REUTERS/Tony Gentile

A federal judge has ruled that civilians actually have no constitutional protection to do so, except under specific (and subjective) circumstances.

Despite what the ACLU has long advised, you do not have the right to take photos or record videos of cops—except when you’re planning to actively challenge police activity with the images. This is what U.S. District Judge Mark Kearney has ruled in a case involving two Philadelphia residents suing city police for using excessive force against them. The two plaintiffs, Richard Fields and Amanda Geraci, both had their cameras taken by police while they observed and filmed the officers’ actions, and both filed suit claiming this was a violation of their constitutional rights.

But neither had a protected right to film police to begin with, according to Kearney’s February 19 ruling. Wrote the judge:

We find there is no First Amendment right under our governing law to observe and record police officers absent some other expressive conduct. …

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.

This means that only photos and videos of police taken in the spirt of protest or meant to express some other message of disapproval are protected. For this case, Kearney believes that Fields and Geraci weren’t expressing anything that deserved protection—even though Geraci has training as a legal observer through a program called Cop Watch Berkeley.  

“What the judge has said is the act of creating a picture or a video is not itself the equivalent of speech,” says Mary Catherine Roper, an attorney with the ACLU of Pennsylvania and part of Fields’ and Geraci’s legal team. “We think that’s inconsistent with the way people use video in conjunction with police interaction,” she tells CityLab. “People in these situations are recording the police in case something happens that they may want to complain about or talk about later. And what [Kearney] is suggesting is that unless you already know what you’re going to do with your video—that is, to make a complaint against the police—that it’s not considered ‘expressive conduct,’ and therefore, not protected.”

Fields, a Temple University student, was walking down a sidewalk on September 13, 2013, when he saw 20 or so cops standing outside a house where a party was going on. According to court documents, Fields thought this was “an interesting scene,” so he took a picture. A cop approached Fields and asked him if he liked “taking pictures of grown men” before handcuffing Fields, taking his camera phone, and then placing him in a police van.

Kearney, in his ruling, took Fields’ “interesting scene” comment as the final, end-all say on how the photos could be used, and decided that the photographs weren’t critical enough to be legally protected. This is circular logic: If the police had attacked someone, Fields’ photos could have served as proof of actual events against taking the officers’ words as gospel. (And we know how that often ends up.)

“When an encounter with police starts, you don’t start filming necessarily because there’s already something happening that you want to criticize,” says Roper. “Sometimes you’re filming because there’s the potential for something to happen that you may want to criticize later, and this ruling doesn’t leave room for that kind of proactive monitoring.”

There are plenty of prior court cases that explicitly grant the right for civilians to film police activities. Philadelphia police Commissioner Charles Ramsey, in fact, sent out a memo in September 2011 reinforcing people’s First Amendment-protected rights to film cops. But Kearney cites a number of prior court cases in which judges have ruled otherwise—at most, leaving the question of whether you can film police unresolved. One particular case is the 2013 Montgomery v. Killingsworth case, which also involved a person recording a Philadelphia cop as he made an arrest. There, Judge William H. Yohn Jr. deferred to the “qualified immunity” of police while stating that there was no “clearly established” right for a person to film the police—again, unless they’re expressing dissent.  

UCLA free speech professor Eugene Volokh wrote in a Washington Post blog post that he doesn’t think Kearney’s reasoning is correct:

Whether one is physically speaking (to challenge or criticize the police or to praise them or to say something else) is relevant to whether one is engaged in expression. But it’s not relevant to whether one is gathering information, and the First Amendment protects silent gathering of information (at least by recording in public) for possible future publication as much as it protects loud gathering of information.

Roper says the legal team will definitely appeal the decision. But until then, it looks like there will be no Instagramming the police—unless you intend to add an N.W.A.-approved caption to it. In a society where police are protected if they shoot you with guns but you’re not protected if you shoot the police with cameras, law enforcement has an outsized legal advantage over ordinary citizens.

“That’s arguably why there are so many problems with the police now,” says Roper. “Because the policeman’s word was always taken as the final truth. [Cameras] have changed the game, though. There is no substitute for the ability to videotape police if you are talking about ensuring accountability.”

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