E.D.Pa.: No First Amd. right to video police on the job in CA3, but excessive force claim goes to trial

There is no First Amendment right to record police on the street doing their job in the Third Circuit. The First Amendment claim has to include expressive conduct, and this isn’t. The plaintiffs’ excessive force and false arrest claims, however, survive summary judgment and will go to trial. Fields v. City of Philadelphia, 2016 U.S. Dist. LEXIS 20840 (E.D.Pa. Feb. 19, 2016):

In two incidents a year apart, Philadelphia police officers possibly violated the Fourth Amendment when encountering citizens either before or after the citizens captured police conduct on film. The citizens never told the police why they were capturing images of the police interacting with people they did not know. They were watching their police officers in action and wanted to capture the images because, at least for one of the citizens, “[i]t was an interesting scene. It would make a good picture” and for the other because she is a legal observer trained to observe the police. The question today is whether citizens also enjoy a First Amendment right to photograph police absent any criticism or challenge to police conduct. The citizens urge us to find, for the first time in this Circuit, photographing police without any challenge or criticism is expressive conduct protected by the First Amendment. While we instinctively understand the citizens’ argument, particularly with rapidly developing instant image sharing technology, we find no basis to craft a new First Amendment right based solely on “observing and recording” without expressive conduct and, consistent with the teachings of the Supreme Court and our Court of Appeals, decline to do so today.

We begin by reminding the parties we are not addressing whether the officers’ conduct violated the Fourth Amendment which awaits the jury’s credibility evaluation. We are also not addressing a First Amendment right to photograph or film police when citizens challenge police conduct. We focus only on the facts in this case. Our analysis must temporally separate the police’s taking of a cell phone, arresting the citizen or applying excessive force. While courts applying the Fourth Amendment have long held police may not seize phones or arrest citizens without probable cause and cannot use excessive force, this case asks us only to study one snapshot in time through the lens of the First Amendment only: whether photographing or filming police on our portable devices without challenging police is expressive conduct protected by the First Amendment.

. . .

Applying this standard, we conclude Fields and Geraci cannot meet the burden of demonstrating their taking, or attempting to take, pictures with no further comments or conduct is “sufficiently imbued with elements of communication” to be deemed expressive conduct. Neither Fields nor Geraci direct us to facts showing at the time they took or wanted to take pictures, they asserted anything to anyone. There is also no evidence any of the officers understood them as communicating any idea or message.

As in Troster and Tenafly, we find Fields and Geraci offered nothing more than a “bare assertion” of expressive conduct. Because this bare assertion falls short of their burden of proof following discovery, Fields and Geraci cannot proceed on a First Amendment retaliation claim under our customary analysis.

B. Expanding “expressive conduct” to include “observing and recording.”

Fields and Geraci essentially concede they spoke no words or conduct expressing criticism of the police before or during their image capture. They instead want to persuade us “observing” and “recording” police activity is expressive conduct entitled to First Amendment protection as a matter of law. In their view, observing is a component of “criticizing” and citizens may engage in speech critical of the government. We find no controlling authority compelling this broad a reading of First Amendment precedent.

. . .

b. Guidance from other authorities.

We recognize courts outside the Third Circuit and at least one noted commentator have found observing and photographing police activity without any criticism of the government fall within the realm of First Amendment protected activity. 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.