Richard Fields v. City of Philadelphia

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 16-1650

________________

RICHARD FIELDS,

Appellant

v.

CITY OF PHILADELPHIA; SISCA,

POLICE OFFICER, BADGE NO. 9547;

JOE DOE, AN UNKNOWN PHILADELPHIA

POLICE OFFICER

________________

No. 16-1651

________________

AMANDA GERACI,

Appellant

v.

CITY OF PHILADELPHIA; DAWN BROWN,

POLICE OFFICER, BADGE NO. 2454;

TERRA M. BARROW, POLICE OFFICER,

BADGE NO. 1147; NIKKI L. JONES,

POLICE OFFICER, BADGE NO. 2549;

RHONDA SMITH, POLICE OFFICER,

BADGE NO. 1373

________________

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action Nos. 2-14-cv-04424/05264)

District Judge: Honorable Mark A. Kearney

________________

Argued May 9, 2017

Before: AMBRO, RESTREPO,

and NYGAARD, Circuit Judges

(Opinion filed: July 7, 2017)

Jonathan H. Feinberg, Esquire

Kairys Rudovsky Messing & Reinberg

718 Arch Street, Suite 501 South

Philadelphia, PA 19106

John J. Grogan, Esquire

Peter E. Leckman, Esquire

Langer Grogan & Diver

1717 Arch Street, Suite 4130

Philadelphia, PA 19103

Seth Kreimer, Esquire

University of Pennsylvania School of Law

3400 Chestnut Street

Philadelphia, PA 19104

2

Mary Catherine Roper, Esquire

Molly M. Tack-Hopper, Esquire (Argued)

American Civil Liberties Union of Pennsylvania

P.O. Box 60173

Philadelphia, PA 19106

Counsel for Appellants

Craig R. Gottlieb, Esquire (Argued)

City of Philadelphia Law Department

1515 Arch Street, 17th Floor

One Parkway

Philadelphia, PA 19102

Counsel for Appellees

Dorothy A. Hickok, Esquire

Alfred W. Putnam, Jr., Esquire

Mark D. Taticchi, Esquire

Drinker Biddle & Reath

18th & Cherry Streets

One Logan Square, Suite 2000

Philadelphia, PA 19103

Ilya Shapiro, Esquire

Cato Institute

1000 Massachusetts Ave., N.W.

Washington, DC 20001

Counsel for Amicus Appellant

Cato Institute

Eli Segal, Esquire

3

Pepper Hamilton

217 Ryers Avenue

Philadelphia, PA 19103

Counsel for Amicus Appellant

Society for Photographic Education

Sharon M. McGowan, Esquire

April J. Anderson, Esquire

Tovah R. Calderon, Esquire

United States Department of Justice

Civil Rights Division, Appellate Section, RFK 3724

P.O. Box 14403

Ben Franklin Station

Washington, DC 20044

Counsel for Amicus Appellant

United State of America

Bruce D. Brown, Esquire

Gregg P. Leslie, Esquire

The Reporters Committee for Freedom of the Press

1156 15th Street, N.W., Suite 1250

Washington, DC 20005

Counsel for Amicus Appellant

Reporters Committee for Freedom of the Press and

31 Media Organizations

Sophia S. Cope, Esquire

Adam Schwartz, Esquire

Electronic Frontier Foundation

815 Eddy Street

4

San Francisco, CA 94109

Counsel for Amicus Appellant

Electronic Frontier Foundation

Robert J. LaRocca, Esquire

Kohn Swift & Graf

One South Broad Street, Suite 2100

Philadelphia, PA 19107

Counsel for Amicus Appellant

First Amendment Law Professors

Patrick G. Geckle, Esquire

1500 John F. Kennedy Boulevard

Two Penn Center Plaza, Suite 1850

Philadelphia, PA 19102

John Burton, Esquire

The Marine Building

128 North Fair Oaks Avenue

Pasadena, CA 91103

David Milton, Esquire

Law Offices of Howard Friedman, PC

90 Canal Street, Fifth Floor

Boston, MA 02114

Counsel for Amicus Appellant

National Police Accountability Project

5

Jason P. Gosselin, Esquire

Drinker Biddle & Reath

18th & Cherry Streets

One Logan Square, Suite 2000

Philadelphia, PA 19103

John W. Whitehead, Esquire

Douglas R. McKusick, Esquire

Christopher F. Moriarty, Esquire

The Rutherford Institute

P.O. Box 7482

Charlottesville, VA 22906

Counsel for Amicus Appellant

Rutherford Institute

________________

OPINION OF THE COURT

________________

AMBRO, Circuit Judge

In 1991 George Holliday recorded video of the Los

Angeles Police Department officers beating Rodney King and

submitted it to the local news. Filming police on the job was

rare then but common now. With advances in technology and

the widespread ownership of smartphones, “civilian recording

of police officers is ubiquitous.” Jocelyn Simonson,

Copwatching, 104 Cal. L. Rev. 391, 408 (2016); see Seth F.

