*1 FIELDS, Appellant Richard PHILADELPHIA; Sisca,

CITY OF Po Officer, 9547; Badge Doe,

lice No. Joe

an Unknown Police Offi

cer Geraci, Appellant

Amanda Philadelphia; Brown, Dawn Po Officer, Badge 2454;

lice No. Terra M.

Barrow, Officer, Badge Police No.

1147; Jones, Officer, Nikki L. Police

Badge 2549; Smith, No. Rhonda

Officer, Badge No. 1373 16-1650,

No. No. 16-1651 Appeals,

United States Court of

Third Circuit.

Argued May 2017)

(Opinion July filed: *2 Feinberg, Esquire, Kairys H.

Jonathan Arch Rudovsky Messing Reinberg, & Street, South, PA Philadelphia, Suite 19106, E. Grogan, Esquire, J. Peter John Leckman, Esquire, Langer Grogan & Div- Street, 4130, er, Philadel- 1717 Arch Suite 19103, Kreimer, Esquire, PA phia, Seth Law, University Pennsylvania School of Philadelphia, PA 3400 Chestnut Street 19104, Mary Roper, Esquire, Catherine Molly Tack-Hopper, Esquire (Argued), M. of Penn- American Civil Liberties Union 60173, PA sylvania, Philadelphia, P.O. Box 19106, for Appellants Counsel Gottlieb, Esquire (Argued), Craig R. Department, Law Floor, Street, Arch 17th One Park- 19102, PA Counsel for way, Philadelphia, Appellees Hickok, Dorothy Esquire, A. Alfred W. Putnam, Jr., Taticchi, D. Esquire, Mark Reath, Drinker Biddle & 18th & Esquire, Streets, Cherry Logan Square, One Suite 19103, 2000, Ilya Philadelphia, Shapiro, PA Institute, Esquire, 1000 Massachu- Cato Ave., N.W., 20001, Washington, setts DC Appellant, for Amicus Cato Insti- Counsel tute Hamilton, Segal, Esquire, Pepper

Eli 19103, Avenue, PA Ryers Philadelphia, Society Appellant, for Amicus for Counsel Photographic Education McGowan, Esquire, April Sharon M. J. Anderson, Calderon, R. Esquire, Tovah Esquire, United States Jus- Division, tice, Appellate Rights Civil Sec- tion, RFK P.O. Box Ben Station, Washington, Franklin DC Appellant, for Amicus United Counsel of America State Brown, Gregg P. Les- Esquire, Bruce D. lie, Reporters Committee for Esquire, Street, Press, 1156 15th Freedom N.W., Washington, Suite ownership DC of smartphones, “civilian re- Appellant, Reporters cording Counsel Amicus of police ubiquitous.” officers is Jocelyn Simonson, Committee for Freedom of the Press and Copwatching, 104 Cal. (2016); Organizations 31 Media L. Rev. see Seth F. Kreim- *3 er, Image Capture Pervasive and the First Sophia Cope, S. Esquire, Adam Discourse, Memory, Amendment: and the Schwartz, Esquire, Electronic Frontier Record, Right to 335, 159 U. Pa. L. Rev. Foundation, Street, Eddy San Francis- These recordings have both co, 94109, CA Counsel for Appel- Amicus exposed police misconduct and exonerated lant, Electronic Frontier Foundation However, officers from errant charges. de- LaRocca, Robert Esquire, J. Kohn Swift spite growing frequency private citi- Graf, Street, & One South Broad Suite zens recording police activity and its im- 2100, 19107, Philadelphia, PA Counsel for portance involved, to all jurisdictions some Appellant, Amicus First Amendment Law have attempted regulate the extent of Professors practice. this Individuals making record- Geckle, Esquire, Patrick G. 1500 John F. ings officers, have also faced retaliation by Boulevard, Kennedy Two Penn Center such as arrests on false charges criminal Plaza, 1850, 19102, Suite PA Philadelphia, and even violence. Burton, Esquire, John The Marine Build- This case involves retaliation. Richard ing, Avenue, Fair 128 North Oaks Pasa- Fields and Amanda Geraci attempted to dena, Milton, Esquire, CA David Philadelphia police record carrying officers Friedman, PC, Law Offices of Howard 90 out official duties in and were retali- Street, Floor, Boston, Canal Fifth MA against ated even though the Philadelphia Appellant, Counsel Amicus Na- Police Department’s policies recog- Accountability Project tional Police “[p]rivate nized that individuals have Gosselin, Esquire, Jason P. Drinker First Amendment to observe and Reath, Streets, & Cherry Biddle 18th & record police engaged officers in the public Logan Square, One Suite Philadel- discharge of their duties.” J.A. 1187. No phia, Whitehead, PA John W. Es- party contested existence of the First McKusick, quire, Douglas Esquire, R. right. Amendment Yet the District Court Christopher Moriarty, F. Esquire, concluded that neither Plaintiff had en- Institute, Rutherford P.O. Box Char- gaged in activity First Amendment be- lottesville, VA Counsel for Amicus cause the recording— conduct—the act of Appellant, Rutherford Institute sufficiently However, was not expressive. this case is not about whether Plaintiffs AMBRO, RESTREPO, Before: and expressed through themselves conduct. It NYGAARD, Judges Circuit whether have a First Amendment right of access to information about how OPINION OF THE COURT operate public. servants AMBRO, Judge Circuit Every Court of Appeals Circuit ad- (First, George Holliday Fifth, Seventh, recorded video dress this issue Eleventh) Ninth, Angeles of the Los offi- has held that there is beating Rodney King cers it submitted to record Filming police job the local news. on the in public. See Turner v. Lieuten- (5th Driver, 2017); was rare then but common now. With ad- ant 848 F.3d 678 Cir. (1st in technology widespread vances and the Begin, Gericke v. 753 F.3d 1 Cir. charges These Passages.” Public III. v. Other 2014); Liberties Union Am. Civil officer did not (7th 2012); when the were withdrawn Alvarez, Cir. Glik 679 F.3d 583 (1st 2011); hearing. at the court appear 655 F.3d 78 Cir. Cunniffe, v. 212 F.3d 1332 City Cumming,

