PHILADELPHIA, Pa. —The Rutherford Institute has asked a federal appeals court to safeguard the right of citizens and journalists to record police in public without fear of retaliation. In a friend-of-the-court brief filed with the U.S. Court of Appeals for the Third Circuit, Rutherford Institute attorneys argue that the First Amendment protects the right of citizens to make audio or video recordings of public law enforcement activities.
The brief was filed in a consolidated appeal of two cases in which a federal district court ruled that police and the City of Philadelphia could not be sued by persons who were arrested or physically assaulted by officers allegedly because they had made video recordings of police engaged in quelling disturbances.
“Police body cameras will never serve as an effective check on police misconduct as long the cameras can be turned on and off at will and the footage remains inaccessible to the public. However, technology makes it possible for Americans to record their own interactions with police and they have every right to do so without fear of arrest or physical assault,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “The ability to record police interactions in public provides for greater accountability when it comes to police interactions with the citizenry and should be preserved as a necessary right of the people.”
In September 2012, Amanda Geraci, a legal observer who monitors police interactions with citizens at protests or demonstrations, attended a protest against fracking at the convention center in Philadelphia. When police arrested one of the protesters, Geraci moved to a spot where she could better observe and make a video recording of the incident. According to Geraci, a city police officer subsequently attacked her by physically restraining her against a pillar and preventing her from videotaping the arrest.
In a separate incident, Temple University student Richard Fields was walking on Broad Street in Philadelphia when he saw about 20 police officers standing outside a house that was hosting a party. Fields took a photograph of the scene with his cell phone. An officer then approached Fields, asked if Fields “likes taking pictures of grown men,” and ordered him to leave. When Fields refused, the officer handcuffed and arrested him, searched his belongings, and charged him with obstructing a public passage. That charge was eventually dropped. Both Geraci and Fields filed lawsuits asserting that the police retaliated against them for exercising their First Amendment right to record police activities in public.
In ruling on the lawsuits, a federal district court declared that there was no clearly established right under the First Amendment to record police activities and that a person only has the right to record police in public if they can assert there was some “expressive” purpose for the recording. In weighing in on the cases before the Third Circuit Court of Appeals, Rutherford Institute attorneys point out that the district court’s decision conflicts with numerous rulings from other courts that have affirmed a First Amendment right to collect information about government activities, and specifically to record police carrying out their duties in public.
Affiliate attorneys Jason P. Gosselin and Christopher F. Moriarty assisted The Rutherford Institute advancing the arguments in the Fields and Geraci brief.