Kreimer, Pervasive Image Capture and the First Amendment:

Memory, Discourse, and the Right to Record, 159 U. Pa. L.

Rev. 335, 337 (2011). These recordings have both exposed

police misconduct and exonerated officers from errant

6

charges. However, despite the growing frequency of private

citizens recording police activity and its importance to all

involved, some jurisdictions have attempted to regulate the

extent of this practice. Individuals making recordings have

also faced retaliation by officers, such as arrests on false

criminal charges and even violence.

This case involves retaliation. Richard Fields and

Amanda Geraci attempted to record Philadelphia police

officers carrying out official duties in public and were

retaliated against even though the Philadelphia Police

Department’s official policies recognized that “[p]rivate

individuals have a First Amendment right to observe and

record police officers engaged in the public discharge of their

duties.” J.A. 1187. No party contested the existence of the

First Amendment right. Yet the District Court concluded that

neither Plaintiff had engaged in First Amendment activity

because the conduct—the act of recording—was not

sufficiently expressive. However, this case is not about

whether Plaintiffs expressed themselves through conduct. It

is whether they have a First Amendment right of access to

information about how our public servants operate in public.

Every Circuit Court of Appeals to address this issue

(First, Fifth, Seventh, Ninth, and Eleventh) has held that there

is a First Amendment right to record police activity in public.

See Turner v. Lieutenant Driver, 848 F.3d 678 (5th Cir.

2017); Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014); Am. Civil

Liberties Union of Ill. v. Alvarez, 679 F.3d 583 (7th Cir.

2012); Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); Smith v.

City of Cumming, 212 F.3d 1332 (11th Cir. 2000); Fordyce v.

City of Seattle, 55 F.3d 436 (9th Cir. 1995). Today we join

this growing consensus. Simply put, the First Amendment

protects the act of photographing, filming, or otherwise

recording police officers conducting their official duties in

public.

7

I. BACKGROUND

In September 2012, Amanda Geraci, a member of the

police watchdog group “Up Against the Law,” attended an

anti-fracking protest at the Philadelphia Convention Center.

She carried her camera and wore a pink bandana that

identified her as a legal observer. About a half hour into the

protest, the police acted to arrest a protestor. Geraci moved to

a better vantage point to record the arrest and did so without

interfering with the police. An officer abruptly pushed Geraci

and pinned her against a pillar for one to three minutes, which

prevented her from observing or recording the arrest. Geraci

was not arrested or cited.

One evening in September 2013, Richard Fields, a

sophomore at Temple University, was on a public sidewalk

where he observed a number of police officers breaking up a

house party across the street. The nearest officer was 15 feet

away from him. Using his iPhone, he took a photograph of

the scene. An officer noticed Fields taking the photo and

asked him whether he “like[d] taking pictures of grown men”

and ordered him to leave. J.A. 8. Fields refused, so the

officer arrested him, confiscated his phone, and detained him.

The officer searched Fields’ phone and opened several videos

and other photos. The officer then released Fields and issued

him a citation for “Obstructing Highway and Other Public

Passages.” These charges were withdrawn when the officer

did not appear at the court hearing.

Fields and Geraci brought 42 U.S.C. § 1983 claims

against the City of Philadelphia and certain police officers.

They alleged that the officers illegally retaliated against them

for exercising their First Amendment right to record public

police activity and violated their Fourth Amendment right to

be free from an unreasonable search or seizure.

8

They also pointed out that the City’s Police

Department’s official policies recognized their First

Amendment right. In 2011 the Department published a

memorandum advising officers not to interfere with a private

citizen’s recording of police activity because it was protected

by the First Amendment. In 2012 it published an official

directive reiterating that this right existed. Both the

memorandum and directive were read to police officers

during roll call for three straight days. And in 2014, after the

events in our case and the occurrence of other similar

incidents, the Department instituted a formal training program

to ensure that officers ceased retaliating against bystanders

who recorded their activities.