Smith brought and Geraci U.S.C. Fields Seattle, (11th 2000); Fordyce City against § of Philadel 1983 claims (9th Today joinwe 55 F.3d 436 They al and certain officers. phia Simply put, growing consensus. illegally the officers retaliated leged that protects pho the act of First exercising their First against them for filming, or otherwise tographing, public police right to record conducting their official Amend violated their Fourth activity public. duties from an unreason ment to be free

able search or seizure. I. BACKGROUND City’s the pointed also out that They Geraci, 2012, Amanda a In September policies recog- Department’s official “Up police watchdog group member of the right. In their First Amendment nized Law,” anti-frack- attended an Against the published a memo- Department 2011 the at the Convention ing protest advising officers not to interfere randum and wore carried her camera recording police Center. She private citizen’s with a as a identified her pink protected by a bandana it the activity because was hour into the published About a half it an legal observer. First Amendment. protes- reiterating acted to arrest a that this protest, police the directive vantage a moved to better the memorandum and di- tor. Geraci existed. Both during and did so with- to record the arrest read to point rective were days. An officer And in interfering police. straight call for three out roll pinned and her abruptly pushed Geraci the events in our case and after minutes, incidents, to three against pillar a for one of other similar occurrence observing or prevented training her from a formal which instituted not ar- the arrest. Geraci was ceased re- to ensure that officers program who recorded taliating against bystanders rested or cited. activities. their 2013, Richard evening September One granted Fields, District Court nonetheless Temple University, The sophomore judgment in favor of Defendants summary he ob- sidewalk where was on They the First Amendment claims. did officers break- on served a number of a First argue against not the existence party a house across the street. ing up right, but rather contended away from him. Amendment nearest officer was 15 feet iPhone, the individual officers were entitled photograph he took a Using his immunity City could taking qualified An officer noticed Fields the scene. vicariously liable for officers’ him whether he not be photo and asked on its own Yet the District Court grown men” and acts. taking pictures “like[d] that Plaintiffs’ activities were 8. Fields re- decided ordered him to leave. J.A. him, by First Amendment be- fused, protected confis- the officer arrested so they presented no evidence and detained him. The cause phone, cated his may construed as ex- their “conduct be phone opened Fields’ officer searched or criticism of pression The offi- of a belief photos. and other several videos Philadelphia, activity.” City Fields v. and issued him a cer then released Fields (E.D. Pa. F.Supp.3d “Obstructing Highway for citation omitted). police, When confronted Plaintiffs tion Because this is a First express did not case, reasons record- Amendment we must also “engage in ing. Their later deposition testimony a searching, independent factual review of showed that simply Geraci wanted to ob- the full record.” Am. Civil Liberties Union serve and Fields picture wanted take a Mukasey, “interesting” 2008) (citations of an omitted). and “cool” scene. Id. at addition, 539. In having neither testified of III. ORDER OF ANALYSIS

