Richard Fields v. City of Philadelphia , 862 F.3d 353 ( 2017 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 16-1650
________________
RICHARD FIELDS,
Appellant
v.
CITY OF PHILADELPHIA; SISCA,
POLICE OFFICER, BADGE NO. 9547;
JOE DOE, AN UNKNOWN PHILADELPHIA
POLICE OFFICER
________________
No. 16-1651
________________
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
________________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action Nos. 2-14-cv-04424/05264)
District Judge: Honorable Mark A. Kearney
________________
Argued May 9, 2017
Before: AMBRO, RESTREPO,
and NYGAARD, Circuit Judges
(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
2
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
3
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
4
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
5
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
________________
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
6
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.
7
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.
8
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.
9
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, alters your technology,
arrests you or applies excessive force, we proceed to trial on
the Fourth Amendment claims.”). By stipulation, Plaintiffs
dismissed their Fourth Amendment claims so that they could
immediately appeal the First Amendment ruling.
II. JURISDICTION AND STANDARDS
The District Court had subject matter jurisdiction over
these federal civil rights claims under 28 U.S.C. §§ 1331 &
1343, and we have jurisdiction under 28 U.S.C. § 1291. We
exercise plenary review over the District Court’s grant of
summary judgment. Melrose, Inc. v. City of Pittsburgh, 613
F.3d 380, 387 (3d Cir. 2010). It “is appropriate only where,
drawing all reasonable inferences in favor of the nonmoving
party, there is no genuine issue as to any material fact and . . .
the moving party is entitled to judgment as a matter of law.”
Id. (alteration in original and citation omitted). Because this
is a First Amendment case, we must also “engage in a
searching, independent factual review of the full record.”
Am. Civil Liberties Union v. Mukasey, 534 F.3d 181, 186 (3d
Cir. 2008) (citations omitted).
III. ORDER OF ANALYSIS
Defendants ask us to avoid ruling on the First
Amendment issue. Instead, they want us to hold that,
regardless of the right’s existence, the officers are entitled to
qualified immunity and the City cannot be vicariously liable
for the officers’ acts. We reject this invitation to take the easy
way out. Because this First Amendment issue is of great
importance and the recording of police activity is a
10
widespread, common practice, we deal with it before
addressing, if needed, defenses to liability.
In Saucier v. Katz, the Supreme Court held that courts
must determine whether a constitutional right existed before
deciding if it had been “clearly established” such that
defendants would not be entitled to qualified immunity. 533
U.S. 194, 200-01 (2001). Less than a decade later, however,
the Court reversed course in Pearson v. Callahan, holding
that courts instead have the discretion to choose to address
immunity first and bypass the substantive constitutional issue.
555 U.S. 223, 236 (2009). We have not ruled on the First
Amendment right, instead merely holding that at the time of
our rulings the claimed right was not clearly established.
Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010);
True Blue Auctions v. Foster, 528 F. App’x 190 (3d Cir.
2013).
In the years since, First Amendment issues from the
recording of police activity recur, and they deal directly with
constitutional doctrine. With technological progress and the
ubiquity of smartphone ownership—especially in the years
since our Kelly decision—we are now in an age where the
public can record our public officials’ conduct and easily
distribute that recording widely. This increase in the
observation, recording, and sharing of police activity has
contributed greatly to our national discussion of proper
policing. Consequently, police departments nationwide, often
with input from the U.S. Department of Justice, are
developing polices addressing precisely these issues, and our
opinion can assist in their efforts to comply with the
Constitution. Moreover, in the case before us the
constitutional question is not “so factbound that [our]
decision [will] provide[] little guidance for future cases.”
Pearson, 555 U.S. at 237. All we need to decide is whether
the First Amendment protects the act of recording police
11
officers carrying out official duties in public places. We also
have excellent briefing on appeal, including counsel for the
parties and eight amici, including the U.S. Department of
Justice, the Cato Institute, well-known First Amendment law
professors, and some of the largest news organizations in the
country. We therefore address the First Amendment question
before moving to the defenses.
