The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PHILADELPHIA BAIL FUND : CIVIL ACTION
:
v. :
:
ARRAIGNMENT COURT MAGISTRATE :
JUDGES, et al. : NO. 19-3110
MEMORANDUM
Bartle, J. February 25, 2020
This case involves the First Amendment right of public
access to bail hearings in the Philadelphia Municipal Court.
Plaintiff Philadelphia Bail Fund, a non-profit
organization advocating for reform of Philadelphia’s bail
system, brings this action under 42 U.S.C. § 1983 against
Philadelphia Municipal Court Arraignment Court Magistrates
Francis Bernard, Sheila Bedford, Kevin Devlin, James O’Brien,
Cateria McCabe, and Robert Stack as well as against Philadelphia
Municipal Court President Judge Patrick Dugan and the Sheriff of
Philadelphia County, Rochelle Bilal.1 All are being sued in
their official capacities. Plaintiff seeks a declaratory
judgment that two Pennsylvania court rules and a Philadelphia
Municipal Court Arraignment Court Magistrate rule, insofar as
1. Originally Merry Reed, a writer and reporter, was named as
a plaintiff. She has been dismissed from the action by
agreement of the parties. By stipulation, the parties have also
substituted a new Arraignment Court Magistrate and the
newly-elected Sheriff of Philadelphia County as defendants.
they prohibit plaintiff from making audio recordings of bail
hearings, violate its right of access to court proceedings under
the First Amendment to the United States Constitution. The
complaint also requests attorney’s fees and costs against the
Sheriff and “such further relief as may be just, lawful and
equitable.”2 The plaintiff does not seek damages from any of the
defendants.
Before the court are cross motions of the parties for
summary judgment under Rule 56 of the Federal Rules of Civil
Procedure.
I
Under Rule 56(a), summary judgment may be granted “if
the movant shows that there is no genuine dispute of material
fact and the movant is entitled to judgment as a matter of law.”
Here, the parties have stipulated to all the relevant facts. We
must simply decide whether any of the parties is entitled to
judgment as a matter of law.
II
The following are the relevant facts to which the
parties have stipulated.
2. The Sheriff also filed a cross-claim against the judicial
defendants for indemnity for any assessed attorney’s fees and
costs.
The six defendant Arraignment Court Magistrates3 are
appointed by the Philadelphia Municipal Court for four-year
terms to conduct bail hearings at preliminary arraignments,
among other duties. 42 Pa.C.S. § 1123(a)(5). They do not have
to be lawyers. See 42 Pa.C.S. § 3112. They sit on a rotating
basis in a courtroom in the basement of the Criminal Justice
Center in downtown Philadelphia and conduct each bail hearing
over a video link to each of the seven Philadelphia Divisional
Booking Centers where arrestees are processed. A magistrate is
available twenty-four hours a day, seven days a week, and
365 days a year. On average there are 30,000 bail hearings a
year or roughly 90 hearings per day in Philadelphia.
When an individual is arrested, he or she is taken to
one of the seven Divisional Booking Centers to be processed. A
police report is generated and is electronically transmitted to
the Philadelphia District Attorney’s Office for charging. The
report is also transmitted to the Pretrial Services Division of
the First Judicial District, which encompasses Philadelphia
County, to aid it in conducting an interview of the arrestee.
The Pretrial Services Division asks the arrestee about his or
her residence, employment, health, education, financial
situation, and other biographical details which it compiles into
3. The magistrates are sometimes referred to as Bail
Commissioners. 42 Pa.C.S. § 3111.
a report. It then submits the report to the magistrate through
the Preliminary Arraignment Reporting System (“PARS”). After
receipt of this report and approval of the charges against the
arrestee by the District Attorney’s Office, the magistrate holds
a preliminary arraignment where bail is determined. The
Pretrial Services Division report is available to the court, the
District Attorney’s office, and the arrestee’s representative
but not to the public.
