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Camera-Shy Cops Have No Legal Recourse

A federal appeals court confirms the First Amendment right to record police.

Last month former FBI Director James Comey said he was relieved to hear there might be "tapes" of his conversations with Donald Trump, since the audio record would confirm his account of those interactions. Last year Comey was less keen on recordings of law enforcement officials, worrying that "viral videos" of police encourage a dangerous passivity that may contribute to rising homicide rates.

Those dueling reactions reflect the dual potential of ubiquitous recording technology, which can expose bad behavior or exonerate cops falsely accused of it. Police across the country will have to adjust to the reality that any citizen with a smartphone can record them when they are on duty, because there is nothing they can legally do to stop it, as a federal appeals court confirmed last week.

The decision, by the U.S. Court of Appeals for the 3rd Circuit, involved two incidents in which Philadelphia police officers forcibly interfered with people who were trying to record them. Such harassment, which often involves phone confiscation and trumped-up criminal charges, is sadly common, even though every federal appeals court to consider the issue has said it violates the First Amendment.

In 2012 Amanda Geraci, a member of a police watchdog group, was observing an anti-fracking protest at the Philadelphia Convention Center when she tried to record an arrest. As the 3rd Circuit describes it, "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."

In 2013 Richard Fields, then a Temple University sophomore, was standing on a sidewalk when he noticed cops breaking up a house party. After he took a picture and refused to leave the area, the police grabbed his phone and cited him for obstructing a public passage.

After Geraci and Fields sued the cops and the city, the defendants did not challenge their claim that the First Amendment protects the right to record police in public places. That would have been hard to do, since the Philadelphia Police Department has officially acknowledged as much since 2011.

Instead the officers argued that they should be immune from liability because the right to record the police was not "clearly established" when they violated it. U.S. District Judge Mark Kearney gave them a victory they were not seeking, saying what Geraci and Fields were trying to do was not sufficiently "expressive" to be protected by the First Amendment.

According to the 3rd Circuit, Kearney missed the point. "This case is not about whether Plaintiffs expressed themselves through conduct," the appeals court says. "It is whether they have a First Amendment right of access to information about how our public servants operate in public….Recording police activity in public falls squarely within the First Amendment right of access to information."

The appeals court nevertheless concludes that the law was not clear enough on this point in 2012 or 2013 to hold the officers responsible for violating it. As Judge Richard Nygaard notes in his partial dissent, that aspect of the ruling is hard to swallow.

When the cops roughed up Geraci and detained Fields, four circuit courts had already ruled that recording police is protected by the First Amendment. Even more tellingly, Nygaard notes, "the Police Department's official policies explicitly recognized this First Amendment right well before the incidents under review here took place."

The department's rule against interfering with recordings, established in 2011, was reiterated in 2012, when "the Department mandated that a sergeant read it at every roll call." Nygaard notes that "each police officer also received a copy of the Directive and was required to sign that they received it."

Given this background, it's hard to believe the cops who assaulted Geraci and stole Fields' phone did not realize their actions were illegal. Ignorance of the law is no excuse for the people cops arrest, and it should not protect police when they violate our constitutional rights.

© Copyright 2017 by Creators Syndicate Inc.

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  • Scarecrow Repair & Chippering||

    Maybe now there is sufficient notice for even the dumbest most disingenuous cop to get the hint, and there won't be any more of this qualified immunity bullshit, at least in this one specific corner of cop constitutional carve out.

  • Bob2||

    "the dumbest most disingenuous cop"
    And that's the standard we live with.
    And pay for in so many ways.
    Over and over and over. . .

  • loveconstitution1789||

    But as a citizen, even brand new laws are clearly established enough to arrest you, charge you and put you on trial.

  • Hank Phillips||

    ... and shoot you if you resist or flee.

  • creefer||

    ...or your dog if fytw.

  • Fist of Etiquette||

    ...even though every federal appeals court to consider the issue has said it violates the First Amendment.

    It's almost as though violating constitutional rights comes without punishment.