The District Court nonetheless granted summary

judgment in favor of Defendants on the First Amendment

claims. They did not argue against the existence of a First

Amendment right, but rather contended that the individual

officers were entitled to qualified immunity and that the City

could not be vicariously liable for the officers’ acts. Yet the

District Court on its own decided that Plaintiffs’ activities

were not protected by the First Amendment because they

presented no evidence that their “conduct may be construed

as expression of a belief or criticism of police activity.”

Fields v. City of Philadelphia, 166 F. Supp. 3d 528, 537 (E.D.

Pa. 2016). When confronted by the police, Plaintiffs did not

express their reasons for recording. Their later deposition

testimony showed that Geraci simply wanted to observe and

Fields wanted to take a picture of an “interesting” and “cool”

scene. Id. at 539. In addition, neither testified of having an

intent to share his or her photos or videos. Id. The District

Court thus concluded that, “[a]bsent any authority from the

Supreme Court or our Court of Appeals, we decline to create

a new First Amendment right for citizens to photograph

officers when they have no expressive purpose such as

challenging police actions.” Id. at 542.

9

Because of this ruling, the District Court did not reach

the issues of qualified immunity or municipal liability.

However, it allowed the Fourth Amendment claims to go to

trial. Id. (“The citizens are not without remedy because once

the police officer takes your phone, alters your technology,

arrests you or applies excessive force, we proceed to trial on

the Fourth Amendment claims.”). By stipulation, Plaintiffs

dismissed their Fourth Amendment claims so that they could

immediately appeal the First Amendment ruling.

II. JURISDICTION AND STANDARDS

The District Court had subject matter jurisdiction over

these federal civil rights claims under 28 U.S.C. §§ 1331 &

1343, and we have jurisdiction under 28 U.S.C. § 1291. We

exercise plenary review over the District Court’s grant of

summary judgment. Melrose, Inc. v. City of Pittsburgh, 613

F.3d 380, 387 (3d Cir. 2010). It “is appropriate only where,

drawing all reasonable inferences in favor of the nonmoving

party, there is no genuine issue as to any material fact and . . .

the moving party is entitled to judgment as a matter of law.”

Id. (alteration in original and citation omitted). Because this

is a First Amendment case, we must also “engage in a

searching, independent factual review of the full record.”

Am. Civil Liberties Union v. Mukasey, 534 F.3d 181, 186 (3d

Cir. 2008) (citations omitted).

III. ORDER OF ANALYSIS

Defendants ask us to avoid ruling on the First

Amendment issue. Instead, they want us to hold that,

regardless of the right’s existence, the officers are entitled to

qualified immunity and the City cannot be vicariously liable

for the officers’ acts. We reject this invitation to take the easy

way out. Because this First Amendment issue is of great

importance and the recording of police activity is a

10

widespread, common practice, we deal with it before

addressing, if needed, defenses to liability.

In Saucier v. Katz, the Supreme Court held that courts

must determine whether a constitutional right existed before

deciding if it had been “clearly established” such that

defendants would not be entitled to qualified immunity. 533

U.S. 194, 200-01 (2001). Less than a decade later, however,

the Court reversed course in Pearson v. Callahan, holding

that courts instead have the discretion to choose to address

immunity first and bypass the substantive constitutional issue.

555 U.S. 223, 236 (2009). We have not ruled on the First

Amendment right, instead merely holding that at the time of

our rulings the claimed right was not clearly established.

Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010);

True Blue Auctions v. Foster, 528 F. App’x 190 (3d Cir.

2013).

In the years since, First Amendment issues from the

recording of police activity recur, and they deal directly with

constitutional doctrine. With technological progress and the

ubiquity of smartphone ownership—especially in the years

since our Kelly decision—we are now in an age where the

public can record our public officials’ conduct and easily

distribute that recording widely. This increase in the

observation, recording, and sharing of police activity has

contributed greatly to our national discussion of proper

policing. Consequently, police departments nationwide, often

with input from the U.S. Department of Justice, are

developing polices addressing precisely these issues, and our

opinion can assist in their efforts to comply with the

Constitution. Moreover, in the case before us the

constitutional question is not “so factbound that [our]

decision [will] provide[] little guidance for future cases.”