The preliminary arraignment takes place on average
fifteen hours after the arrest. The name of the arrestee and
the case and its number is first made public at that time. The
prosecution, the defense counsel, and the arrestee all have an
opportunity to address and argue before the magistrate
concerning bail and answer any questions the magistrate may
pose. Typically, neither the assistant district attorney nor
the attorney for the arrestee submits any written argument. At
the conclusion of the hearing, the magistrate decides whether
pretrial release is appropriate and if so the amount and
conditions of bail. Rules 523 and 524 of the Pennsylvania Rules
of Criminal Procedure respectively set forth the criteria for
release on bail and the types of release. Each bail hearing
typically lasts less than four minutes on average. If either
party objects to the magistrate’s decision, a Municipal Court
judge is immediately available by telephone for a de novo
appeal. The audio-visual connection with the arrestee, however,
is terminated before any appeal.4
All preliminary arraignments are open to the public
and press. The courtroom has capacity for an audience of 65 and
contains a glass wall which separates the spectators from the
front of the courtroom. The proceedings are amplified by a
speaker system, and the audience can observe the visual link
showing the arrestee. While the public and press may observe
and take notes, the court rules in issue prohibit them from
making video or audio recordings. The Sheriff’s Office
maintains order in the courtroom and enforces the court rules at
the direction of the presiding magistrate.
There is no transcript of the preliminary arraignment
or of any immediate telephonic appeal to a Municipal Court
judge, and no court reporter is present for either. Although
the court makes audio recordings of these preliminary
arraignments, it does so to address technical issues such as the
quality of the sound and to enable the President Judge of the
Municipal Court to monitor the performance of the magistrates.
The recordings are not filed of record and are not used in
4. An arrestee may also obtain a further hearing in the
Municipal Court by filing a motion to challenge a bail
determination or to have the bail amount reduced or to ask to
participate in what is known as “Early Bail Review.” This
further hearing will take place within five days of the initial
bail hearing at the earliest.
making a bail determination in any case or in any subsequent
hearing or for any appeal. The recordings are not available to
the parties or the public and are of inferior quality and often
hard to hear.5 Such recordings are not made under the First
Judicial District Digital Recording Program from which official
court transcripts of other proceedings are prepared.
Counsel for the judicial defendants advised the court
at oral argument and plaintiff’s counsel does not dispute that
the public may obtain for a fee written transcripts of all
judicial proceedings that are the subject of the First Judicial
District Digital Recording Program. Copies of the underlying
recordings themselves, however, are not publicly available.
Following the preliminary arraignment, various court
documents related to it are filed of record. These documents
include the criminal complaint and a form which contains the
magistrate’s decision concerning bail. Copies are available at
twenty-five cents per page, but there is no charge simply to
view the documents. Docket sheets are also publicly accessible.
In addition, the Administrative Office of Pennsylvania Courts
makes available a bulk data report of case information for every
preliminary arraignment in the Municipal Court. The public may
5. Counsel for the judicial defendants, in response to a
question from the court, stated the facts in the second half of
this sentence. All counsel agreed to have the court accept
these facts as part of the record.
obtain electronic case data for a fee from the First Judicial
District.
On June 14, 2019, the Bail Fund emailed Philadelphia
Municipal Court President Judge Dugan requesting permission to
audio-record bail hearings. Judge Dugan replied that state
rules prohibited the granting of the request. Shortly after,
the Philadelphia Bail Fund instituted this action.
III
The court rules at issue in this case generally
operate to prohibit audio and video recordings of criminal
proceedings by members of the public.
Rule 112 of the Pennsylvania Rules of Criminal
Procedure provides6:
(C) Except as provided in paragraph (D),
the stenographic, mechanical, electronic
recording, or the recording using any
advanced communication technology, of any
judicial proceedings by anyone other than
the official court stenographer in a court
case, for any purpose, is prohibited.
(D) In a judicial proceeding before an
issuing authority, the issuing authority,
the attorney for the Commonwealth, the
affiant, or the defendant may cause a
recording to be made of the judicial
proceeding as an aid to the preparation of
the written record for subsequent use in a
6. The Pennsylvania Rules of Criminal Procedure are adopted by
the Supreme Court of Pennsylvania under the authority of the
Constitution of the Commonwealth of Pennsylvania. See
Pa. Const. art. V, § 10(c); Pa.R.Crim.P. 102.
case, but such recordings shall not be
publicly played or disseminated in any
manner unless in a court during a trial or
hearing.
Rule 1910 of the Pennsylvania Rules of Judicial
Administration provides in relevant part: “judges shall
prohibit broadcasting, televising, recording or taking
photographs in the courtroom and areas immediately adjacent
thereto during sessions of court or recesses between sessions,”
subject to limited exceptions not relevant here.” Pa.R.J.A.
