Third Circuit affirms the right to record the police, quoting brief written by David Milton for the National Police Accountability Project

The United States Court of Appeals for the Third Circuit recently issued an opinion affirming a vital right granted by the First Amendment: the right to record police officers. The opinion cites an amicus curiae, or friend-of-the-court, brief that David Milton wrote on behalf of the National Police Accountability Project (“NPAP”). Amicus briefs provide courts with information and arguments that the parties to the case may not raise. 

David is well-acquainted with the right to videotape police officers. In 2011, he argued Glik v. Cunniffe, which resulted in the First Circuit Court of Appeals confirming the right to audio and video record police officers in public. The recent Third Circuit opinion relies on Glik and quotes David’s amicus curiae brief twice.

David’s brief for NPAP argued that recordings made by civilians—typically, cell phone videos—promote police accountability and can expose police misconduct or brutality that would otherwise remain hidden. For example, judges and juries are more likely to give police officers the benefit of the doubt despite the well-documented prevalence of police perjury. But a civilian’s cell phone video can provide the irrefutable evidence necessary to convince these supporters of law enforcement to admit that a police officer may lie. Video has proved to be critical evidence in civil rights cases against police.

In the case before the Third Circuit, Richard Fields v. City of Philadelphia, et al., police retaliated against Mr. Fields for taking a photo of on-duty police officers performing their duties in public. The officers arrested Mr. Fields, confiscated his phone, and searched through his photos and videos. The police released Mr. Fields but issued him a citation, which was later withdrawn. The police retaliated against Mr. Fields despite the fact that the police department had issued written instructions telling Philadelphia police officers they should not interfere with a private citizen’s recording of police activity. The district court concluded that Mr. Fields’s recording was not expressive enough to be protected by the First Amendment, but the Third Circuit overruled this, stating, “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.”

Read the Third Circuit’s opinion and the amicus curiae brief. 

Unfortunately, the recent opinion also granted qualified immunity to the individual police officer defendants. This means while the right is established for future cases, the police officers cannot be held legally responsible in this case because the law in the Third Circuit was not clearly established at the time of the incident. To learn more about qualified immunity and how it negatively affects civil rights cases, check out this comic.