Pearson, 555 U.S. at 237. All we need to decide is whether

the First Amendment protects the act of recording police

11

officers carrying out official duties in public places. We also

have excellent briefing on appeal, including counsel for the

parties and eight amici, including the U.S. Department of

Justice, the Cato Institute, well-known First Amendment law

professors, and some of the largest news organizations in the

country. We therefore address the First Amendment question

before moving to the defenses.

IV. THE FIRST AMENDMENT RIGHT TO RECORD

The District Court concluded that Plaintiffs engaged in

conduct only (the act of making a recording) as opposed to

expressive conduct (using the recording to criticize the police

or otherwise comment on officers’ actions). It did so by

analogy, applying the “expressive conduct” test used to

address symbolic speech: “Conduct is protected by the First

Amendment when the nature of the activity, combined with

the factual context and environment in which it was

undertaken, shows that the activity was sufficiently imbued

with elements of communication to fall within the First

Amendment’s scope.” Fields, 166 F. Supp. 3d at 534 & n.34

(quoting Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309

F.3d 144, 158 (3d Cir. 2002)).

We disagree on various fronts. Foremost is that the

District Court focused on whether Plaintiffs had an expressive

intent, such as a desire to disseminate the recordings, or to use

them to criticize the police, at the moment when they recorded

or attempted to record police activity. See id. at 534-35. This

reasoning ignores that the value of the recordings may not be

immediately obvious, and only after review of them does

their worth become apparent. The First Amendment protects

actual photos, videos, and recordings, see Brown v. Entm’t

Merchants Ass’n, 564 U.S. 786, 790 (2011), and for this

protection to have meaning the Amendment must also protect

the act of creating that material. There is no practical

12

difference between allowing police to prevent people from

taking recordings and actually banning the possession or

distribution of them. See Alvarez, 679 F.3d at 596

(“Restricting the use of an audio or audiovisual recording

device suppresses speech just as effectively as restricting the

dissemination of the resulting recording.”); see also Cato

Institute Amicus Br. 7 (“[B]oth precedent and first principles

demonstrate that the First Amendment protects the process of

capturing inputs that may yield expression, not just the final

act of expression itself”); Kreimer, 159 U. Pa. L. Rev. at 366

(“[T]he threat of arrest remains a potent deterrent to

spontaneous photographers who have no deep commitment to

capturing any particular image.”). As illustrated here,

because the officers stopped Ms. Geraci from recording the

arrest of the protestor, she never had the opportunity to decide

to put any recording to expressive use.

Plaintiffs and some amici argue that the act of

recording is “inherently expressive conduct,” like painting,

writing a diary, dancing, or marching in a parade. See, e.g.,

First Amendment Law Professors Amicus Br. 8 (“If writing in

an undistributed diary is speech, making an undistributed

recording can be characterized as speech as well.”); Society

for Photographic Education Amicus Br. 2 (“Making a

photograph merits First Amendment protection because it is

artistic expression just the same as painting a landscape,

sketching a street scene, or sculpting a statue.”); Tenafly Eruv

Ass’n, 309 F.3d at 160 (“‘Parades are thus a form of

expression, not just motion . . . .’”) (quoting Hurley v. Irish-

American Gay, Lesbian and Bisexual Grp. of Bos., 515 U.S.

557, 568 (1995)). Regardless of the merits of these

arguments, our case is not about people attempting to create

art with police as their subjects. It is about recording police

officers performing their official duties.

13

The First Amendment protects the public’s right of

access to information about their officials’ public activities.

It “goes beyond protection of the press and the self-

expression of individuals to prohibit government from

limiting the stock of information from which members of the

public may draw.” First Nat’l. Bank of Bos. v. Bellotti, 435

U.S. 765, 783 (1978). Access to information regarding public

police activity is particularly important because it leads to

citizen discourse on public issues, “the highest rung of the

hierarchy of First Amendment values, and is entitled to

special protection.” Snyder v. Phelps, 562 U.S. 443, 452

(2011) (quoting Connick v. Myers, 461 U.S. 138, 145 (1983));

Garrison v. Louisiana, 379 U.S. 64, 77 (1964) (recognizing

the “paramount public interest in a free flow of information to

the people concerning public officials, their servants”). That

information is the wellspring of our debates; if the latter are to

be “‘uninhibited, robust, and wide-open,’” Snyder, 562 U.S.

at 452 (quoting N. Y. Times Co. v. Sullivan, 376 U.S. 254, 270

(1964)), the more credible the information the more credible

are the debates.