No. 1910(B).7
The Philadelphia Municipal Court Arraignment Court
Magistrate rule 7.09 reads in relevant part: “[a]n Arraignment
Court Magistrate shall prohibit broadcasting, televising,
recording, or taking photographs in the Courtroom or the areas
immediately adjacent thereto during sessions or recesses between
sessions. . . .” Phila. M.C.R. Crim., A.C.M., Sec. 7.09.
IV
The plaintiff has brought this action under 42 U.S.C.
§ 1983 which provides:
Every person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or
7. The Pennsylvania Supreme Court recently ordered Rule
1910(B) amended to read “judges shall prohibit” rather than
“judges should prohibit” the recording of judicial proceedings.
See In re Amendment of Rule 1910 of Judicial Admin., No. 522
(Pa. Oct. 8, 2019). The amendment took effect on January 1,
2020. Id.
causes to be subjected any citizen of the
United States or other person within the
jurisdiction thereof to the deprivation of
any rights, privileges, or immunities
secured by the Constitution and laws, shall
be liable to the party injured in an action
at law, suit in equity, or other proper
proceeding for redress, except that in any
action brought against a judicial officer
for an act or omission taken in such
officer’s judicial capacity, injunctive
relief shall not be granted unless a
declaratory decree was violated or
declaratory relief was unavailable. . . .
The question before the court is whether the plaintiff
is entitled under the First Amendment to audio-record bail
hearings in the Philadelphia Municipal Court where the court
itself only makes inferior recordings for internal purposes and
does not make official recordings or transcripts of those
proceedings. Under Rule 115 of the Pennsylvania Rules of
Criminal Procedure, recordings of proceedings in open court are
not mandated until “after a defendant has been held for court,”
that is, until after a preliminary arraignment in the Municipal
Court. Pa.R.Crim.P. 115(A); see also Pa.R.Crim.P. 1012(A).
The First Amendment reads in relevant part: “Congress
shall make no law . . . abridging the freedom of speech, or of
the press . . .” This guarantee has been incorporated into the
due process clause of the Fourteenth Amendment and applies to
the states. Nat’l Inst. of Family and Life Advocates v.
Becerra, 138 S. Ct. 2361, 2371 (2018). It is now well-settled
that the First Amendment guarantees the right of public access
to criminal trials, including the right to listen and take notes
and to disseminate and publish what is observed. Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 575-80 (1980).
Underlying this right of access is “the common understanding
that a major purpose of the [First] Amendment was to protect the
free discussion of governmental affairs” and “to ensure that
this constitutionally protected ‘discussion of government
affairs’ is an informed one.” Globe Newspapers Co. v. Superior
Court for Norfolk Cnty., 457 U.S. 596, 604-05 (1982). Public
scrutiny also “fosters an appearance of fairness” and “permits
the public to participate in and serve as a check upon the
judicial process.” Id. at 606.
The right of public access, like many aspects of the
First Amendment, is not absolute. Id. at 606. However, any
denial of access must be narrowly tailored and be necessitated
by a compelling governmental interest. Id. at 607. It must
also be determined on a case-by-case basis. Id. at 608. As the
Supreme Court later stated in Press-Enterprise Co. v. Superior
Court of Cal., 478 U.S. 1, 9-10 (1986):
The presumption may be overcome only by an
overriding interest based on findings that
closure is essential to preserve higher
values and is narrowly tailored to serve
that interest. The interest is to be
articulated along with findings specific
enough that a reviewing court can determine
whether the closure order was properly
entered.
In stressing the importance of public access, the Supreme Court
had declared that the blanket closure of courtrooms even for the
testimony of minor victims of sexual offenses violates the First
Amendment. Globe Newspapers Co., 457 U.S. at 602-11.
In United States v. Simone, 14 F.3d 833, 839 (3d Cir.
1994), our Court of Appeals delineated six societal interests in
support of open courtrooms:
[P]romotion of informed discussion of
governmental affairs by providing the public
with the more complete understanding of the
judicial system; promotion of the public
perception of fairness which can be achieved
only by permitting full public view of the
proceedings; providing a significant
community therapeutic value as an outlet for
community concern, hostility and emotion;
serving as a check on corrupt practices by
exposing the judicial process to public
scrutiny; enhancement of the performance of
all involved; and discouragement of perjury.