  • Hank Phillips||

    Who among you mice volunteers to bell the cat?

  • Citizen X - #6||

    "They have made their ruling. Now let them enforce it."

  • sarcasmic||

    Police across the country will have to adjust to the reality that any citizen with a smartphone can record them when they are on duty, because there is nothing they can legally do to stop it, as a federal appeals court confirmed last week.

    Cops' actions ruled illegal.

    The appeals court nevertheless concludes that the law was not clear enough on this point in 2012 or 2013 to hold the officers responsible for violating it.

    Cops face no consequences for their actions.

    Given this background, it's hard to believe the cops who assaulted Geraci and stole Fields' phone did not realize their actions were illegal.

    Cops don't give a shit.

  • Hank Phillips||

    I'm still hazy on the fine points. Suppose I'm a cop chastizing a protester or marijuana addict and I retaliate against some miscreant recording me in obstruction of justice. In that situation, is shooting the bastard first-degree or second-degree camera-shyness?

  • dantheserene||

    "Camera-Shy Cops Have No Legal Recourse"
    But they'll still fall back on the old reliable, FYTW.

  • Cynical Asshole||

    The decision, by the U.S. Court of Appeals for the 3rd Circuit, involved two incidents in which Philadelphia police officers forcibly interfered with people who were trying to record them. Such harassment, which often involves phone confiscation and trumped-up criminal charges, is sadly common, even though every federal appeals court to consider the issue has said it violates the First Amendment.

    And it will continue to be just as common. Surely no one believes the pigs give 2 shits what some appeal's court ruled?

  • sarcasmic||

    They don't give a shit what any court rules. Court rulings don't apply to them. They are above the law. They can face punishment for violating policy, depending on if it is an enforced policy or not. Rape, murder, illegal arrest, and shit like that are policies that are not enforced. Lying to superiors or failing to shoot, those are policies that are enforced.

  • Curt||

    "The appeals court nevertheless concludes that the law was not clear enough on this point in 2012 or 2013 to hold the officers responsible for violating it."

    And, courts will continue to reach the same conclusion for several decades to come. What's going to be really fun is when the cops from these stories do the exact same thing again next year. And, even after having gone through the courts in these particular cases, some future court is still going to rule that the law wasn't sufficiently clear to them.

  • Curt||

    And by the way, the headline "Camera-Shy Cops Have No Legal Recourse" is proved definitively wrong by the article. They absolutely have legal recourse. and that is the ever-present argument that cops have the special immunity that they are allowed to be found innocent on the basis of being ignorant of a law. Even though they are charged with enforcing the law and normal people do not get the same immunity.

  • Mark22||

    Last year Comey was less keen on recordings of law enforcement officials, worrying that "viral videos" of police encourage a dangerous passivity that may contribute to rising homicide rates.

    Concern trolling at the highest levels, I see. Or simple, brazen dishonesty and manipulation.

    EIther way, Comey keeps proving to the world that he couldn't be trusted with a high government job. Good riddance.

  • Uncle Jay||

    RE: Camera-Shy Cops Have No Legal Recourse
    A federal appeals court confirms the First Amendment right to record police.

    Being a cop is undoubtedly a tough job.
    Nevertheless, the First Amendment takes precedence over a policeman's job when they are on duty, with the possible exception being while they are undercover.

  • pan fried wylie||

    "So what you're saying, is, there's no LEGAL recourse...."

    /Charlie

  • croaker||

    There's always Rule 308.

  • ToCa81||

    Recordings are great for public outrage and all, but they haven't really made a difference in the courtroom. Perhaps changing the way police brutality cases are prosecuted would be more productive.

  • ||

    But for some reason the government (the city) still didn't think it should just admit their officer's mistake and settle, but go through with an expensive and time-consuming legal process. Why?

  • Robbzilla||

    Because it's not their money on the line. It's the taxpayers'.

  • Chili Dogg||

    So how were the cops punished for breaking the law?

    Haha! Just kidding!

  • swampwiz||

    I would have thought that these folks recording the cops were guilty of backsassing.

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