To record what there is the right for the eye to see or

the ear to hear corroborates or lays aside subjective

impressions for objective facts. Hence to record is to see and

hear more accurately. Recordings also facilitate discussion

because of the ease in which they can be widely distributed

via different forms of media. Accordingly, recording police

activity in public falls squarely within the First Amendment

right of access to information. As no doubt the press has this

right, so does the public. See PG Publ’g. Co. v. Aichele, 705

F.3d 91, 99 (3d Cir. 2013); Branzburg v. Hayes, 408 U.S.

665, 684 (1972).

Bystander videos provide different perspectives than

police and dashboard cameras, portraying circumstances and

surroundings that police videos often do not capture. Civilian

14

video also fills the gaps created when police choose not to

record video or withhold their footage from the public. See

Nat’l Police Accountability Project Amicus Br. 7 (noting that

“[a] recent survey of 50 major police departments’ policies on

body cameras revealed that many policies either failed to

make clear when officers must turn on their body cameras,

gave officers too much discretion when to record, or failed to

require explanations when officers did not record”) (citation

omitted).

The public’s creation of this content also complements

the role of the news media. Indeed, citizens’ gathering and

disseminating “newsworthy information [occur] with an ease

that rivals that of the traditional news media.” 2012 U.S.

D.O.J. Letter to Baltimore Police Department; J.A. 1684. See

also Glik, 655 F.3d at 78 (“The proliferation of electronic

devices with video-recording capability means that many of

our images of current events come from bystanders with a

ready cell phone or digital camera rather than a traditional

film crew, and news stories are now just as likely to be

broken by a blogger at her computer as a reporter at a major

newspaper.”). In addition to complementing the role of the

traditional press, private recordings have improved

professional reporting, as “video content generated by

witnesses and bystanders has become a common component

of news programming.” The Reporters Committee for

Freedom of the Press and 31 Media Organizations Amicus Br.

11; see also id. at 2 (“Today, the first source of information

from the scene of a newsworthy event is frequently an

ordinary citizen with a smart phone.”). And the inclusion of

“bystander video enriches the stories journalists tell, routinely

adding a distinct, first-person perspective to news coverage.”

Id. at 12.

Moreover, the proliferation of bystander videos has

“spurred action at all levels of government to address police

15

misconduct and to protect civil rights.” See Nat’l Police

Accountability Proj. Amicus Br. 1. These videos have helped

police departments identify and discipline problem officers.

They have also assisted civil rights investigations and aided in

the Department of Justice’s work with local police

departments. And just the act of recording, regardless what is

recorded, may improve policing. See Glik, 655 F.3d at 82-83.

Important to police is that these recordings help them carry

out their work. They, every bit as much as we, are concerned

with gathering facts that support further investigation or

confirm a dead-end. And of particular personal concern to

police is that bystander recordings can “exonerate an officer

charged with wrongdoing.” Turner, 848 F.3d at 689.

We do not say that all recording is protected or

desirable. The right to record police is not absolute. “[I]t is

subject to reasonable time, place, and manner restrictions.”

Kelly, 622 F.3d at 262; see Whiteland Woods, L.P. v. Twp. of

W. Whiteland, 193 F.3d 177, 183 (3d Cir. 1999). But in

public places these restrictions are restrained.

We need not, however, address at length the limits of

this constitutional right. Defendants offer nothing to justify

their actions. Fields took a photograph across the street from

where the police were breaking up a party. Geraci moved to a

vantage point where she could record a protestor’s arrest, but

did so without getting in the officers’ way. If a person’s

recording interferes with police activity, that activity might

not be protected. For instance, recording a police

conversation with a confidential informant may interfere with

an investigation and put a life at stake. But here there are no

countervailing concerns.

In sum, under the First Amendment’s right of access to

information the public has the commensurate right to

16

record—photograph, film, or audio record—police officers

conducting official police activity in public areas.

V. QUALIFIED IMMUNITY

Having decided the existence of this First Amendment

right, we now turn to whether the officers are entitled to

qualified immunity. We conclude they are.

