One of the Nation’s Only Judges to Rule Against Right to Record Police Just Got Overturned

If you are one of the 77 percent of Americans who own a smartphone, then there’s a good chance that every time you leave the house, you carry with you the most powerful tool for police accountability that exists today. On Friday, yet another federal court ruled that your right to record the police performing their duties in public is part of the freedom of speech protected by the First Amendment.

Time and again we’ve seen civilians’ photos and videos of police expose the realities of policing in powerful ways. Ordinary people’s cell phone recordings of police interactions have been a starting point for national conversations about police reform and have sparked grassroots movements seeking accountability for how — and against whom — the police use their tremendous power.

Unsurprisingly, police retaliation against civilians who attempt to record police has also become commonplace.

Last week, the Third Circuit Court of Appeals (which covers Pennsylvania, Delaware, and New Jersey) became the sixth federal appellate court to acknowledge that ordinary people with recording devices not only have an important role to play in holding the police accountable — they also have constitutional protection for this activity. When police retaliate against people who record them, they violate the First Amendment. No federal court of appeals has disagreed with this. Five of the courts of appeal have not ruled on the matter, but it’s looking increasingly unlikely that any of them will disagree.

In the past few years, the ACLU of Pennsylvania has filed five lawsuits against the City of Philadelphia — and several more against other municipalities — on behalf of people who were arrested, detained, or cited in retaliation for recording the police. The most recent two cases in this series were brought on behalf of Rick Fields, a Temple University undergrad arrested on a public sidewalk for taking an iPhone photo of police breaking up a house party across the street, and Amanda Geraci, a legal observer who was violently restrained across the neck by a police officer at a demonstration when she attempted to photograph the police arresting a protestor. In February 2016, a trial judge threw their cases out, reasoning (incorrectly) that the act of recording the police was not protected by the First Amendment.

On July 7, the Third Circuit reversed that ruling, concluding that Mr. Fields and Ms. Geraci’s First Amendment rights had been violated.

The court explained that, because the First Amendment plainly protects the right to possess and distribute photos and videos, it must also protect the act of making those photos and videos. But even more importantly, the court explained, the First Amendment protects the right to gather information about public officials, including police officers. Without a constitutional right to collect and disseminate information about the government, the people would be left in the dark, unable to make informed decisions and participate effectively in the democratic process.

Indeed, in 2017, civilians with smartphones are as critical a source of information about how police officers use their power as the formal press. As the Trump administration begins to scale back the federal government’s police reform and civil rights work, the role that ordinary people play in keeping the local police forces in check has never been more important.  

So download the ACLU Mobile Justice app for your state. Brush up on your rights when recording the police. And if you find yourself witness to a police encounter that you think needs to be documented, stay safe, and pull out your phone. The ACLU and the U.S. Constitution have your back.

 

View comments (19)
Read the Terms of Use

Dead

A citizen records a cop shooting and killing an unarmed suspect that had their hands up. The officer was white and suspect Hispanic. The video is released online via Facebook. The officers name is determined and their public info released. A van with Hispanic gang members drive by thier house and shoot it up. The officer is killed before they go to trial.

Who wins?

Anonymous

They've already been recorded doing this how many times. What you're suggesting rarely if ever happens.

Anonymous

Hypothetical? If not, please cite sources. Thank you

Anonymous

When did this happen and can you provide me a link? I can't find it online.

Happens

Happens all the time in Sonora Mexico!

Aaron

So really, it's the videographer's fault rather than the cop shooting an unarmed civilian? If cops are afraid of rtaliation for being filmed, maybe they shouldn't be doing the thing that is bing filmed in the first place.

Anonymous

If a cop gets caught shooting and killing an unarmed suspect that had their hands up and than gets murdered who wins?
I would think that the American citizens would be the winners.
Who needs Police that would shoot and kill unarmed citizens on the streets.

Sisyphus

Until the last several years when I became very aware of just how widespread and prolific were unjustified police shootings, punitive use of their tasers, and pepper spraying unarmed men, women and even children, and after for purposes of this hypothetical I suspended my disbelief in its ludricrousness, my gut instinct would be to shocked at the vigilante justice illustrated and I would have parroted such trite sayings as "no one should take the law into their own hands," "2 wrongs don't make a right," "everyone deserves their day in court," "innocent until proven guilty," ad nauseum. But I've become much less of an idealist/idealogue as I've observed that it is exceedingly rare for law enforcement officers in these settings to receive anything more than slaps on the wrist. Even when they are fired to satiate or satisfy the communities blood lust, the town next door snaps them up in a heartbeat to save money.

Now I'm much more pragmatic. If such an extreme reprisal against any officer who knowingly shoots an unarmed man, tasers a handcuffed suspect, or pepper sprays a sitting non-violent civil rights protester, and that the extreme reprisal vigilante justice gives pause to any other officers to hesitate or think better of shooting suspects known at the time to be unarmed, tasering someone repeatedly for little more than disrespecting them, or pepper spraying sitting protestors when less torturous compliance methods would have worked as well, my sympathy lies much more for the original unarmed suspect in your hypothetical than the officer who executed in him cold blood rather than officer who murdered him "under the color of law" and would have undoubtedly and predictably raised the overused canard of being in fear for his life at trial before his likely acquittal of all serious charges.

Barack Insane Obama

isn't it sad how the GayCLU always sides with the criminals and always against law enforcement? Maybe that's because the GayCLU is made up of nothing but criminals themselves. Anthony Romero is gay also

Anonymous

Why is the public right to record police officers, paid by said public, an act against law enforcement?

Pages

Stay Informed