an intent photos share his or her videos. Id. The District Court thus con- Defendants ask us to avoid ruling on the that, cluded any authority from “[a]bsent First Instead, issue. they Supreme Court or our Court of Ap- want us to hold regardless of the peals, we decline to create a new First right’s existence, the officers are entitled photo- for citizens to qualified immunity and the cannot graph officers expres- when have no vicariously be liable for the officers’ acts. purpose sive challenging such as reject We this invitation to easy take the actions.” Id. at 542. way out. Because this First Amendment great issue is of importance and the re- ruling,

Because of this the District cording activity is a widespread, *5 Court did not reach the qualified issues of practice, common we deal with it before immunity However, municipal liability. or needed, addressing, if liability. defenses to it allowed the Fourth Amendment claims (“The to go to trial. Id. citizens are not Katz, In Saucier v. Supreme Court remedy without because once the held that courts must determine whether a your officer phone, your takes alters tech- constitutional right existed before deciding nology, you applies arrests excessive if it “clearly had been established” such force, proceed we to trial on the Fourth that defendants would not be entitled to claims.”). By Amendment stipulation, qualified immunity. 194, 200-01, 533 U.S. Plaintiffs dismissed their Fourth Amend- (2001). 121 S.Ct. 272 L.Ed.2d ment they claims so that could immediate- later, however, Less than a decade ly appeal the ruling. First Amendment Court reversed course in Pearson v. Calla-

han, holding that courts instead have the II. AND JURISDICTION discretion to immunity choose to address