Government actors are entitled to qualified immunity

unless they violated a constitutional right “so clearly

established that ‘every reasonable official would have

understood that what he is doing violates that right.’” Zaloga

v. Borough of Moosic, 841 F.3d 170, 175 (3d Cir. 2016)

(quoting Reichle v. Howards, 566 U.S. 658, 659 (2012))

(emphasis in original). “In other words, existing precedent

must have placed the statutory or constitutional question

beyond debate.” Id. (quoting Reichle, 566 U.S. at 664)

(emphasis in original). We do not need Supreme Court

precedent or binding Third Circuit precedent to guide us if

there is a “robust consensus of cases of persuasive authority

in the Courts of Appeals.” L.R. v. Sch. Dist. of Phila., 836

F.3d 235, 247–48 (3d Cir. 2016) (alteration and citations

omitted). District court decisions, though not binding, also

“play a role in the qualified immunity analysis.” Doe v.

Delie, 257 F.3d 309, 321 n.10 (3d Cir. 2001). To determine

whether the right is clearly established, we look at the state of

the law when the retaliation occurred, here in 2012 (Geraci)

and 2013 (Fields). See id.

To conduct the clearly established inquiry, we “frame

the right ‘in light of the specific context of the case, not as a

broad general proposition,’” L.R., 836 F.3d at 247–48

(citation omitted), as it needs to be “specific enough to put

‘every reasonable official’ on notice of it.” Zaloga, 841 F.3d

at 175 (citation omitted). At issue here is Plaintiffs’ ability to

17

record the police carrying out official duties in public. We

have never held that such a right exists, only that it might.

See Gilles v. Davis, 427 F.3d 197, 212 n.14 (3d Cir. 2005)

(“[V]ideotaping or photographing the police in the

performance of their duties on public property may be a

protected activity.”). In 2010 we held that there was no

clearly established right for the public to do so, at least in the

context of a police traffic stop. Kelly, 622 F.3d at 262 (“We

find these cases insufficiently analogous to the facts of this

case to have put Officer Rogers on notice of a clearly

established right to videotape police officers during a traffic

stop [in 2007].”). Only a few years later in 2013, in a non-

precedential opinion, we held that “[e]ven if the distinction

between traffic stops and public sidewalk confrontations is [ ]

meaningful . . . [,] our case law does not clearly establish a

right to videotape police officers performing their duties [in

2009].” True Blue Auctions, 528 F. App’x at 192-93. So to

resolve whether the right has become clearly established after

these decisions, we must decide whether a “robust consensus”

has emerged that puts the existence of this First Amendment

right “beyond debate.” Zaloga, 841 F.3d at 175.

Plaintiffs contend the absence of Circuit precedent

does not end the inquiry, as after the events in Kelly and True

Blue the Philadelphia Police Department adopted official

policies recognizing the First Amendment right of citizens to

record police in public. As plausible as that may be on the

surface, it does not win the argument. With one breath

Plaintiffs assert that these policies clearly established their

legal right, but for purposes of municipal liability (an issue

we remand) they vigorously argue that the policies were

utterly ineffective in conveying to the officers that this right

clearly existed. And Plaintiffs have compiled evidence

indicating this was so. For example, they point out that

Captain Francis Healy, the policy advisor to the Police

Commissioner, testified that, notwithstanding the adoption of

18

the Department’s policies, the “officers didn’t understand that

there was a constitutional right [to record].” Reply Br. 11

(quoting J.A. 282-83).

As to decisions of other appellate courts relevant to the

qualified immunity analysis, Defendants and the District

Court argue that those decisions are distinguishable because

they involved expressive intent or an intent to distribute. See,

e.g., Alvarez, 679 F.3d at 588 (“The ACLU intends to publish

these recordings online and through other forms of electronic

media.”); Fields, 166 F. Supp. 3d at 538 n.56 (“In Glik, the

plaintiff expressed concern police were using excessive force

arresting a young man in a public park and began recording

the arrest on his cell phone[,] and the police then arrested

plaintiff. . . . Notably, the plaintiff in Fordyce [v. City of

Seattle, 55 F.3d 436 (9th Cir. 1995)] claimed he was

recording a public protect for a local news station.”); see also

D.O.J. Amicus Br. 22 n.14 (“[I]n those cases, the plaintiffs’

objectives or opinions . . . [to disseminate] were apparent

from context. In this respect, Fields’s case in particular is one

of first impression.”). Indeed, the Fifth Circuit just this year

recognized that these other appellate decisions did not clearly

establish the constitutional right to record. See Turner, 848

F.3d at 687.

