Free Speech

Right to Record Government Employees Applies Beyond Just Police Officers

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From Aguilar v. Moyer, decided Tuesday by Magistrate Judge Martin C. Carlson (M.D. Pa.):

The following facts are taken from the plaintiff's complaint, which we must accept as true for the purposes of this motion to dismiss. On April 5, 2019, Priscilla Aguilar's husband, Carlos Figueroa, called Water Authority in an attempt to restore the water connection to the couple's house. Though he was informed that no employees were available to restore the connection, Figueroa later noticed Moyer, a Water Authority employee, on the property.

Figueroa inquired as to whether Moyer "was there to turn the water on," to which Moyer responded he was there to ensure the water remained off. Figueroa then asked whether Moyer could turn the water on, to which Moyer replied that he would "need a work order" to do so. Figueroa expressed his anger over Water Authority's apparent misrepresentation of its employees' availability. He then reentered the couple's house when Moyer threatened to call the police.

Despite Figueroa's withdrawal from the conflict, Moyer called his son, "a patrolman with the Borough of Shenandoah Police Department," from his work truck. Figueroa and Aguilar then left the house and entered their parked vehicle without starting the engine. While the couple sat in their vehicle, Moyer exited his truck and photographed Aguilar, Figueroa, and their vehicle's license plate.

About ten minutes after Moyer placed the call to his son, his son arrived in a police cruiser and asked Figueroa for identification. Aguilar then began recording the interaction between Figueroa and Moyer's son using Figueroa's cell phone. Figueroa refused to produce identification, at which point Moyer's son "opened the door of the vehicle, grabbed [Figueroa] by the elbow and pulled him out, throwing him onto the ground." In response to Figueroa's subsequent offer to produce identification, Moyer's son allegedly responded, "It's too late for that now."

At this point, Moyer, in what the plaintiff characterizes as an apparent attempt to protect his son's reputation as a police officer, pushed Figueroa's cell phone out of Aguilar's hands. Moyer then forcibly escorted Aguilar approximately 20 feet away from the scene of Figueroa's arrest. After moving Aguilar away, Moyer then returned and placed his knee on Figueroa's back while his son handcuffed him.

Aguilar sued based, among other things, on the First Amendment, and the court allowed the case to go forward:

At this stage of the proceedings, we cannot conclude that Moyer's actions fell outside the color of law…. Moyer argues that he acted "in a purely private, individual capacity" in interfering with Aguilar's recording of her husband's arrest. However, according to the complaint, on the day of the incident Moyer told Figueroa that he was at the residence "to make sure the water was off." This would suggest that Moyer was at the residence in his capacity as a Water Authority employee.

Further, Moyer's action—hitting the phone out of Aguilar's hand—was intertwined with several other actions, including contacting police and interfering with the subsequent arrest by escorting Aguilar away and incapacitating Figueroa. These actions raise questions as to whether Moyer's threat of police intervention would have been possible without his presence as a Water Authority employee, as well as whether he used his official position as authority to assist with an arrest. Indeed, on the pleadings alone, it is impossible to extricate one action—knocking the cell phone from Aguilar's hands—from the totality of the circumstances of the entire incident. …

Moyer alternatively argues that he is entitled to qualified immunity from Aguilar's First Amendment claim. At this juncture we cannot determine the extent to which qualified immunity may be available to Moyer. "Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct." … An official's conduct violates clearly established law when, "at the time of the challenged conduct, '[t]he contours of [a] right [are] sufficiently clear' that every 'reasonable official would [have understood] that what he is doing violates that right.'" …

The right of individuals to record public police activity has been clearly established within the Third Circuit since 2017. See Fields v. City of Philadelphia (3d Cir. 2017) ("recording police activity in public falls squarely within the First Amendment right of access to information"). In upholding this right, Fields ruled that:

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."

This holding does not distinguish between the actions of law enforcement and other government officials; rather, the Fields court openly acknowledged the applicability of its ruling to all "government" officials, regardless of position. Moyer's argument that "there is no legal authority that would put a municipal water employee on notice" of his potential liability for interfering with others' rights to record police activity therefore lacks merit. While most of the Third Circuit's cases on this topic address the actions of police officers, this does not preclude the Fields ruling from extending to an individual like Moyers, a municipal water employee who is alleged to have requested police intervention, then taken affirmative steps to prevent the recording of this police activity while actively intervening in this law enforcement encounter….