonged for years, we would not know the names of potentially dangerous officers for years. If the investigation never closes, as some may be wont to do, the information could never be released. In other words, there is no limit upon the time under which dissemination may be prohibited. And Senate Bill 1061 goes even further by imposing criminal punishment against local leaders who decide to identify their officers, regardless of whether the disclosure was done for the public good and safety.

But the absence of logic is most troubling. In fact, nothing but baseless assumptions abound in these bills. Our lawmakers assume that Pennsylvanians are unreasonable and unstable. They imply that Pennsylvanians just cannot be trusted to do the right thing, as if we will only use disclosure for nefarious purposes rather than for accountability, healing, and peace of mind. In the eyes of our lawmakers, we can do the right thing when electing them, but we are just too emotionally unstable when seeking truth and justice. They assume this without being able to point to any known instances of officers being targeted after the disclosure of identifying information under Freedom of Information Act/ Right to Know Requests or at the discretion of local leadership.

Our lawmakers assume that our police chiefs, district attorneys, and mayors cannot act in the best interests of their officers and communities. Currently, local leadership has the ability to judge the circumstances within the community. They have the discretion to either disseminate information for the public good or to withhold it if the release of such information would put officers or public safety in jeopardy. But, our lawmakers want to ignore the fact that local leadership is in the best position to make judgment calls for their communities, not the detached politicians at the Capitol. They would substitute their inexperience and assumptions for the reasoned judgment of the local leadership who make decisions in consideration of the immediate realities of the local environment.

Evidently, our lawmakers have faith in no one but themselves.

But we must not forget that all departments of government, law enforcement especially, are accountable to the people. The trust of the people must be earned, not taken for granted. That requires transparency. Transparency encourages trust, serving as a vital check against power prone to corruption. Police power certainly is not immune to corruption, but “sunlight” acts as the best disinfectant for deterring and responding to corruption within any government agency. Police chiefs know this. Mayors know this. Governors understand it. And the people demand it.

Achieving a lawful police force is a never-ending task. A government of checks and balances is not enough without transparency, particularly within law enforcement. Police officers are given the unique power to detain and use force against the people, but, when doing so, they must adhere to the rules of law. The people must be able to know if the checks and balances are functioning; the people must know who can and cannot carry-out the demanding responsibility of upholding our laws so that good officers may be praised and the bad officers discarded. As John Adams wrote centuries ago, “Liberty cannot be preserved without a general knowledge among the people, who have a right and a desire to know.” This wisdom is wholly applicable to law enforcement today.

Transparency and public awareness are crucially important forces for maintaining fair, humane and lawful police forces. Chicago, Baltimore, Philadelphia and Ferguson all stand as undeniable parables to this end. Let us not forget their lessons as Pennsylvania lawmakers seem to have done with these “secret police” bills; let us speak up and against the veil of secrecy.

Crystle Craig is the 2015-16 Larry Frankel Legislative Fellow and a 2015 graduate of the Dickinson School of Law in Carlisle.

Thank You, Abortion Providers!

By Marah Lange, MSW, former Duvall Project intern

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Last Wednesday was an important day in the fight to protect abortion access.

As the justices gathered to hear arguments in Whole Woman’s Health v. Hellerstedt, thousands came together outside the U.S. Supreme Court to have our voices heard: stop the sham. While Texas’s HB2 and similar laws are engineered to appear to be focused on protecting women’s health, they do just the opposite. In fact, they restrict access to safe abortion by placing medically unnecessary restrictions on providers and causing clinics to close. For patients, this creates an obstacle course of barriers to having an abortion. If I have to travel hundreds of miles for my procedure, who can watch my children? Will my employer allow me the time off I need to travel for my appointment? How will I afford the cost of travel in addition to the cost of my procedure?

This is something we need to be shouting about. And on March 2nd, we shouted! I was one of 60 people who took a 5 a.m. bus from Philadelphia to Washington, DC, to join the Rally to Protect Abortion Access that day. Once on board the bus, I sensed excitement, adventure and, with some bus mates who had been in the fight since Roe, camaraderie. I also felt some trepidation. This was my first large-scale abortion rally, and I did not know what to expect from the opposition. After some coffee, chanting, and eventually a sunrise, we arrived and joined over a thousand other advocates who came together to defend access to abortion (and to show off some fantastic posters).

The Rally to Protect Abortion Access was also a platform for celebration. Women gathered to share their abortion stories, leaders of the fight spoke of their mission to protect access, and abortion providers were met with cheers of gratitude for their dedication to caring for patients with respect and dignity. It was electric.

While advocates await the court’s decision in June, today marks the National Day of Appreciation for Abortion Providers. We observe this day each year on the anniversary of the death of Dr. David Gunn, one of several abortion providers and clinic workers murdered by an anti-choice extremists. It is a day to show our gratitude for the courageous medical professionals who provide abortion care despite political interference and often threats of violence. Each day, providers stand in solidarity with patients who have chosen abortion for themselves and their families. Today we stand with those same providers and say “thank you.”

Thank you, Providers!

THANK YOU to the providers who work hard every day to make sure that people across Pennsylvania have access to the abortion care they need! We appreciate all you do to make reproductive rights a reality. #AppreciateProviders #NDAAPPlanned Parenthood Southeastern Pennsylvania, Planned Parenthood Keystone, PPWP–Planned Parenthood of Western PA, Philadelphia Women's Center, Allentown Women's Center, Delaware County Women's Center, Allegheny Reproductive Health Center Physicians for Reproductive Health

Posted by ACLU of Pennsylvania on Thursday, March 10, 2016