Where District Courts in our Circuit have held in favor

of the First Amendment right, Defendants also distinguish

those cases for requiring expressive act or intent, not just

recording alone, once again echoing the reasoning of the

District Court here. See Fields, 166 F. Supp. 3d at 537 (“We

find the citizens videotaping and picture-taking in [those

district court cases] all contained some element of expressive

conduct or criticism of police officers and are patently

distinguishable from Fields’ and Geraci’s activities.”).

Whether Defendants and the District Court correctly

distinguished these cases, we cannot say that the state of the

19

law at the time of our cases (2012 and 2013) gave fair

warning so that every reasonable officer knew that, absent

some sort of expressive intent, recording public police

activity was constitutionally protected. Accordingly, the

officers are entitled to qualified immunity.

VI. MUNICIPAL LIABILITY

Because of its First Amendment ruling, the District

Court did not reach whether the City could be held liable for

its officers’ conduct. See generally Monell v. Dep’t of Soc.

Servs., 436 U.S. 658 (1978). While the City contends that

there is no genuine issue of material fact and it cannot be held

liable as a matter of law, we follow our usual practice of

according our District Court colleague the initial opportunity

to resolve these contentions.

* * * * *

We ask much of our police. They can be our shelter

from the storm. Yet officers are public officials carrying out

public functions, and the First Amendment requires them to

bear bystanders recording their actions. This is vital to

promote the access that fosters free discussion of

governmental actions, especially when that discussion

benefits not only citizens but the officers themselves. We

thus reverse and remand for further proceedings.

20

Fields v. City of Philadelphia, No. 16-1650; Geraci v. City

Philadelphia, No. 16-1651

Nygaard, J., concurring in the part, dissenting in part.

I agree with the majority that the cause must be

remanded. Because I conclude that the First Amendment

right at issue is and was clearly established, I dissent.

The question of whether a constitutional right is

clearly established has to be considered in a real-world

context; this is why our analysis is conducted from the

perspective of a “reasonable official.” L.R. v. Sch. Dist. of

Phila., 836 F.3d 235, 247–48 (3d Cir. 2016) (alteration and

citations omitted). Such an approach protects public

officials—particularly our police officers in the field—from

uncertainty about the precise boundary of a particular

constitutional right when situations arise that have not yet

been considered by the courts. Nonetheless, we must apply

this “reasonable official” analysis consistently, recognizing

that there are instances—rare though they may be—when any

reasonable official in the circumstance would know the

boundaries of a constitutional right well before we have ruled

on it. I am confident that this is one of those cases because of

the unique combination of a number of factors.

First, as the majority notes, every Circuit Court of

Appeals that has considered the issue ruled that there is a First

Amendment right to record police activity in public. Four of

these decisions were published before the conduct at issue

here, and two of them occurred after our decision in Kelly v.

Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010), in which

we posited that the right was not clearly established at that

time. See Am. Civil Liberties Union of Ill. v. Alvarez, 679

F.3d 583 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78 (1st

Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332 (11th

Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir.

1995).1 I am convinced that such a “robust consensus,”

alone, sufficiently grounds a ruling that the right is clearly

established. L.R., 836 F.3d at 247–48. However, our record

goes far beyond that.

The Police Department’s official policies explicitly

recognized this First Amendment right well before the

incidents under review here took place. Captain Frank Healy

of the Department’s Research and Planning Unit stated that,

in 2011, officers did “not understand the police [were]

allowed to be taped in public.” App. 119 (2013 Healy dep. at

54). Because there was “some confusion on the street” he

testified that there “was a definite need for the policy.” App.

121 (2013 Healy dep. at 62). He said that the Department

wanted “to be on the forefront rather than on the back end,”

of educating its officers on this issue, prompting Police

Commissioner Charles Ramsey to request that a policy be

written requiring police officers to “allow citizens to record

the police.” App. 118 (2013 Healy dep. at 52). The policy

was intended to get “clarification out on the street so the

officers knew what their duties [were].” App. 120 (2013

Healy dep. at 59). It issued a memorandum in September,

2011 stating that police should reasonably expect to be

photographed, videotaped and or audibly recorded by

members of the general public. Commissioner’s

1

Two more recent decisions reinforce the trend. See Turner

v. Lieutenant Driver, 848 F.3d 678 (5th Cir. 2017); Gericke v.

Begin, 753 F.3d 1 (1st Cir. 2014).

2

Memorandum 11-01, issued on September 23, 2011, made

clear to all Philadelphia police officers that they “shall not”

obstruct or prevent this conduct, and that “under no

circumstances” were permitted to disable or damage the

devices being used. App. 1185.

In the year that followed publication of the

memorandum, Internal Affairs received eight complaints by

citizens of retaliation by police for recording police

performing their duties. App. 1569. Additionally, the U.S.

Department of Justice issued recommendations in May, 2012,

that all police departments “affirmatively set forth the First

Amendment right to record police activity.” App. 1675. As a

result, the Commissioner directed Captain Healy and his unit

to revise the Memorandum to incorporate the Department of

Justice recommendations. The revised document was issued

as Departmental Directive 145 on November 9, 2012. Like a

Memorandum, a Directive is also official Departmental

policy, but it covers a topic in greater depth.

Directive 145 plainly requires officers to allow citizens

to make recordings of police activity. The Directive uses,

verbatim, the language of the Department of Justice’s

recommendation, stating that its purpose was to “protect the

constitutional rights of individuals to record police officers

engaged in the public discharge of their duties.” App. 1187.

It said, further, that “observing, gathering, and disseminating

of information . . . is a form of free speech.” Id. Police

officers were prohibited from “blocking, obstructing, or

otherwise hindering” recordings made by persons “unless the

person making such recording engages in actions that

jeopardize the safety of the officer, any suspects or other

individuals in the immediate vicinity, violate the law, incite

3

others to violate, or actually obstruct an officer from

performing any official duty.” Id. As it was published, the

Department mandated that a sergeant read it at every roll call,

Department-wide. Each police officer also received a copy of

the Directive and was required to sign that they received it.

Although the Directives declared a First Amendment

right well ahead of this Court, the Philadelphia Police

Department Commissioner had a desire to “get out ahead” of

what he presciently viewed as an inevitable ruling. With all

of this, it is indisputable that all officers in the Philadelphia

Police Department were put on actual notice that they were

required to uphold the First Amendment right to make

recordings of police activity. From a practical perspective,

the police officers had no ground to claim ambiguity about

the boundaries of the citizens’ constitutional right here.

Mindful of the established trend among the Circuit Courts of

Appeals, this combined with this clear Guidance from the

Commissioner sufficiently grounds a conclusion that the right

to record official, public police activity was clearly

established and “beyond debate.” Zaloga, 841 F.3d at 175

(quoting Reichle, 132 S.Ct. at 2093). However, this, too,

ignores another piece of the context of this case that should be

considered as part of the “reasonable official” inquiry.

The majority cites to the 2011 article of Seth F.

Kreimer,2 in which he notes that, given the ubiquity of

personal electronic devices with cameras, “[w]e live, relate,

work, and decide in a world where image capture from life is

routine, and captured images are part of ongoing discourse,

both public and private. Capture of images has become an

2

Professor, University of Pennsylvania Law School.

4

adjunct to memory and an accepted medium of connection

and correspondence.” Seth F. Kreimer, Pervasive Image

Capture and the First Amendment: Memory, Discourse, and

the Right to Record, 159 U. Pa. L. Rev. 335, 337 (2011). If

we are to assess the issue from a reasonable officer

perspective, we cannot artificially remove him or her from

this widespread societal phenomenon. (Indeed, it is not

unreasonable to speculate that most—if not all—of the police

officers themselves possessed such a personal electronic

device at the time that the incidents underlying these cases

took place.) A reasonable police officer would have

understood, first-hand, the significance of this proliferation of

personal electronic devices that have integrated image capture

into our daily lives, making it a routine aspect of the way in

which people record and communicate events. Apart from

any court ruling or official directive, the officers’ own lived

experience with personal electronic devices (both from the

perspective of being the one who is recording and one who is

being recorded) 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.

As I noted above, I concur with the majority’s analysis

and conclusions regarding the existence of a First

Amendment right to record, and agree that the case against

the City of Philadelphia should be remanded for further

proceedings. However, in light of the social, cultural, and

legal context in which this case arose, I am convinced that—

in this unique circumstance—no reasonable officer could

have denied at the time of the incidents underlying these

cases that efforts to prevent people from recording their

activities infringed rights guaranteed by the First

5

Amendment. For these reasons, I dissent from the majority’s

conclusion that the police officers are immune from suit.

6