The Supreme Court has extended that First Amendment
right of public access beyond the criminal trial itself. It has
held that the First Amendment also applies to jury selection and
to preliminary hearings. Press-Enterprise Co. v. Superior Court
of Cal., 464 U.S. 501, 513 (1984); Press-Enterprise Co., 478
U.S. at 13. Our Court of Appeals has also concluded that
post-trial hearings to investigate jury misconduct must also be
open to the public under the First Amendment. Simone, 14 F.3d
at 840.
While the parties have not cited any case specifically
dealing with bail hearings, we have no hesitancy in determining
that the right of public access encompasses this significant
aspect of the judicial process. The Eighth Amendment to the
Constitution specifically guarantees that “Excessive bail shall
not be required.” See Timbs v. Indiana, 139 S. Ct. 682, 688
(2019). Regardless of what the historical practice of openness
may have been, the societal interests outlined by the Supreme
Court and later by our Court of Appeals in Simone all lead to
the inexorable conclusion that the First Amendment protects the
right to attend and report on bail proceedings.
In addition to the constitutional right to attend
criminal judicial proceedings, the courts have dealt with public
access to judicial records. There is a common law right of the
public “to inspect and copy . . . judicial records and
documents” in criminal as well as civil cases. In re Avandia
Mktg., Sales Practices and Prods. Liab. Litig., 924 F.3d 662,
672 (3d Cir. 2019). This right long antedates the Constitution
and, at least in the criminal context, has now taken on
constitutional dimensions. In Press-Enterprise Co., for
example, the Supreme Court elevated to First Amendment status
the right of the public to have access to a copy of the
transcript of a preliminary hearing. 478 U.S. at 13.
In United States v. Antar, 38 F.3d 1348 (3d Cir.
1994), our Court of Appeals concluded that the district court
erred in initially sealing the transcript of jury voir dire and
putting restrictions on its use when later unsealed, including
limiting use of juror information. The Court of Appeals made
clear that access to the transcripts of a judicial proceeding is
as critical under the First Amendment as is the right to be
present to hear and observe what occurs in the courtroom. The
Court emphasized:
True public access to a proceeding means
access to knowledge of what occurred there.
It is served not only by witnessing a
proceeding firsthand, but also by learning
about it through a secondary source. . . .
Access to the documentation of an open
proceeding, then, facilitates the openness
of the proceeding itself by assuring the
broadest dissemination. It would be an odd
result indeed were we to declare that our
courtrooms must be open, but that
transcripts of the proceedings occurring
there may be closed, for what exists of the
right of access if it extends only to those
who can squeeze through the door?
Id. at 1360.
The Court grounded its analysis on the First
Amendment: “This strong presumption of access to records,
including transcripts, provides independent support for the
conclusion that the First Amendment right of access must extend
equally to transcripts as to live proceedings.” Id. at 1361.
The right to attend and report on trials and to have
access to judicial records, albeit not absolute, has now been
firmly established as a First Amendment right. The Supreme
Court has also held in Chandler v. Florida, 449 U.S. 560, 583
(1981), that the Constitution does not prohibit radio,
television or photographic coverage of a criminal trial. While
the press is not constitutionally prohibited from recording and
broadcasting a criminal trial, it is also not constitutionally
entitled to do so. The Court wrote in Nixon v. Warner Commc’ns,
Inc., 435 U.S. 589, 610 (1978) that the press has “no
constitutional right to have such testimony [of live witnesses]
recorded and broadcast.” Likewise, a number of appellate
decisions in other circuits have denied any First Amendment
right to audio-record, videotape or televise court proceedings.
See, e.g., Conway v. United States, 852 F.2d 187, 188 (6th Cir.
1988); United States v. Yonkers Bd. of Educ., 747 F.2d 111, 113-
14 (2d Cir. 1984); United States v. Hastings, 695 F.2d 1278,
1284 (11th Cir. 1983).
The plaintiffs rely on a more recent decision,
Whiteland Woods, LP v. Twp. of West Whiteland, 193 F.3d 177
(3d Cir. 1999), a case which did not involve public access to
criminal proceedings. There the plaintiff claimed a
First Amendment right to videotape a meeting of a Township
Planning Commission. The Court of Appeals framed the issue
before it as follows:
The primary issue on appeal is whether there
is a federal constitutional right to
videotape public meetings of a township
planning commission when other effective
means of recording the proceedings are
available.
Id. at 180.
