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Federal Judge Says Filming Police Is Not a Constitutional Right, Prompting Appeal

The ruling comes as cellphones have proliferated and more attention has been paid to police interactions with citizens, and may eventually lead to an appeal to the Supreme Court.

by Colleen Curry
Mar 4 2016, 7:20pm

Amanda Geraci is detained by Philadelphia Police Officer Dawn Brown on Sept. 12, 2012. (Photo courtesy ACLU Pennsylvania)

Amanda Geraci has spent a decade of her life working with civil rights groups as a "legal observer," attending protests, marches, and community meetings with an eye toward ensuring that interactions between police officers and citizens follow the letter of the law.

So when Geraci, who has done her legal observer work with groups like Cop Watch and Up Against the Law Legal Collective, was herself detained by a Philadelphia police officer while filming the arrest of a protester at an anti-fracking event in 2012, she believed she had a clear idea of her rights and how to handle the situation.

"I already had my camera out and saw the arrest, which is our standard protocol as a legal observer," Geraci told VICE News. " And I guess this civil affairs cop didn't like that and she came out of what seemed like nowhere, I didn't see her in my peripheral vision, and she came up to the side and pinned me against the wall and was yelling at me."

Geraci says she became very calm and went into "de-escalation mode" from her training. The officer, Dawn Brown, kept her "pinned to the wall for one to two minutes," and chastised her, but didn't arrest her or give her a citation, Geraci said. Two other observers from Geraci's group took photos of the interaction between Brown and Geraci, which now serve as evidence in a lawsuit Geraci has brought against the Philadelphia police department with the help of the ACLU's Pennsylvania chapter.

Related: Related:The FBI Director Says Cops Are 'Under Siege' From Viral Videos

"I've never had an officer come at me like that and I've been doing this for 10 years," she said. "Our collective has a know-your-rights training, and cop watching or witnessing or legal observing, in that section in our training, we let people know that as public servants, it's totally within the purview of the public to watch police."

In the suit, Geraci is joined by another Philadelphia resident, Richard Fields, who was arrested for using his phone to take photos of police officers standing outside of a Philadelphia house in 2013. Both claim that the First Amendment gives them the right to film cops in public, but a federal judge who presided over the case in US District Court in Philadelphia ruled in late February that Fields and Geraci aren't protected under the First Amendment.

Federal District Court Judge Mark Kearney ruled that because neither Geraci nor Fields explicitly said out loud that they were filming the police with the intention of being critical of or challenging the government, they were not protected by the First Amendment.

"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 his opinion, which was issued on February 19. "We have not found, and the experienced counsel have not cited, any case in the Supreme Court or this Circuit finding citizens have a First Amendment right to record police conduct without any stated purpose of being critical of the government."

Kearney noted in his decision that a jury would rule on whether the confiscation of Fields's phone by police during his arrest violated the Fourth Amendment against unreasonable search and seizure. "We are also not addressing a First Amendment right to photograph or film police when citizens challenge police conduct," he added. But he definitively found that making a record of police activity in public was not in itself "customary expressive conduct."

Kearney's decision stands in opposition to many other federal court rulings that have found that filming police, with or without verbal expression of criticism, is a Constitutional right. But those courts hold no precedent over Kearney's district. The ACLU said it will appeal Kearney's decision, taking the case to the 3rd Circuit Court of Appeals, which could set a legal precedent for that district.

Related: Related:People Are Filming the NYPD — And It's Making It Easier to Investigate Misconduct

Kermit Roosevelt, a Constitutional lawyer at the University of Pennsylvania Law School, said that a decision by the court of appeals that sides with Kearney could create a disagreement between federal appeals courts, which could lead the Supreme Court to step in and rule on what, exactly, is covered by the First Amendment when it comes to filming police in public.

But if the Appeals court overturns Kearney's ruling, it likely will not rise to the Supreme Court, he said.

"It's not an entirely clear issue since we don't have a Supreme Court decision, but if you think about the First Amendment, the Supreme Court pretty much agrees the main purpose is to allow citizens to monitor the government so that citizens know how to vote and whether elected officials are doing their jobs or not. So if you think about it, it is crucial to monitor what they are doing," Roosevelt said.

