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Free Speech

Right to Record Government Employees Applies Beyond Just Police Officers


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….


NEXT: Today in Supreme Court History: December 9, 2015

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  1. So. "You can't sue me as a government employee, because I was acting as a private citizen when I attacked you, but since I'm a government employee, I get qualified immunity anyway."

    I see how that works.

    1. Yeah.

      But also, it's probably worth noting that this defendant might be entitled to QI. There's a clearly established legal rule on recording the police. Does it extend to others in the government doing code enforcement?

      I don't like QI, but under the law, the proper result here may be to hold that this did violate the First Amendment but the defendant is entitled to QI.

      1. The court did address that specifically: "Moyer's argument [for QI, on the basis that the rule was only clear as to law enforcement officers] therefore lacks merit."

      2. There's a clearly established legal rule on recording the police. Does it extend to others in the government doing code enforcement?

        If only that were covered in the court's findings quoted in the article you're commenting on...clearly without having bothered to read it.

        1. The Court is cheating. I did read it, and my first reaction was "that's not how QI works, and the Court of Appeals or SCOTUS is likely to inform the judge of this".

          1. The Court is cheating.

            Based on what, exactly?

            1. Clearly established law operates at a fairly specific level of generality. You can't say "you have a clearly established First Amendment right to record any government official"- you don't. Maybe you should, but you don't. (Try openly recording a live, non-Zoom federal court proceeding in the courtroom and let me know how it goes.)

              So what we have is a line of cases about recording the police. And they clearly establish the law with respect to recording the police.

              Now this case comes along, and asserts you have a First Amendment right to record the employee of an administrative agency visiting your domicile. Now, again, I think you generally should have that right (and specifically think you should under these facts). But cases saying you have the right to record the police do not clearly establish this right.

              That's how QI works. You need a close case. Doesn't have to be exact, but it has to be not materially distinguishable. Recording administrative agency employees is a different issue. Indeed, it might play differently if they are conducting a home inspection as opposed to doing something else.

              I don't like QI. This is one of the reasons I don't like it. But this judge is basically disobeying Supreme Court authority as to what it means, because he is sympathetic to the plaintiffs. District judges aren't allowed to do that, and there have been a number of summary reversals by SCOTUS on precisely this type of issue.

              1. The recording was in a front yard, not in a courtroom.

              2. I'm just going to point out that the police were who was being recorded, and that Moyer, while not police himself, interfered with recording police.

                He should be clearly on notice that police can be recorded, and interfering with such a recording in the capacity of a government official is a violation of a person's rights, whether or not you're a police officer doing the interfering.

                (ie, Moyer interfered with recording of a police officer, not with the recording of himself. The lede is "misleding".

              3. It seems to me that the question is, is it reasonable for a water board inspector, knowing that people have a constitutional right to record a policeman, to suppose that it might still be illegal to record him? Is there some reasonable argument he might make to himself for why he is so special that he is entitled to more protection than a policeman, and so much more protection that it can override a constitutional right? If there is no such argument he could make to himself, then he is effectively on notice that there's a right to record him too.

                If that's not how it works, it should be.

      3. "But also, it's probably worth noting that this defendant might be entitled to QI. There's a clearly established legal rule on recording the police. Does it extend to others in the government doing code enforcement?"

        Irrelevant. The government employee prevented the plaintiff from recording the police. (IMO the headline is a little misleading.)

  2. Shenandoah Township considered the conduct and judgment of officer Moyer -- an officer who needs and accepts the assistance of his father to handcuff a citizen after a dispute with the father -- and promoted him.

    The clingers of Shenandoah elected Moyer to be a school director, and the Pennsylvania State Police Academy accepted Moyer for admission.

    Shenandoah Township is -- believe it or not -- located in the portion of Pennsylvania that might as well be in Alabama, West Virginia, Wyoming, or Kentucky.

    1. I don't particularly care where it is, it was a clear violation, and the decision was not only right, it was obvious.

    2. A Shenandoah police lieutenant of the same name was convicted in 2011 of lying related to fatal police beating.

  3. Did they ever get their water turned on?

  4. Isn't it about time we stop hiring aggressive, belligerent bullies as police officers?

    1. Was there ever a time when it was appropriate to hire aggressive, belligerent bullies as police officers.

  5. It's past time to start hanging public officials from lamp posts.

    1. I reluctantly agree. If the justice system cannot figure out how to police its own, their victims (that is, the rest of us) will inevitably start to take matters into their own hands. And that will be far bloodier.

    2. Why do you hate lamp posts?

    3. I tend to think that's what they were invented for. If they weren't why are cities, particularly the area around government buildings so well lit?

  6. Is there some momentum against qualified immunity, or is the Conspiracy simply reporting more good outcomes?

    I hope the former.

  7. How can you act "in a purely private, individual capacity" and then claim qualified immunity?

    1. In the law we can argue in the alternative.

      It's not broken, and if it is, it was like that when I got it, and if it wasn't, then someone else must have done it.

      I'm a private citizen… and if I'm not, then I get QI.

    2. It's an "argument in the alternative". He's really saying:
      1. I believe I was acting in a purely private capacity (and should win because of that). But if the court disagrees and finds that I was acting in an official capacity, then
      2. I should win there too because if it actually was official, (un)qualified immunity will apply.

      It looks a bit weasely but it's kind of required because of the way we make litigants make all their arguments in writing up front.

  8. "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.""

    Only a hippy-dippy style of jurisprudence could create a "right" where one doesn't actually exist.

  9. There's so much more to this story, stuff that is simply wrong! What was the crime that the office was supposedly there to arrest the man for? And to come on to his property and force him from a car for failing to produce his ID? Holy cow.

  10. "Moyer called his son"
    Moyer should be fired for not calling 911 if a true emergency existed. His son is not his personal police force.
    The patrolman-son should be fired for responding to his father's call instead of telling the father to call 911.

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