STANDARDS first bypass and the substantive constitu- tional issue. 555 U.S. 129 S.Ct. The District subject Court had 808, 172 L.Ed.2d 565 have not We jurisdiction matter over these federal civil ruled on the First right, in- rights §§ claims under 28 U.S.C. 1331 & merely holding stead that at the time of jurisdiction and we have under 28 our rulings the claimed was not § plenary U.S.C. 1291. We exercise review clearly Kelly Borough established. of over the grant summary District Court’s of (3d Carlisle, 2010); 622 F.3d 248 True Cir. Melrose, judgment. Inc. v. Pitts of Foster, Blue Auctions v. Fed.Appx. (3d 2010). burgh, 613 F.3d Cir. It (3d where, “is appropriate only drawing all since, reasonable inferences in favor years of the non- moving party, genuine there is no issue as recording police activity issues from the of any recur, to material fact ... moving they directly and and deal with constitu- party is entitled judgment as a matter tional technological prog- doctrine. With (alteration of law.” original Id. ubiquity and cita- ress and the smartphone own- Fields, Amendment’s years scope.” in the since First ership especially — age are now an Kelly Tenafly decision—we at 534 & F.Supp.3d (quoting n.34 public record our can Ass’n, where Tenafly, Inc. v. Borough Eruv easily conduct and distribute officials’ 2002)). 144, 158 This widely. increase in the ob recording on Foremost disagree various fronts. We servation, recording, sharing and on is that the District Court focused to our na greatly has contributed expressive Plaintiffs an in- whether had policing. Conse proper tional discussion tent, such as desire to disseminate the nationwide, departments of quently, police recordings, or use them to criticize input Department from the ten with U.S. police, at the moment when recorded Justice, developing polices are address issues, attempted police activity. See opinion these and our record ing precisely comply in their ignores can assist efforts to This reasoning id. at 534-35. Moreover, in the case the Constitution. recordings may the value of the not be question before us the constitutional obvious, immediately only after review pro factbound decision [our] [will] “so apparent. of them does their worth become guidance little for future cases.” vide[] protects pho- The First Amendment actual Pearson, 237, 129 U.S. 808. S.Ct. All videos, tos, recordings, see Brown the First we need decide is whether Ass’n, Entm’t Merchants protects the act of 180 L.Ed.2d 708 carrying out official duties (2011), and for to have protection places. also have excellent We meaning protect the Amendment must also briefing appeal, including on counsel for creating the act of that material. There is amici, parties eight including allowing practical no difference between Justice, In the Cato U.S. *6 prevent taking to people from stitute, well-known Amendment law First cordings actually banning posses- and the professors, largest some of the news Alvarez, or distribution sion of them. See in organizations country. the We therefore (“Restricting 679 F.3d at 596 the use of an question address the First be Amendment recording sup- audio or audiovisual device moving the fore to defenses. speech just effectively as re- presses as stricting resulting the dissemination the THE IY. AMENDMENT FIRST recording.”); Ami- see also Cato Institute RIGHT TO RECORD (“[B]oth precedent prin- cus Br. 7 and first The District Court that Plain- concluded ciples demonstrate that the First Amend- (the in engaged only tiffs conduct act of ment the protects process capturing making opposed expres- a to recording) as inputs may yield just not expression, criti- (using recording sive conduct to itself’); expression the final act of Kreim- cize the otherwise comment on (“[T]he er, Pa. L. threat 159 U. Rev. at 366 actions). by analogy, It officers’ did so potent of arrest remains a deterrent applying the “expressive conduct” test no spontaneous photographers who have symbolic speech: used to address “Conduct capturing any partic- commitment to deep protected is the First Amendment here, image.”). ular As illustrated because nature activity, when the of the combined stopped from re- the officers Ms. Geraci with the factual context and environment cording protestor, the arrest she undertaken, it was which shows opportunity put never had the to decide sufficiently was imbued with ele- expressive ments of any recording communication to fall within the use. argue (recognizing “paramount public inter- Plaintiffs and some amici est in a free of information to the “inherently expressive flow act of is officials, diary, people concerning public their conduct,” writing a painting, like servants”). See, That information is the well- marching parade. e.g., in a dancing, or debates; spring of our if the latter are to Professors Amicus Amendment Law First “ ” ‘uninhibited, robust, wide-open,’ be (“If diary writing an undistributed Br. 8 Snyder, 562 U.S. at 131 S.Ct. 1207 making an undistributed record speech, is characterized, Sullivan, N. Y. (quoting Times Co. as speech as ing can be 710, 11 U.S. L.Ed.2d 686 well.”); Photographic for Education Society (1964)), the the information more credible (“Making photograph Br. 2 mer Amicus the more are the credible debates. it protection Amendment because its First just the same as expression artistic To record what there is the landscape, sketching a street painting eye for the to see or the ear to hear statue.”); scene, Tenafly sculpting a lays subjective im corroborates or aside (“‘Parades Ass’n, 309 F.3d at 160 Eruv objective facts. Hence to rec pressions just expression, form of are thus a accurately. ord is to see and hear more ....’”) (quoting Hurley v. Irish- motion facilitate Recordings also discussion be Gay, Lesbian and Bisexual American cause of the ease in which can be Bos., 557, 568, 115 Grp. 515 U.S. S.Ct. widely distributed via different forms of (1995)). Regardless 132 L.Ed.2d 487 Accordingly, recording police media. activi arguments, of these our case of the merits ty squarely falls within the First to create people attempting is not about of access information. subjects. their It is about art with as right, has this so press As no doubt recording police performing public. Publ’g. See PG Co. v. does official duties. 2013); Aichele, 705 F.3d 665, 684, 92 Branzburg Hayes, protects The First 2646, L.Ed.2d 626 S.Ct. right of access to information public’s per- different Bystander provide videos public activities. It about their officials’ police and dashboard cam- spectives than “goes beyond protection press eras, circumstances and sur- portraying prohib of individuals to self-expression often do not roundings videos government limiting it from the stock *7 gaps also fills the capture. Civilian video from which members of the information choose not to record police created when may Nat’l. Bank public draw.” First from the footage or video withhold 765, 783, Bellotti, Bos. v. 435 U.S. 98 S.Ct. Accountability Pro- Nat’l Police public. See 1407, 55 L.Ed.2d 707 Access (noting Br. 7 recent ject “[a] Amicus activity regarding public police information major departments’ survey police of 50 it leads particularly important is because cameras revealed that policies body on issues, to citizen discourse on “the failed to make clear many policies either rung hierarchy of First highest body turn on their when officers must values, spe entitled to is cameras, much discretion gave officers too Snyder Phelps, v. 562 protection.” cial U.S. record, expla- require failed to when to 443, 452, 172 179 L.Ed.2d S.Ct. record”) (ci- nations when officers did (2011) Myers, (quoting Connick U.S. omitted). tation 103 S.Ct. 75 L.Ed.2d Louisiana, of this content also (1983)); public’s creation Garrison (1964) media. the role of the news complements 13 L.Ed.2d Indeed, gathering investigation citizens’ and disseminat- or confirm a dead-end. And “newsworthy information ing with particular personal police [occur] concern to is an ease that rivals that of the traditional bystander recordings can “exonerate media.” 2012 U.S. D.O.J. Letter to news charged an officer wrongdoing.” Tur- Department; Baltimore Police J.A. 1684. ner, 848 F.3d at 689. (“The Glik, prolif- See also 655 F.3d at 78 say do not We that all is eration of electronic devices with video- protected or desirable. The to record recording capability many means that subject is not absolute. “[I]t images of current events come from time, place, reasonable and manner re

