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Watching The Cops Title: Judge says public has no right to record police on cellphones Across the country, videos of police arresting and even shooting people have sparked lawsuits, protests and even riots. But if a federal judge's opinion stands, bystanders could be handcuffed in their ability to hold officers accountable by recording them. U.S. District Judge Mark Kearney in Philadelphia says citizens have no constitutional right to record officers unless they explain they are recording for the purpose of criticizing police, which then would be protected by the First Amendment. That doesn't mean it's illegal to record, but his opinion could open the door to that possibility. "We find there is no First Amendment right under our governing law to observe and record police officers absent some other expressive conduct," Kearney wrote in an opinion in February in two cases involving Philadelphia police. Standing silently with a phone or camera doesn't cut it, he said. His opinion conflicts with federal court opinions elsewhere in the country and has been appealed. The ruling hasn't prompted police in the Lehigh Valley and elsewhere in Pennsylvania to change policies and shouldn't deter people from recording because it's not illegal. "Even if there were no constitutional rights to record the police, that still doesn't make it a crime to record the police," said Molly Tack-Hooper, an attorney with the American Civil Liberties Union in Philadelphia who is working on the cases. Yet the ruling is important because if the appeal fails, that could clear the way for state lawmakers to try to pass legislation making it illegal to record police, as there would be no constitutional barrier, Tack-Hooper said. An attempt to do that would be extremely misguided, but I could see someone in Harrisburg trying. Lawmakers already have pitched other needless legislation to supposedly protect police, such as pending House Bill 1538. It would grant anonymity to officers involved in the "discharge of a firearm or the use of force" unless the officer is charged with a crime. If no charge is filed, the officer's identity would be kept secret to protect the "officer or their immediate family." Last year, a lawmaker in Texas proposed legislation that would have made it illegal for people other than reporters to record or photograph police within a certain distance. The bill was scrapped amid criticism. Police shouldn't fear being recorded. Many departments have cameras in their vehicles, on their uniforms and mounted all over town, video that could be used against us if we did something wrong. Officers should be subject to the same oversight. Bystanders have documented police actions or the aftermath of their actions in the controversial deaths of several unarmed black men in recent years, including Freddie Gray in Baltimore; Michael Brown in Missouri; Walter Scott in South Carolina; and Eric Garner in New York. Plastered on social media, the videos horrified people, prompting protests and lawsuits, and forcing authorities to investigate the incidents and re-examine policies. Witness videos have played a role in local cases, too, including the 2014 arrest and subsequent acquittal of the former Allentown police chief's son, who argued he should never have been confronted by undercover Lehigh County detectives, whom he mistook as road-raging motorists. Other videos showed an Allentown officer wrestling street singer James Ochse to the ground outside a downtown restaurant last year and Allentown officers kneeing and punching Cristhian Ramirez as they handcuffed him after a traffic stop downtown in 2014. Ramirez settled an excessive-force lawsuit for $25,000. In settling the case, the city did not admit any wrongdoing. Allentown resident Eli Heckman has a federal lawsuit pending against Allentown police, alleging he was grabbed and shoved "in an extremely rough manner" after filming a struggle between officers and a man in 2014. His suit alleges he had a right to peaceably occupy a public sidewalk and that "the recording served a major purpose of the First Amendment which protects the free discussion of governmental affairs." Most charges against the man who was struggling with officers in the video later were dropped, something his attorney attributed to the video. Heckman sued prior to Kearney's ruling. His lawsuit contends, contrary to Kearney's opinion, that he "need not assert any particular reason for filming police in the public arena." In court documents responding to Heckman's lawsuit, the lawyer for the city and its officers argued the point that Kearney later made — the federal court in this region "has never recognized a clearly established First Amendment right to video-record police actions." Tom Gross, executive director of the Pennsylvania Chiefs of Police Association, told me police chiefs aren't asking about the ruling or operating differently because of it. He said there's still a lot of "gray area" regarding recording of police and noted other federal court rulings strongly support the public's right to record. Police in Allentown and Easton have no formal policies regarding video, but consider the public to have the right to record if they aren't interfering with officers or creating a hazard. "What we do stress to our officers, as long as individuals are not interfering with the police activity that is taking place, they have a general right to record," Allentown police Chief Keith Morris said. Police in Easton haven't had problems, Chief Carl Scalzo said, including when a group that films DUI checkpoints showed up at one in Easton. "They did their thing, we did ours," he said. The federal case that Kearney ruled on stems from two lawsuits by people alleging their constitutional rights were violated by Philadelphia police. Richard Fields, a Temple University student, stood on a sidewalk and used his cellphone to photograph officers breaking up a party across the street in 2013. According to his lawsuit, Fields did not speak to anyone and was told by an officer to leave. He refused and the officer detained him in a police van, searched his phone and cited him for "obstructing highway and other public passages." The citation later was withdrawn. Amanda Geraci, a self-described "legal observer" of police, claimed in her lawsuit that an officer prevented her from recording an arrest at a fracking protest in 2012. She was not arrested. In his opinion, Kearney, citing Supreme Court cases, ruled that not all actions can be labeled "speech" and that Fields and Geraci were not engaged in "expressive conduct" because they hadn't "asserted anything to anyone. There is also no evidence any of the officers understood them as communicating any idea or message." Kearney said rulings in favor of people who had recorded or photographed police "all contained some element of expressive conduct or criticism of police officers and are patently distinguishable from Fields' and Geraci's activities." He acknowledged that federal courts in other parts of the country have ruled otherwise, but said that doesn't matter. "While we understand these opinions, the present law in this circuit does not recognize a First Amendment right to observe and record without some form of expressive conduct, and photographing police is not, as a matter of law, expressive activity," Kearney wrote. While he rejected claims that Fields' and Geraci's First Amendment rights were violated, their cases remain pending as to whether there was a violation of their Fourth Amendment rights to protection against unwarranted search and seizure. The appeal of his dismissal of their First Amendment claims is pending at the 3rd U.S. Court of Appeals in Philadelphia. I'll write more when the case is heard. The Watchdog is published Thursdays and Sundays. Contact me at watchdog@mcall.com, 610-841-2364 or The Morning Call, 101 N. Sixth St., Allentown, PA, 18101. I'm on Twitter @mcwatchdog and Facebook at Morning Call Watchdog. Post Comment Private Reply Ignore Thread Top • Page Up • Full Thread • Page Down • Bottom/Latest Begin Trace Mode for Comment # 2.
#2. To: Willie Green (#0)
At least not under the pseudo-First Amendment created by the courts and imposed on the states. However, state laws may protect such a right. For example, here in California, the law provides: 69. (a) Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law, or who knowingly resists, by the use of force or violence, the officer, in the performance of his or her duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both such fine and imprisonment. (b) The fact that a person takes a photograph or makes an audio or video recording of an executive officer, while the officer is in a public place or the person taking the photograph or making the recording is in a place he or she has the right to be, does not constitute, in and of itself, a violation of subdivision (a).
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