Court: Constitution grants right to record police in public

PHILADELPHIA » A federal appeals court in Philadelphia has joined five other circuits in finding that citizens have a First Amendment right to videotape police in public.

The U.S. 3rd Circuit on Friday joined what it called the “growing consensus” that the public can photograph or record police without retaliation.

U.S. Judge Thomas L. Ambro stressed that the U.S. Constitution grants citizens the right to “information about how our public servants operate in public.”

He acknowledged the pressure faced by police but said bystander recordings since at least the Rodney King beating by Los Angeles police in 1991 have both “exposed police misconduct and exonerated officers from errant charges.” Such recordings, he said, provide different perspectives than the images captured by police dashboard and body cameras.

Cellphone recordings in the years since King’s violent arrest was videotaped by a bystander have repeatedly captured shootings of motorists, suspects and others by police, fueling a national conversation around policing and minority communities, activists say.

“There’s just no question in 2017 that the right to record the police is part of the liberty protected by the First Amendment, even more so now that smartphones are as ubiquitous as they are,” said Molly TackHooper, a staff attorney with the American Civil Liberties Union of Pennsylvania who argued the case. “A huge percentage of the country walks around with technology in their pocket that enables them to deter police misconduct by merely holding up a smartphone ... and distributing those recordings at the touch of a button.”

Each federal appeals court that has weighed the issue has found it unconstitutional for police to interfere with such public recordings, Ambro said. The technology allows bystanders to complement traditional press accounts of how police use their power, he said.

The case involves appeals from a Temple University student who took a picture on a public sidewalk of Philadelphia police breaking up a party and a legal observer documenting the arrest of a fracking protester. Both were initially detained, and the student was issued a citation, though it was dismissed when the officer failed to show for court.

City police officials on Friday said a 2012 policy reminded officers not to interfere with public recordings. The policy echoed an opinion from the U.S. Department of Justice.

However, the ACLU said the city had not properly trained officers on the issue. The ruling sends the case back to the lower court judge for trial. The ACLU could ask the city to retrain its officers or seek damages. The appeals court panel found the officers involved immune from damages.

U.S. Circuit Judge Richard L. Nygaard, in a partial dissent, said he would not have granted them immunity given that cellphone recordings were routinely used to document everyday life when the incidents took place in 2012 and 2013.

“The officers’ own lived experience with personal electronic devices ... makes it unreasonable to assume that the police officers were oblivious to the First Amendment implications of any attempt by them to curtail such recordings,” he wrote.