The Court held that under the circumstances no
First Amendment right to videotape existed. Id. at 185. It
noted that interested parties and the public were allowed to
take notes, use audio recording devices, and even engage
stenographers. The Court observed:
Nothing in the record suggests videotaping
would have provided a uniquely valuable
source of information about Planning
Commission meetings. The First Amendment
does not require states to accommodate every
potential method of recording its
proceedings, particularly where the public
is granted alternative means of compiling a
comprehensive record.
Id. at 183.
In affirming the district court’s order granting
summary judgment in favor of the Township, the Court concluded,
“. . . plaintiff has failed to demonstrate an essential nexus
between the right of access and a right to videotape the
Planning Commission proceedings. Id. at 183-84.
The most recent pronouncement of our Court of Appeals
on the First Amendment right to record a public event is in
Fields v. City of Phila., 862 F.3d 353 (3d Cir. 2017). This
case like Whiteland Woods did not involve access to a court
proceeding. See id. at 355. There plaintiffs brought an action
against the City of Philadelphia and certain police officers for
retaliation for photographing and recording police activity in
arresting protestors in public places. Id. The Court held that
plaintiffs had a First Amendment right to do so. Id. at 360.
It observed, “To record what there is the right for the eye to
see or the ear to hear corroborates or lays aside subjective
impression for objective facts.” Id. at 359. The Court
continued, “We do not say that all recording is protected or
desirable. It is subject to reasonable time, place, and manner
restrictions. . . . But in public places these restrictions are
restrained.” Id. at 360.
The cases that have considered the issue have all held
that the First Amendment does not guarantee the public the right
to record judicial proceedings. These holdings, in our view, do
not end the analysis because the facts here are significantly
different. In none of those cases does it appear that the court
of first instance had a policy or custom not to make official
recordings or transcripts of those proceedings. Indeed, in
several of those cases, the decision specifically referenced the
fact that either a transcript was available or the court had an
official recording system.
In Nixon, the press sought copies of the actual Nixon
tapes featured in a criminal trial of the ex-President’s former
advisors with the intent of broadcasting them. 435 U.S. at
591-92. While denying the request because of the special
provisions of the Presidential Recordings Act and stating that
the press had no constitutional right to record and broadcast
anything, the Court emphasized that the press already had copies
of the trial transcripts which included the tapes that were
being sought. Id. at 610.
In Yonkers Bd. of Educ., the Court of Appeals for the
Second Circuit upheld a federal district court rule banning the
public use of recording devices in the courtroom. 747 F.2d at
113-14. Yet, in doing so, it touched upon the existence of an
official reporting system as one of the reasons not to allow the
public to make recordings. Id. at 114. The Second Circuit
opined that “indiscriminate recording of trial proceedings might
undermine the official court reporter system.” Id. Of course,
in this pending case there are no transcripts and no official
court reporter system to undermine.
The precedents in this circuit have emphasized how
important the objective record of an event can be beyond what
one may see or hear whether in a court proceeding or elsewhere.
As our Court of Appeals stated in Antar, “Access to the
documentation of an open proceeding . . . facilitates the
openness of the proceeding itself by assuring the broadest
dissemination. It would be an odd result indeed were we to
declare that our courtrooms must be opened, but that transcripts
of the proceedings occurring there may be closed. . . .”
38 F.3d at 1360.
In Whiteland Woods, the Court of Appeals denied the
right to videotape a Township Planning Commission meeting.
193 F.3d at 183-84. In doing so, it explained that “The First
Amendment does not require states to accommodate every potential
method of recording its proceedings, particularly where the
public is granted alternative means of compiling a comprehensive
record.” Id. (emphasis added). And recently in Fields,
involving the recording of public police activity, the Court
asserted, “To record what there is the right for the eye to see
or the ear to hear corroborates or lays aside subjective
impression for objective facts.” 862 F.3d at 359. These three
cases all emphasized the significance of a recording of events
as well as the significance of court records in any First
Amendment analysis.
We recognize that First Amendment decisions which
involved other kinds of public spaces are not necessarily
applicable to judicial proceedings. Courtrooms, whether they
are deemed public or non-public fora, are different than other
places such as street corners, parks, subways, stadiums,
theaters, and even the halls of non-judicial governmental
bodies. Courts are fact-finding institutions which after due
deliberation adjudicate constitutional and other significant
substantive and procedural rights of litigants. Fairness and
impartiality are paramount. There must be decorum, dignity,
order and even solemnity in the judicial process. The hustle
and bustle and cacophony of the street or marketplace have no
place in the courtroom. The behavior and actions of
participants and spectators attending a judicial proceeding are
properly subject to unique constraints that do not apply
elsewhere.