bystanders ready phone digi- with a cell 262; Kelly, strictions.” F.3d see tal camera rather than a traditional film Woods, Twp. Whiteland L.P. v. W. crew, just and news stories are now as Whiteland, likely a blogger be broken at her 1999). But in public places these restric computer reporter major newspa- as a at a are tions restrained. In per.”). complementing addition to role of the press, private traditional re- not, however, We need at length address cordings improved professional have re- right. limits of this constitutional De- porting, generated by as “video content nothing justify fendants offer their ac- bystanders witnesses and has become a photograph tions. Fields took a across the component common program- of news street from where the were break- ming.” The Reporters Committee for ing up party. vantage Geraci moved to a Freedom of the Press and 31 Media Or- point protestor’s where she could record a 11; ganizations Amicus Br. see also id. at 2 arrest, did getting but so without in the (“Today, the first source of information way. If a person’s recording officers’ inter- newsworthy from the scene of a event is police activity, activity feres with frequently ordinary an citizen with a smart instance, might protected. not be For phone.”). “bystander And the inclusion of cording police conversation awith confi- tell, journalists video enriches the stories may dential informant interfere with an distinct, routinely adding a first-person investigation put a life at stake. But perspective coverage.” to news 12. Id. at countervailing here there are no concerns. Moreover, proliferation bystander sum, under the First Amendment’s “spurred videos has action at all levels of of access to information the government to address misconduct has the commensurate to record— protect rights.” and to civil See Nat’l Police film, photograph, or audio record — Accountability Proj. Amicus Br. 1. These conducting helped police departments videos have public areas. identify discipline problem officers. They have also rights assisted civil investi- QUALIFIED V. IMMUNITY

gations and aided in the Department of *8 Justice’s work with local depart- Having decided the existence of just ments. And act of recording, the right, this First Amendment we now turn recorded, gardless may what is improve qual to whether the officers are entitled to Glik, policing. See 655 F.3d at Im- 82-83. immunity. they ified conclude are. We portant to police recordings is that these help carry They, them out their Government actors are entitled to work. we, every bit much qualified immunity they as as are concerned unless violated a gathering support right clearly facts that further constitutional “so established