He said that because the amendment protects activities that facilitate speech, such as giving money to a political candidate to facilitate their free speech, that it is logical it should also cover an activity such as gathering and disseminating information about how police are acting. He expected the Appeals Court will overturn Kearney's decision.

But at stake in the case is not just whether individuals must expressly state they are criticizing the police in the moments when they capture an officers' actions on their phones or cameras, but how democracy functions, he said.

"I would say the main point is it's a democracy and the government works for us. We're absolutely entitled to know what the government is doing in public spaces when it's interacting with citizens," Roosevelt said.

Molly Tack-Hooper, a staff attorney with the American Civil Liberties Union who is representing Geraci and Fields in the lawsuit, said that the issue has come up with increasing frequency as cellphones have proliferated and more attention has been paid to police interactions with citizens, with video footage documenting abuses or violations on the part of officers who might otherwise have had the last word in a dispute.

"This is not the first court to address whether the First Amendment protects this right, and most courts have agreed that, indeed, you have a right to do this — the right to gather information about the government," she said.

She added that the ACLU believes that Kearney erred in his ruling, and expects to win on appeal.

Related: Related:Walking the Beat With Copwatch, the People Who Police the Police

Kearney's decision in the Pennsylvania case could be viewed as a good thing in encouraging higher courts to take a closer look at the filming police issue and begin to set legal precedents about what is and isn't allowed, according to Adam Winkler, a constitutional law professor at UCLA.

"I think it makes this an issue that the courts have to deal with or lawmakers have to deal with sooner rather than later. We have major questions about police practices these days," Winkler said.

Though he said it may be premature to view this case as potentially going to the Supreme Court, a case with similar issues will likely eventually make it to that court, he said. In the meantime, Congress and state legislatures should look at enacting laws that explicitly allow individuals to film police in public places, he said.

"There will be more legal cases," he said. "To the extent that we have courts divided on the appropriate way to understand the issue, it makes it more likely the Supreme Court will step in to provide some uniformity."

Jacob Crawford, a founder of the group WeCopWatch, which trains and promotes observing like the kind Geraci was doing, said that it is important to watch police because when police are aware they are being watched or filmed they are less likely to engage in misconduct.

"When a community is looking out for people who are stopped, you can be a deterrent to police misconduct. You don't interfere, but you make your presence known. That's what cop watching is," he said.

Crawford vehemently disagreed with Kearney's decision in the case, calling him a "crackpot judge trying to make a name for himself," and said that citizens have clear rights to document public officials and to remain silent while doing so.

But Crawford's point about interference is an important issue in the national discussion of whether it is appropriate to film police, according to Jim Pasco, executive director of the national Fraternal Order of Police.

"If a police officer is writing a ticket across the street and I'm filming it, what's the harm, but if a police officer is involved in a scuffle and someone is trying to get in there to get footage of that scuffle, that could be very harmful," he said.

The FOP has taken a position that people should not interfere with police officers, but Pasco said that it should be up to local governments to determine what, exactly, that means.

"You get into gray areas as to what constitutes interference," he said.

Related: Related:The NYPD Will Now Give 'Receipts' To the People They Stop and Frisk

Part of the reason Geraci says she became involved in legal observing and civil rights was to help empower communities — particularly those of color or of lower socioeconomic status — to understand their legal rights when it comes to interacting with police. And filming police is one way to encourage both officers and citizens to act lawfully, she said.

"The reason why cop watching and legal observing and Up Against the Wall exist is because the more information and access to power civilians have against police and state repression, the more safe and also empowered both groups of people can be," Geraci said. "Part of these trainings is to cut down on abuse of power for everyone."

Tack-Hooper said that this lawsuit is the latest in a series of suits the ACLU in Pennsylvania has filed against Philadelphia police for similar issues. She expects to file an appeal of Kearney's decision within 28 days, though the case will likely take months to move through the appeals court system, she said.

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