There also can be no denying that bail hearings are a
significant part of the criminal process. Indeed, as already
noted, there is a constitutional dimension to them. The Eighth
Amendment provides that “[e]xcessive bail shall not be
required. . . .” Likewise, the Constitution of the Commonwealth
declares that “[e]xcessive bail shall not be required. . . .”
Pa. Const. art. I, § 13.8 What and how the defendant magistrates
8. Article I § 14 of the Pennsylvania Constitution further
provides:
All prisoners shall be bailable by
sufficient sureties, unless for capital
offenses or for offenses for which the
rule on bail is no small matter even though a bail hearing
usually lasts less than four minutes on average. Bail of course
may be denied to protect the public or the arrestee and to
prevent pretrial flight. At other times, release will be
granted and in those cases the magistrate will be required to
decide appropriate monetary and non-monetary conditions of
release pursuant to the detailed state procedural rules.
See Pa.R.Crim.P. 523-28.
The decisions of the magistrates will affect, in many
instances, whether the arrestees can continue to work and
support their families pending trial. The time period between
the bail hearing and the trial is often many months if not
longer. Improperly setting bail beyond the financial reach of
an impecunious individual or otherwise erring in a decision can
result in wrongful pretrial detention, with particularly
unfortunate consequences if the charges are later dropped or an
arrestee is found not guilty. We, of course, do not intimate
that the magistrates here are making improper rulings, either
under Pennsylvania law or the United States Constitution. The
salient point is that meaningful public access to bail hearings
maximum sentence is life imprisonment or
unless no condition or combination of
conditions other than imprisonment will
reasonably assure the safety of any person
and the community when the proof is evident
or presumption great . . . .
is imperative. The rulings concerning bail and the process by
which they are made, no matter how quickly accomplished, have
federal and state constitutional ramifications. The rulings and
the process have serious consequences for the arrestee and
implicate vital societal interests. See Simone, 14 F.3d at 839.
The defendants justify the ban on audio recordings as
needed to protect the privacy of the arrestee and his or her
right to a fair trial. The ban, according to the defendants,
allows arrestees to speak more frankly at the bail hearing
concerning their mental health, drug issues and other personal
matters. We find this argument unconvincing. The bail hearings
are presently open to the press and public, and anyone can
observe and take notes about what is occurring. Thus, anything
said at the hearing is subject to wider dissemination and can
appear in the newspapers, on television, or on social media even
if no audio recordings by the public are allowed. Further,
defendants have not articulated why the privacy of the arrestee
at bail hearings is any more compelling than the privacy of an
arrestee at later stages of the criminal process when judicial
recordings are made and transcripts are produced.
We observe that Rule 112(D) of the Pennsylvania Rules
of Criminal Procedure allows an attorney for the Commonwealth,
for an affiant, or for the defendant to make recordings to
prepare a record although it prohibits any dissemination to the
public of such recordings. This exception allowing recordings,
to say nothing about the existence of the Philadelphia Municipal
Court’s own inferior recordings for internal purposes, undercuts
the defendants’ argument about the arrestee’s fear of speaking
frankly if a recording is being made.
Public access to bail hearings is clearly guaranteed
under the First Amendment. Official audio recordings or
transcripts of such hearings are not required under Rule 115 of
the Pennsylvania Rules of Criminal Procedure and in fact such
recordings are not being made. If the hearings were officially
recorded, the public would have a constitutional right of access
to the recordings or to the transcripts absent compelling
circumstances not demonstrated here. In the cases which have
denied the public the constitutional right to record judicial
proceedings, there has been no hint that there would be no
official record for public scrutiny.9
Under the narrow circumstances present here, we must
balance the ability of the court to constrain the behavior and
actions of those in the courtroom against the public right of
meaningful access. In deciding the matter, we must take into
9. We note, for example, that all bail hearings before the
Magistrate Judges in the United States District Court for the
Eastern District of Pennsylvania are officially recorded and the
recordings and transcripts are available for purchase by the
public.
account the importance our Court of Appeals has placed on the
official or objective record. There are over 90 bail hearings a
day in Philadelphia and each usually lasts less than four
minutes on average. Absent an official record other than a
ruling set forth on a form, attendance and notes alone are
insufficient to comprehend the full import of these numerous and
rapid hearings. While an arrestee has a right of immediate
appeal de novo to a Municipal Court judge, the appeal is
conducted by telephone with no video link to the arrestee and no
recording of that proceeding. The public has less access to the
de novo appeal than to the hearing before the magistrate.