361 ciently analogous have to the of ‘every reasonable would facts this case that official put Rogers to doing that what he is violates have Officer on notice of a understood ” Moosic, clearly Zaloga Borough right videotape po established right.’ that (3d 2016) 170, (quoting during lice officers a traffic stop [in 841 F.3d Cir. 2007].”). Howards, Only years a later in in few Reichle (2012)) non-precedential opinion, 182 L.Ed.2d 985 we held that words, if original). in “In other the distinction between traffic (emphasis “[e]ven placed stops have the sidewalk confrontations existing precedent must is [,] meaningful be- ... our case law does statutory question [ ] or constitutional Reichle, clearly right (quoting videotape police Id. establish yond debate.” 2088) in (emphasis performing their duties [in 2009].” U.S. at S.Ct. Auctions, Supreme Fed.Appx. do not need Court True Blue original). We binding prece- right Third Circuit 192-93. So to resolve whether the precedent clearly us if there is a “robust has become established after these guide dent decisions, persuasive authority we must decide whether a “ro consensus of cases emerged puts L.R. consensus” has that the Appeals.” in the Courts of v. Sch. bust (3d Phila., right 836 F.3d 247-48 existence of this First Amendment Dist. of 2016) (alteration “beyond Zaloga, and citations omit- debate.” 841 F.3d at 175. Cir. ted). decisions, though not District court Plaintiffs contend the absence Circuit qualified in binding, “play also a role the precedent inquiry, does not end the as Delie, immunity analysis.” Doe v. 257 F.3d Kelly after the events in and True Blue (3d To 321 n.10 determine the established, clearly right whether the recognizing adopted policies official the the look at the state of the law when we right citizens to rec- (Geraci) occurred, in retaliation here in public. plausible ord As as (Fields). and 2013 See id. surface, may on it does not win the be argument. one breath Plaintiffs as- With clearly established To conduct clearly policies sert that these established ‘in inquiry, light we “frame the mu- legal right, purposes but for case, context of the not as a broad specific remand) (an nicipal liability issue we L.R., 836 F.3d at general proposition,”’ were vigorously argue policies (citation omitted), 247-48 as it needs to be conveying to the offi- utterly ineffective enough put ‘every reasonable “specific right clearly existed. And cers Zaloga, F.3d at official’on notice of it.” compiled have evidence indicat- Plaintiffs (citation omitted). At here is issue ing example, they point so. For this was car ability Plaintiffs’ to record the Healy, policy Francis Captain out that have rying public. out duties We Commissioner, testi- advisor to the Police exists, only that such a never held notwithstanding adoption fied Davis, might. that it See Gilles v. policies, the “officers Department’s 2005) (“[V]ideotaping 212 n.14 that there was a consti- didn’t understand per photographing Reply Br. 11 tutional [to record].” public property of their duties on formance 282-83). (quoting J.A. may activity.”). In 2010 we protected be a appellate other courts clearly As to decisions of held that there was no established immunity analysis, so, qualified public to do at least in the relevant to the right for the *9 argue Defendants and the District Court stop. Kelly, context of a traffic (‘We distinguishable are be- insuffi- that those decisions F.3d at 262 find these cases expressive cause involved intent or an VI. MUNICIPAL LIABILITY recording plaintiff ing plaintiff expressed in a then arrested station.”); see also D.O.J. Amicus Br. 22 n. F.3d 436 intent to distribute. arrest on his cell lish these F.3d at 588 other forms excessive force F.Supp.3d at public park in (9th recordings Fordyce public protest (“The plaintiff. electronic 538 n.56 phone[,] concern ACLU intends to arresting 1995)] See, [v. began recording online and ... e.g., media.”); Fields, for a local news claimed he was and the (“In Glik, Notably, Alvarez, young Seattle, were us- through pub- man these contentions. league material fact and it cannot be held hable as tice tends that the Soc. the District Court did not reach’ whether a matter of conduct..See L.Ed.2d 611 Because of City Servs., of according the initial could be held there is no law, generally its First Amendment n n n n ^[*] we follow our usual our District Court col opportunity While the liable Monell v. genuine its officers’ to resolve City issue of Dep’t ruling, prac con (“[I]n cases, plaintiffs’ objec- those We ask much of police. They our can be opinions tives or ... [to were our disseminate] shelter from the storm. Yet officers apparent from context. In respect, this public are carrying officials out in particular functions, Fields’s case is one of first and the First Amendment re- Indeed, impression.”). the Fifth quires Circuit bystanders them to bear recording just year recognized that these other promote actions. This is vital to appellate decisions did not clearly establish access that fosters free gov- discussion of right the constitutional actions, record. See Tur- especially ernmental when that ner, 848 F.3d at 687. only discussion benefits not citizens but the officers themselves. thusWe reverse Where District Courts in our Circuit and remand for further proceedings. in have held favor of the First Amendment right, distinguish Defendants also those NYGAARD, Judge, Circuit concurring requiring expressive cases for in- act or part, dissenting part. tent, just alone, again once I agree majority with the that the cause echoing reasoning of the District Court must be remanded. Because I conclude Fields, here. See 166 F.Supp.3d at 537 at issue is (“We videotaping find the citizens pic- established, clearly and was I dissent. ture-taking in district court [those cases] all expressive contained some element of question of whether a constitutional conduct or criticism of clearly officers and is established has to be con patently distinguishable are context; from Fields’ sidered a real-world why this is activities.”). and Geraci’s analysis Whether Defen- our per conducted from the correctly dants and the District spective Court dis- of a “reasonable official.” L.R. v. cases, tinguished these say Phila., we cannot that Sch. Dist. 247-48 (alteration 2016) the state of the law at the time of our and citations (2012 2013) omitted). cases gave warning fair approach protects so Such an every reasonable officer knew particularly officers in officials— intent, expressive absent some sort of uncertainty pre field—from about the cording public police activity was boundary particular constitu- cise of a constitutional tionally protected. Accordingly, the when situations arise that have not are qualified immunity. entitled to yet been considered the courts. None-