IV. THE FIRST AMENDMENT RIGHT TO RECORD
The District Court concluded that Plaintiffs engaged in
conduct only (the act of making a recording) as opposed to
expressive conduct (using the recording to criticize the police
or otherwise comment on officers’ actions). It did so by
analogy, applying the “expressive conduct” test used to
address symbolic speech: “Conduct is protected by the First
Amendment when the nature of the activity, combined with
the factual context and environment in which it was
undertaken, shows that the activity was sufficiently imbued
with elements of communication to fall within the First
Amendment’s scope.” Fields, 166 F. Supp. 3d at 534 & n.34
(quoting Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309
F.3d 144, 158 (3d Cir. 2002)).
We disagree on various fronts. Foremost is that the
District Court focused on whether Plaintiffs had an expressive
intent, such as a desire to disseminate the recordings, or to use
them to criticize the police, at the moment when they recorded
or attempted to record police activity. See id. at 534-35. This
reasoning ignores that the value of the recordings may not be
immediately obvious, and only after review of them does
their worth become apparent. The First Amendment protects
actual photos, videos, and recordings, see Brown v. Entm’t
Merchants Ass’n, 564 U.S. 786, 790 (2011), and for this
protection to have meaning the Amendment must also protect
the act of creating that material. There is no practical
12
difference between allowing police to prevent people from
taking recordings and actually banning the possession or
distribution of them. See Alvarez, 679 F.3d at 596
(“Restricting the use of an audio or audiovisual recording
device suppresses speech just as effectively as restricting the
dissemination of the resulting recording.”); see also Cato
Institute Amicus Br. 7 (“[B]oth precedent and first principles
demonstrate that the First Amendment protects the process of
capturing inputs that may yield expression, not just the final
act of expression itself”); Kreimer, 159 U. Pa. L. Rev. at 366
(“[T]he threat of arrest remains a potent deterrent to
spontaneous photographers who have no deep commitment to
capturing any particular image.”). As illustrated here,
because the officers stopped Ms. Geraci from recording the
arrest of the protestor, she never had the opportunity to decide
to put any recording to expressive use.
Plaintiffs and some amici argue that the act of
recording is “inherently expressive conduct,” like painting,
writing a diary, dancing, or marching in a parade. See, e.g.,
First Amendment Law Professors Amicus Br. 8 (“If writing in
an undistributed diary is speech, making an undistributed
recording can be characterized as speech as well.”); Society
for Photographic Education Amicus Br. 2 (“Making a
photograph merits First Amendment protection because it is
artistic expression just the same as painting a landscape,
sketching a street scene, or sculpting a statue.”); Tenafly Eruv
Ass’n, 309 F.3d at 160 (“‘Parades are thus a form of
expression, not just motion . . . .’”) (quoting Hurley v. Irish-
American Gay, Lesbian and Bisexual Grp. of Bos., 515 U.S.
557, 568 (1995)). Regardless of the merits of these
arguments, our case is not about people attempting to create
art with police as their subjects. It is about recording police
officers performing their official duties.
13
The First Amendment protects the public’s right of
access to information about their officials’ public activities.
It “goes beyond protection of the press and the self-
expression of individuals to prohibit government from
limiting the stock of information from which members of the
public may draw.” First Nat’l. Bank of Bos. v. Bellotti, 435
U.S. 765, 783 (1978). Access to information regarding public
police activity is particularly important because it leads to
citizen discourse on public issues, “the highest rung of the
hierarchy of First Amendment values, and is entitled to
special protection.” Snyder v. Phelps, 562 U.S. 443, 452
(2011) (quoting Connick v. Myers, 461 U.S. 138, 145 (1983));
Garrison v. Louisiana, 379 U.S. 64, 77 (1964) (recognizing
the “paramount public interest in a free flow of information to
the people concerning public officials, their servants”). That
information is the wellspring of our debates; if the latter are to
be “‘uninhibited, robust, and wide-open,’” Snyder, 562 U.S.
at 452 (quoting N. Y. Times Co. v. Sullivan, 376 U.S. 254, 270
(1964)), the more credible the information the more credible
are the debates.
To record what there is the right for the eye to see or
the ear to hear corroborates or lays aside subjective
impressions for objective facts. Hence to record is to see and
hear more accurately. Recordings also facilitate discussion
because of the ease in which they can be widely distributed
via different forms of media. Accordingly, recording police
activity in public falls squarely within the First Amendment
right of access to information. As no doubt the press has this
right, so does the public. See PG Publ’g. Co. v. Aichele, 705
F.3d 91, 99 (3d Cir. 2013); Branzburg v. Hayes, 408 U.S.
