Federal judge: Citizens can't always record the police

A federal judge in Pennsylvania has added an unexpected caveat to Americans' right to record on-duty police officers.

US District Judge Mark Kearney ruled Friday that the right to record police only extends to instances when the person doing the recording is engaging in "expressive conduct" that in some way challenges or criticizes the officers.

The decision in Fields v. City of Philadelphia potentially conflicts with other recent court decisions that have protected citizens' right to document police in video and photographs in public places under the First Amendment. 

Other rulings have placed certain restrictions on the right to record officers, but it was generally held that the Constitution does allow public recording.

“We have not found, and the experienced counsel have not cited, any case in the Supreme Court or this Circuit finding citizens have a First Amendment right to record police conduct without any stated purpose of being critical of the government,” Judge Kearney wrote in the decision. “Absent 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.”

The Fields case revolved around two separate incidents. The first involved Richard Fields, a Temple University student, who, in 2013, saw a group of police officers standing near a home hosting a party, and decided to photograph the scene. Mr. Fields was prompted to leave by an officer, refused, and was detained and cited. His cell phone, which he had used to take the photograph, was searched.

The second incident involved Amanda Geraci, a “legal observer” attending a 2012 public protest in Philadelphia. Ms. Geraci said that when she attempted to record the arrest of one of the protesters, an officer physically restrained her and prevented her from filming.

Both Geraci and Fields sought damages for violation of the First Amendment, for preventing their efforts to photograph or film the police officers, and the Fourth Amendment, for violating her “right to be free from excessive force” and his protection against “unreasonable search and seizure and false arrest,” respectively.

While the court denied the First Amendment claims, their Fourth Amendment claims were found to have merit. The court declined to establish a First Amendment videorecording right, but suggested that “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.”

The decision means that, pending the result of Field’s and Geraci’s planned appeal, US citizens do not have “a First Amendment right to record police conduct" unless they have a "stated purpose of being critical of the government.”