363 end,” theless, educating back of its officers on this apply must this “reasonable we issue, consistently, recognizing analysis prompting official” Commissioner though they there are instances —rare Ramsey request policy that Charles that a in any reasonable official may be—when requiring police written officers to “al- be know the bound- circumstance would police.” App. low citizens to record the 118 right well before (2013 52). aries of a constitutional Healy dep. policy at The was it. I am confident that we have ruled on get intended to “clarification out on the of the is one of those cases because this so the officers knew street what of a number of factors. unique combination (2013 App. Healy dep. duties [were].” 59). in Sep- at It issued memorandum notes, First, every majority as the Cir tember, stating that should Appeals of that has considered cuit Court reasonably expect photographed, to be there is a First the issue ruled audibly videotaped and or recorded right to record general public. members of the Commis- in Four of these decisions were public. 11-01, here, sioner’s Memorandum issued on the conduct at issue published before clear to all Phil- September of them occurred after our deci made two Carlisle, Borough v. Kelly adelphia police sion in officers “shall 2010), posit conduct, in we F.3d 248 Cir. which prevent not” obstruct or clearly was not estab right ed that per- that “under no circumstances” were at that time. See Am. Civil Liberties lished damage mitted to disable or the devices (7th Alvarez, 679 F.3d 583 III. v. Union being App. used. 1185. 2012); Cunniffe, 655 F.3d 78 Glik v. Cir. year publication that followed (1st 2011); City Cumming, Cir. Smith memorandum, Internal Affairs re- (11th 2000); Fordyce Cir. F.3d 1332 complaints by citizens of re- eight ceived (9th Seattle, 55 F.3d 436 Cir. City of by police recording' police taliation 1995).1 I am convinced that such “robust performing App. their duties. 1569. Addi- alone, consensus,” sufficiently grounds a tionally, Department the U.S. of Justice clearly established. ruling May, issued recommendations However,