The scales tip in favor of the public’s right to
audio-record in a non-disruptive and quiet manner the
preliminary arraignment and the determination of bail where the
court has a policy or custom not to make official audio
recordings or transcripts of its own. There is here an
“essential nexus between the right of access” and the right to
audio-record the proceedings. See Whiteland Woods, 193 F.3d at
183-84. The right to attend and take notes and then to obtain
statistical data about bail hearings after the fact is not
adequate under the circumstances presented to vindicate the
public’s First Amendment right of access to the courts. To
reiterate what our Court of Appeals wrote in Antar:
It would be an odd result indeed were we to
declare that our courtrooms must be open,
but that transcripts of the proceedings
occurring there may be closed, for what
exists of the right of access if it extends
only to those who can squeeze through the
door.
38 F.3d at 1360.
V
The court will grant the motion of plaintiff for
summary judgment on its constitutional claim and will deny the
cross-motions of all defendants for summary judgment on that
claim. The court declares that Rule 112(C) of the Pennsylvania
Rules of Criminal Procedure, Rule 1910 of the Pennsylvania Rules
of Judicial Administration, and the Philadelphia Municipal Court
Arraignment Court Magistrate rule 7.09 are unconstitutional
under the First Amendment insofar as they prohibit the public to
audio-record bail hearings. Our holding is limited to the
present circumstances in which the Philadelphia Municipal Court
does not make available to the public either its own official
audio recordings or transcripts of the bail hearings of the same
type and quality and in the same manner that are made available
for other judicial proceedings.
The law in our view is well established as recited
above that plaintiff is not entitled under the First Amendment
to make its own audio recordings if the public can obtain
official audio recordings or transcripts from the Philadelphia
Municipal Court. Thus, the validity of the court rules in
question may be saved by making such audio recordings or
transcripts publicly available. No state law or rule called to
our attention prevents the court from taking this step.
If after 45 days from the date of the order entered in
this case the Philadelphia Municipal Court has not made official
judicial recordings or transcripts of bail hearings available to
the public as set forth above, the plaintiff may then make its
own audio recordings of said hearings by use of silent hand-held
recorders. The court will continue to maintain jurisdiction of
this action and will require defendants to notify the court
whether such recordings or transcripts are now obtainable no
later than 45 days after the entry of the order herein.
VI
Finally, the Sheriff of Philadelphia County, who is
being sued in her official capacity, makes an additional
argument that she cannot be held liable for attorney’s fees and
costs even if the plaintiff prevails on its constitutional claim
under § 1983. Title 42 U.S.C. § 1988(b) provides in relevant
part:
In any action or proceedings to enforce a
provision of . . . § 1983 . . . the court,
in its discretion, may allow the prevailing
party, other than the United States, a
reasonable attorney’s fee as part of the
costs, except that in any action brought
against a judicial officer for an act or
omission taken in such officer’s judicial
capacity such officer shall not be held
liable for any costs, including attorney’s
fees, unless such action was clearly in
excess of such officer’s jurisdiction.
Plaintiff does not seek attorney’s fees and costs against the
Arraignment Court Magistrates or the Philadelphia Municipal
Court President Judge. It has not presented any evidence that
these defendant judicial officers have acted “clearly in excess
of . . .[their] jurisdiction.”
The Sheriff, as noted above, has been sued in her
official capacity and is acting as an agent of the judicial
officials who have promulgated and have directed her to enforce
the state and local court rules against audio recordings by the
public in the courtroom. See Kentucky v. Graham, 473 U.S. 159,
163-66 (1985). If the judicial defendants cannot be liable for
attorney’s fees and costs, surely attorney’s fees and costs
cannot be awarded against the Sheriff, who is merely acting at
their behest without discretion to do otherwise.
Accordingly, the Sheriff is entitled to summary
judgment in her favor to the extent plaintiff seeks attorney’s
fees and costs against her in her official capacity. The
Sheriff’s cross-claim against the judicial defendants for
indemnity for attorney’s fees and costs will be denied as moot.