665, 684 (1972).
Bystander videos provide different perspectives than
police and dashboard cameras, portraying circumstances and
surroundings that police videos often do not capture. Civilian
14
video also fills the gaps created when police choose not to
record video or withhold their footage from the public. See
Nat’l Police Accountability Project Amicus Br. 7 (noting that
“[a] recent survey of 50 major police departments’ policies on
body cameras revealed that many policies either failed to
make clear when officers must turn on their body cameras,
gave officers too much discretion when to record, or failed to
require explanations when officers did not record”) (citation
omitted).
The public’s creation of this content also complements
the role of the news media. Indeed, citizens’ gathering and
disseminating “newsworthy information [occur] with an ease
that rivals that of the traditional news media.” 2012 U.S.
D.O.J. Letter to Baltimore Police Department; J.A. 1684. See
also Glik, 655 F.3d at 78 (“The proliferation of electronic
devices with video-recording capability means that many of
our images of current events come from bystanders with a
ready cell phone or digital camera rather than a traditional
film crew, and news stories are now just as likely to be
broken by a blogger at her computer as a reporter at a major
newspaper.”). In addition to complementing the role of the
traditional press, private recordings have improved
professional reporting, as “video content generated by
witnesses and bystanders has become a common component
of news programming.” The Reporters Committee for
Freedom of the Press and 31 Media Organizations Amicus Br.
11; see also id. at 2 (“Today, the first source of information
from the scene of a newsworthy event is frequently an
ordinary citizen with a smart phone.”). And the inclusion of
“bystander video enriches the stories journalists tell, routinely
adding a distinct, first-person perspective to news coverage.”
Id. at 12.
Moreover, the proliferation of bystander videos has
“spurred action at all levels of government to address police
15
misconduct and to protect civil rights.” See Nat’l Police
Accountability Proj. Amicus Br. 1. These videos have helped
police departments identify and discipline problem officers.
They have also assisted civil rights investigations and aided in
the Department of Justice’s work with local police
departments. And just the act of recording, regardless what is
recorded, may improve policing. See Glik, 655 F.3d at 82-83.
Important to police is that these recordings help them carry
out their work. They, every bit as much as we, are concerned
with gathering facts that support further investigation or
confirm a dead-end. And of particular personal concern to
police is that bystander recordings can “exonerate an officer
charged with wrongdoing.” Turner, 848 F.3d at 689.
We do not say that all recording is protected or
desirable. The right to record police is not absolute. “[I]t is
subject to reasonable time, place, and manner restrictions.”
Kelly, 622 F.3d at 262; see Whiteland Woods, L.P. v. Twp. of
W. Whiteland, 193 F.3d 177, 183 (3d Cir. 1999). But in
public places these restrictions are restrained.
We need not, however, address at length the limits of
this constitutional right. Defendants offer nothing to justify
their actions. Fields took a photograph across the street from
where the police were breaking up a party. Geraci moved to a
vantage point where she could record a protestor’s arrest, but
did so without getting in the officers’ way. If a person’s
recording interferes with police activity, that activity might
not be protected. For instance, recording a police
conversation with a confidential informant may interfere with
an investigation and put a life at stake. But here there are no
countervailing concerns.
In sum, under the First Amendment’s right of access to
information the public has the commensurate right to
16
record—photograph, film, or audio record—police officers
conducting official police activity in public areas.
V. QUALIFIED IMMUNITY
Having decided the existence of this First Amendment
right, we now turn to whether the officers are entitled to
qualified immunity. We conclude they are.
Government actors are entitled to qualified immunity
unless they violated a constitutional right “so clearly
established that ‘every reasonable official would have
understood that what he is doing violates that right.’” Zaloga
v. Borough of Moosic, 841 F.3d 170, 175 (3d Cir. 2016)
(quoting Reichle v. Howards, 566 U.S. 658, 659 (2012))
(emphasis in original). “In other words, existing precedent
must have placed the statutory or constitutional question
beyond debate.” Id. (quoting Reichle, 566 U.S. at 664)
(emphasis in original). We do not need Supreme Court
precedent or binding Third Circuit precedent to guide us if
there is a “robust consensus of cases of persuasive authority
in the Courts of Appeals.” L.R. v. Sch. Dist. of Phila., 836
F.3d 235, 247–48 (3d Cir. 2016) (alteration and citations
omitted). District court decisions, though not binding, also
“play a role in the qualified immunity analysis.” Doe v.