L.R., 836 F.3d at 247-48. “affirmatively police departments that all goes beyond far that. record set forth the First Department’s policies The Police activity.” App. 1675. As a record recognized this First Amend- explicitly result, Captain directed the Commissioner the incidents under ment well before the Memo- Healy and his unit to revise Captain Frank place. review here took incorporate Department randum to Healy Department’s Research revised recommendations. The Justice Planning Unit stated Di- Departmental issued as document was al- [were] did “not understand 9, 2012. Like a rective 145 on November public.” App. taped lowed to be Memorandum, is also official a Directive (2013 54). there was Healy dep. at Because topic it covers a Departmental policy, but confusion on the street” he testified “some depth. in greater a definite need for the there “was 62). (2013 plainly requires officers Directive 145 Healy dep. policy.” App. recordings to make “to allow citizens He said that the wanted uses, verbatim, the activity. Directive than on the be on the forefront rather (5th 2017); Begin, 753 Gericke v. F.3d 678 1. Two more recent decisions reinforce the Driver, (1st F.3d 1 Turner v. Lieutenant trend. See *11 language Department However, this, too, of the of Justice’s S.Ct. at ignores recommendation, stating purpose that its piece another of the context of this case “protect rights was to the constitutional of that should be considered as part of the police individuals to record officers en- inquiry. “reasonable official” gaged in the discharge of their majority cites the 2011 article of said, further, It App. duties.” 1187. Kreimer,2 Seth F. in which he notes “observing, gathering, disseminating given ubiquity personal of electronic ... of information is a form of free cameras, live, relate, devices with “[w]e speech.” prohibited Id. Police officers were work, image and decide a world where “blocking, obstructing, from or otherwise hindering” recordings routine, persons capture made from life is and captured person making “unless the such images discourse, are part ongoing of both engages in that jeopardize actions the safe- public private. Capture images of has officer, ty any suspects of the or other adjunct memory become an and an ac- vicinity, individuals in the immediate vio- cepted medium of connection and corre- law, violate, late the incite others to spondence.” Kreimer, Seth F. Pervasive actually obstruct an perform- officer from Image Capture and the First Amendment: ing any duty.” official Id. As it was pub- Discourse, Memory, Right and the to Rec- lished, the Department mandated that a ord, 159 U. Pa. L. Rev. If call, sergeant every read it at roll Depart- we are to assess the issue from a reason- ment-wide. Each officer re- also. perspective, able officer we cannot artifi- ceived a copy the Directive and was cially remove him or her from this wide- required sign they received it. spread (Indeed, societal phenomenon. it is Although the Directives declared a First speculate unreasonable to that most— Court, well ahead of this if not all—of the officers themselves the Philadelphia Department Police Com possessed personal such a electronic device “get missioner had a desire to out ahead” at the time that the incidents underlying presciently of what he viewed as an inevit place.) these cases took A po- reasonable this, able all ruling. indisputa With it is understood, lice officer would have first- ble that all hand, significance of this proliferation put were on actual no of personal electronic devices that have required tice that were to uphold the integrated image capture daily into our to make record lives, it making aspect way a routine ings activity. practical From a people which record and communicate perspective, officers had no Apart any ruling events. from court ground ambiguity to claim about directive, the officers’ own lived boundaries of the citizens’ constitutional experience personal electronic devices right here. Mindful of the established (both perspective from the being among trend Ap Circuit Courts of one who is recording being and one who is peals, this combined with this clear Guid recorded) makes it unreasonable to as- ance from the sufficiently Commissioner sume that the officers were oblivious grounds a conclusion to rec official, implications the First Amendment ord police activity was clear ly “beyond any attempt by established and them to curtail such debate.” Zalo ga, Reichle, 841 F.3d at 175 (quoting cordings. Professor, University Pennsylvania

2. Law School. above, I with the concur I noted

As regard- and conclusions

majority’s analysis of a First Amendment existence

ing the record, case agree

right to *12 Philadelphia should be City of

against the Howev- proceedings. further

remanded cultural, social, legal

er, light arose, I am this case in which

context circum- unique that —in

convinced could have reasonable officer

stance—no incidents under- the time of the

denied at prevent that efforts to

lying these cases in- recording their activities from

people by “the First rights guaranteed

fringed reasons, I dissent For these

Amendment. majority’s conclusion

from the immune from suit. officers are America, STATES

UNITED

Appellant

Carolyn JACKSON America, Appellant

United States E.

John Jackson 16-1200, 16-1201

No. No. Appeals, States Court of

United

Third Circuit. February

Argued July

Filed: