Another Federal Appeals Court Upholds the Constitutional Right to Record Police

Recording on–duty police officers in public is protected by the Constitution, another federal appeals court ruled on Friday. A broad judicial consensus now exists on this point, as not a single U.S. federal appeals court has ruled against the public’s right to record police officers fulfilling public duties.

The latest ruling was issued by the 3rd Circuit Court of Appeals against Philadelphia police over two separate incidents several years ago in which officers retaliated against private citizens who were recording them. One case involved the recording of the arrest of an anti–fracking protester, and the second occurred at a Temple University party that was broken up by police.

The 3rd Circuit Appeals Court joins the 1st, 5th, 7th, 9th, and 11th circuits in affirming the First Amendment right to record. This brings the total number of states covered by federal court rulings upholding the right to record to exactly half of the U.S., The Atlantic noted.

“[R]ecording 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,” the three–judge federal panel wrote in its ruling. “Bystander videos provide different perspectives than police and dashboard cameras, portraying circumstances and surroundings that police videos often do not capture. Civilian video also fills the gaps created when police choose not to record video or withhold their footage from the public.”

According to The Atlantic:

The matter of whether citizens have a right to record police has grown in importance in recent years, as video clips of police encounters with unarmed black men and women circulate rapidly on social media, growing more high-profile with each share. That footage helped spark the Black Lives Matter movement and a national debate over police reform and technology’s role in it.

In district court, attorneys for the City of Philadelphia did not dispute the plaintiffs’ claims to constitutional protection for recording officers. In fact, the city says it had instructed officers “multiple times” that the public has a right to record. Instead, they argued that the police officers involved were protected by immunity because the constitutional guarantee was not yet “clearly established.”

The 3rd Circuit actually agreed with that position, stating that it was not clearly established that recording was a constitutional right when the incidents occurred in 2012 and 2013.

But Philadelphia police—and police departments throughout the country—are now officially on notice that prohibiting citizens from recording on–duty cops is unquestionably unconstitutional, and half of the nation’s federal courts agree.

Any attempt by cities and departments to fight lawsuits stemming from police retaliation or interference with people who are recording won’t have much of a legal leg to stand on anymore.