Delie, 257 F.3d 309, 321 n.10 (3d Cir. 2001). To determine
whether the right is clearly established, we look at the state of
the law when the retaliation occurred, here in 2012 (Geraci)
and 2013 (Fields). See id.
To conduct the clearly established inquiry, we “frame
the right ‘in light of the specific context of the case, not as a
broad general proposition,’” L.R., 836 F.3d at 247–48
(citation omitted), as it needs to be “specific enough to put
‘every reasonable official’ on notice of it.” Zaloga, 841 F.3d
at 175 (citation omitted). At issue here is Plaintiffs’ ability to
17
record the police carrying out official duties in public. We
have never held that such a right exists, only that it might.
See Gilles v. Davis, 427 F.3d 197, 212 n.14 (3d Cir. 2005)
(“[V]ideotaping or photographing the police in the
performance of their duties on public property may be a
protected activity.”). In 2010 we held that there was no
clearly established right for the public to do so, at least in the
context of a police traffic stop. Kelly, 622 F.3d at 262 (“We
find these cases insufficiently analogous to the facts of this
case to have put Officer Rogers on notice of a clearly
established right to videotape police officers during a traffic
stop [in 2007].”). Only a few years later in 2013, in a non-
precedential opinion, we held that “[e]ven if the distinction
between traffic stops and public sidewalk confrontations is [ ]
meaningful . . . [,] our case law does not clearly establish a
right to videotape police officers performing their duties [in
2009].” True Blue Auctions, 528 F. App’x at 192-93. So to
resolve whether the right has become clearly established after
these decisions, we must decide whether a “robust consensus”
has emerged that puts the existence of this First Amendment
right “beyond debate.” Zaloga, 841 F.3d at 175.
Plaintiffs contend the absence of Circuit precedent
does not end the inquiry, as after the events in Kelly and True
Blue the Philadelphia Police Department adopted official
policies recognizing the First Amendment right of citizens to
record police in public. As plausible as that may be on the
surface, it does not win the argument. With one breath
Plaintiffs assert that these policies clearly established their
legal right, but for purposes of municipal liability (an issue
we remand) they vigorously argue that the policies were
utterly ineffective in conveying to the officers that this right
clearly existed. And Plaintiffs have compiled evidence
indicating this was so. For example, they point out that
Captain Francis Healy, the policy advisor to the Police
Commissioner, testified that, notwithstanding the adoption of
18
the Department’s policies, the “officers didn’t understand that
there was a constitutional right [to record].” Reply Br. 11
(quoting J.A. 282-83).
As to decisions of other appellate courts relevant to the
qualified immunity analysis, Defendants and the District
Court argue that those decisions are distinguishable because
they involved expressive intent or an intent to distribute. See,
e.g., Alvarez, 679 F.3d at 588 (“The ACLU intends to publish
these recordings online and through other forms of electronic
media.”); Fields, 166 F. Supp. 3d at 538 n.56 (“In Glik, the
plaintiff expressed concern police were using excessive force
arresting a young man in a public park and began recording
the arrest on his cell phone[,] and the police then arrested
plaintiff. . . . Notably, the plaintiff in Fordyce [v. City of
Seattle, 55 F.3d 436 (9th Cir. 1995)] claimed he was
recording a public protect for a local news station.”); see also
D.O.J. Amicus Br. 22 n.14 (“[I]n those cases, the plaintiffs’
objectives or opinions . . . [to disseminate] were apparent
from context. In this respect, Fields’s case in particular is one
of first impression.”). Indeed, the Fifth Circuit just this year
recognized that these other appellate decisions did not clearly
establish the constitutional right to record. See Turner, 848
F.3d at 687.
Where District Courts in our Circuit have held in favor
of the First Amendment right, Defendants also distinguish
those cases for requiring expressive act or intent, not just
recording alone, once again echoing the reasoning of the
District Court here. See Fields, 166 F. Supp. 3d at 537 (“We
find the citizens videotaping and picture-taking in [those
district court cases] all contained some element of expressive
conduct or criticism of police officers and are patently
distinguishable from Fields’ and Geraci’s activities.”).
Whether Defendants and the District Court correctly
distinguished these cases, we cannot say that the state of the
19
law at the time of our cases (2012 and 2013) gave fair
warning so that every reasonable officer knew that, absent
some sort of expressive intent, recording public police
activity was constitutionally protected. Accordingly, the
officers are entitled to qualified immunity.
VI. MUNICIPAL LIABILITY
Because of its First Amendment ruling, the District
Court did not reach whether the City could be held liable for
its officers’ conduct. See generally Monell v. Dep’t of Soc.
Servs., 436 U.S. 658 (1978). While the City contends that
there is no genuine issue of material fact and it cannot be held
liable as a matter of law, we follow our usual practice of
according our District Court colleague the initial opportunity
to resolve these contentions.
* * * * *
We ask much of our police. They can be our shelter
from the storm. Yet officers are public officials carrying out
public functions, and the First Amendment requires them to
bear bystanders recording their actions. This is vital to
promote the access that fosters free discussion of
governmental actions, especially when that discussion
benefits not only citizens but the officers themselves. We
thus reverse and remand for further proceedings.
20
Fields v. City of Philadelphia, No. 16-1650; Geraci v. City
Philadelphia, No. 16-1651
Nygaard, J., concurring in the part, dissenting in part.
I agree with the majority that the cause must be
remanded. Because I conclude that the First Amendment
right at issue is and was clearly established, I dissent.
The question of whether a constitutional right is
clearly established has to be considered in a real-world
context; this is why our analysis is conducted from the
perspective of a “reasonable official.” L.R. v. Sch. Dist. of
Phila., 836 F.3d 235, 247–48 (3d Cir. 2016) (alteration and
citations omitted). Such an approach protects public
officials—particularly our police officers in the field—from
uncertainty about the precise boundary of a particular
constitutional right when situations arise that have not yet
been considered by the courts. Nonetheless, we must apply
this “reasonable official” analysis consistently, recognizing
that there are instances—rare though they may be—when any
reasonable official in the circumstance would know the
boundaries of a constitutional right well before we have ruled
on it. I am confident that this is one of those cases because of
the unique combination of a number of factors.
First, as the majority notes, every Circuit Court of
Appeals that has considered the issue ruled that there is a First
Amendment right to record police activity in public. Four of
these decisions were published before the conduct at issue
here, and two of them occurred after our decision in Kelly v.
Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010), in which
we posited that the right was not clearly established at that
time. See 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).1 I am convinced that such a “robust consensus,”
alone, sufficiently grounds a ruling that the right is clearly
established. L.R., 836 F.3d at 247–48. However, our record
goes far beyond that.
The Police Department’s official policies explicitly
recognized this First Amendment right well before the
incidents under review here took place. Captain Frank Healy
of the Department’s Research and Planning Unit stated that,
in 2011, officers did “not understand the police [were]
allowed to be taped in public.” App. 119 (2013 Healy dep. at
54). Because there was “some confusion on the street” he
testified that there “was a definite need for the policy.” App.
121 (2013 Healy dep. at 62). He said that the Department
wanted “to be on the forefront rather than on the back end,”
of educating its officers on this issue, prompting Police
Commissioner Charles Ramsey to request that a policy be
written requiring police officers to “allow citizens to record
the police.” App. 118 (2013 Healy dep. at 52). The policy
was intended to get “clarification out on the street so the
officers knew what their duties [were].” App. 120 (2013
Healy dep. at 59). It issued a memorandum in September,
2011 stating that police should reasonably expect to be
photographed, videotaped and or audibly recorded by
members of the general public. Commissioner’s
1
Two more recent decisions reinforce the trend. See Turner
v. Lieutenant Driver, 848 F.3d 678 (5th Cir. 2017); Gericke v.
Begin, 753 F.3d 1 (1st Cir. 2014).
2
Memorandum 11-01, issued on September 23, 2011, made
clear to all Philadelphia police officers that they “shall not”
obstruct or prevent this conduct, and that “under no
circumstances” were permitted to disable or damage the
devices being used. App. 1185.
In the year that followed publication of the
memorandum, Internal Affairs received eight complaints by
citizens of retaliation by police for recording police
performing their duties. App. 1569. Additionally, the U.S.
Department of Justice issued recommendations in May, 2012,
that all police departments “affirmatively set forth the First
Amendment right to record police activity.” App. 1675. As a
result, the Commissioner directed Captain Healy and his unit
to revise the Memorandum to incorporate the Department of
Justice recommendations. The revised document was issued
as Departmental Directive 145 on November 9, 2012. Like a
Memorandum, a Directive is also official Departmental
policy, but it covers a topic in greater depth.
Directive 145 plainly requires officers to allow citizens
to make recordings of police activity. The Directive uses,
verbatim, the language of the Department of Justice’s
recommendation, stating that its purpose was to “protect the
constitutional rights of individuals to record police officers
engaged in the public discharge of their duties.” App. 1187.
It said, further, that “observing, gathering, and disseminating
of information . . . is a form of free speech.” Id. Police
officers were prohibited from “blocking, obstructing, or
otherwise hindering” recordings made by persons “unless the
person making such recording engages in actions that
jeopardize the safety of the officer, any suspects or other
individuals in the immediate vicinity, violate the law, incite
3
others to violate, or actually obstruct an officer from
performing any official duty.” Id. As it was published, the
Department mandated that a sergeant read it at every roll call,
Department-wide. Each police officer also received a copy of
the Directive and was required to sign that they received it.
Although the Directives declared a First Amendment
right well ahead of this Court, the Philadelphia Police
Department Commissioner had a desire to “get out ahead” of
what he presciently viewed as an inevitable ruling. With all
of this, it is indisputable that all officers in the Philadelphia
Police Department were put on actual notice that they were
required to uphold the First Amendment right to make
recordings of police activity. From a practical perspective,
the police officers had no ground to claim ambiguity about
the boundaries of the citizens’ constitutional right here.
Mindful of the established trend among the Circuit Courts of
Appeals, this combined with this clear Guidance from the
Commissioner sufficiently grounds a conclusion that the right
to record official, public police activity was clearly
established and “beyond debate.” Zaloga, 841 F.3d at 175
(quoting Reichle, 132 S. Ct. at 2093). However, this, too,
ignores another piece of the context of this case that should be
considered as part of the “reasonable official” inquiry.
The majority cites to the 2011 article of Seth F.
Kreimer,2 in which he notes that, given the ubiquity of
personal electronic devices with cameras, “[w]e live, relate,
work, and decide in a world where image capture from life is
routine, and captured images are part of ongoing discourse,
both public and private. Capture of images has become an
2
Professor, University of Pennsylvania Law School.
4
adjunct to memory and an accepted medium of connection
and correspondence.” 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). If
we are to assess the issue from a reasonable officer
perspective, we cannot artificially remove him or her from
this widespread societal phenomenon. (Indeed, it is not
unreasonable to speculate that most—if not all—of the police
officers themselves possessed such a personal electronic
device at the time that the incidents underlying these cases
took place.) A reasonable police officer would have
understood, first-hand, the significance of this proliferation of
personal electronic devices that have integrated image capture
into our daily lives, making it a routine aspect of the way in
which people record and communicate events. Apart from
any court ruling or official directive, the officers’ own lived
experience with personal electronic devices (both from the
perspective of being the one who is recording and one who is
being recorded) makes it unreasonable to assume that the
police officers were oblivious to the First Amendment
implications of any attempt by them to curtail such
recordings.
As I noted above, I concur with the majority’s analysis
and conclusions regarding the existence of a First
Amendment right to record, and agree that the case against
the City of Philadelphia should be remanded for further
proceedings. However, in light of the social, cultural, and
legal context in which this case arose, I am convinced that—
in this unique circumstance—no reasonable officer could
have denied at the time of the incidents underlying these
cases that efforts to prevent people from recording their
activities infringed rights guaranteed by the First
5
Amendment. For these reasons, I dissent from the majority’s
conclusion that the police officers are immune from suit.
6