Case 2:14-cv-05264-MAK Document 44 Filed 02/19/16 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
RICHARD FIELDS

CIVIL ACTION

. v.

NO: 14-4424
CITY OF PHILADELPHIA, et al
CIVIL ACTION

AMANDA GERACI

v.
NO: 14-5264
CITY OF PHILADELPHIA, et al

February 19, 2016

KEARNEY,J.

MEMORANDUM
In two incidents a year apart, Philadelphia police officers possibly violated the Fourth
Amendment when encountering citizens either before or after the citizens captured police
conduct on film. The citizens never told the police why they were capturing images of the police
interacting with people they did not know. They were watching their police officers in action
and wanted to capture the images because, at least for one of the citizens, "[i]t was an interesting
scene. It would make a good picture" and for the other because she is a legal observer trained to
observe the police. The question today is whether citizens also enjoy a First Amendment right to
photograph police absent any criticism or challenge to police conduct.

The citizens urge us to

find, for the first time in this Circuit, photographing police without any challenge or criticism is
expressive conduct protected by the First Amendment. While we instinctively understand the
citizens' argument, particularly with rapidly developing instant image sharing technology, we
find no basis to craft a new First Amendment right based solely on "observing and recording"
without expressive conduct and, consistent with the teachings of the Supreme Court and our
Court of Appeals, decline to do so today.

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We begin by reminding the parties we are not addressing whether the officers' conduct
violated the Fourth Amendment which awaits the jury's credibility evaluation. We are also not
addressing a First Amendment right to photograph or film police when citizens challenge police
conduct.

We focus only on the facts in this case. Our analysis must temporally separate the

police's taking of a cell phone, arresting the citizen or applying excessive force. While courts
applying the Fourth Amendment have long held police may not seize phones or arrest citizens
without probable cause and cannot use excessive force, this case asks us only to study one
snapshot in time through the lens of the First Amendment only: whether photographing or
filming police on our portable devices without challenging police is expressive conduct protected
by the First Amendment.
Richard Fields' conduct

On September 13, 2013, Temple University student Richard Fields ("Fields") stopped
walking on the Broad Street sidewalk to use his cell phone to photograph approximately twenty
(20) police officers standing outside a home hosting a party. 1 He thought "what a scene, and ...
took a picture from the other side of the street." 2 "It was an interesting scene. It would make a
good picture ... " 3 "I just thought that would make a great picture .... It was pretty cool, it was like
a mob of them, so I was, like, just take a picture. " 4 He did not say a word to anyone. 5 Fields
does not claim taking another picture.
Officer Sisca approached him after he took the picture. 6 Fields alleges Officer Sisca
questioned him, "[d]o you like taking pictures of grown men?" Fields answered "No, I'm just
walking by." Officer Sisca asked him to leave. Fields refused to leave "[b]ecause I felt that I was
doing nothing wrong. I was perfectly acting within my rights just standing on the sidewalk,
taking a picture of public property." 7 Fields "was about 15 feet away from any police officer." 8

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After Fields refused to leave, Officer Sisca detained him, handcuffed him, emptied his
pockets, took his cell phone and searched his phone. 9 Officer Sisca did not delete the photo.
Officer Sisca placed Fields in a police van while he cited Fields for Obstructing Highway and
Other Public Passages under 18 Pa.C.S.§5507. After citing him, Officer Sisca returned the cell
phone and released Fields from custody. 10 Officer Sisca did not appear for the court hearing on
the citation.
Fields seeks damages under 42 U.S.C. §1983 against Officer Sisca alleging retaliation for
exercising a First Amendment right to "observe and record" police, and for violating his Fourth
Amendment rights against unreasonable search and seizure, and false arrest. Fields also seeks
damages under §1983 for malicious prosecution.

These facts, taken in the light most favorable

to Fields, could result in Fourth Amendment liability arising from Officer Sisca's possibly
inexplicable statement and conduct. But the question today is whether the First Amendment
protects Fields from police retaliating against him for photographing them without criticizing or
challenging police before or contemporaneous with the photo.
Amanda Geraci 's conduct

Amanda Geraci ("Geraci") is a self-described "legal observer" who, following training at
Cop Watch Berkley, observes interaction between police and civilians during civil disobedience
or protests. 11 She claims to wear a pink identifier. 12 While she thinks the police know who she
is, she is not a liaison with the police. 13 Before 6:45 A.M. on September 21, 2012, Geraci
attended a public protest against hydraulic fracturing near the Pennsylvania Convention Center in
Philadelphia, and carried a camera with her to videotape the scene. 14 She described the people as
"excited. They were dancing, they were playing music. Relatively chill, I guess." 15

3

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Approximately six to ten civil affairs officers attended to manage crowd control and ensure
convention guests could enter the Convention Center. 16
During the protest, Philadelphia police arrested one of the protestors. 17 Geraci moved
closer to get a better view and hoped to videotape the incident. 18 Geraci claims Officer Brown
"attacked her" by physically restraining her against a pillar and preventing her from videotaping
the arrest. 19 Geraci recalls this as being her only physical interaction with the police despite
having attended at least twenty (20) similar events.2° The police released Geraci and did not
arrest or cite her. 21 Geraci could not remember any other police officers around her. 22 Geraci
recalls telling Officer Brown "things like I'm not doing anything wrong. I was just legal
observing. I don't remember much. It's very blurry. Like it was really kind of shocking." 23
Geraci seeks damages under 42 U.S.C. §1983 for First Amendment retaliation against
Officer Brown and the City of Philadelphia and claims her peaceful attempt to observe and
record police amounts to an exercise of a First Amendment right. Geraci also seeks damages
under §1983 against Officer Brown and three fellow officers, Defendants Barrow, Jones and
Smith, for violating her Fourth Amendment right to be free from excessive force when she tried
to get a better view of the police arrest. Although Geraci does not claim Officers Barrow, Jones
or Smith had any physical contact with her and she cannot testify they were ever near her, she
seeks recovery against them because they failed to intervene in Officer Brown's alleged use of
excessive force.

I.

ANALYSIS OF FIRST AMENDMENT RETALIATION CLAIM

Fields and Geraci filed separate actions under 42 U.S. C. § 1983 seeking damages for
constitutional injuries inflicted by individual Philadelphia police officers and their employer City
of Philadelphia. 24

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While the officers seek dismissal of the First Amendment retaliation claim based on
qualified immunity, and the City based on lack of supervisory liability under Monell v. Dep't of

Soc. Servs. of City of New York 5, we focus on the threshold issue: whether Fields or Geraci
engaged in First Amendment protected conduct. We find there is no First Amendment right
under our governing law to observe and record police officers absent some other expressive
conduct. As we find Fields and Geraci did not engage in constitutionally protected conduct, we
do not address the potentially liable parties and their defenses.
We first analyze the facts of expressive conduct adduced by Fields and Geraci under the
customary analysis and then address Fields' and Geraci's argument we should expand our
understanding of expressive conduct to include taking, or attempting to take, a photograph.
A. Fields and Geraci offer no factual basis for customary expressive conduct
required for a First Amendment retaliation claim.
To prevail on their First Amendment retaliation claim, Fields and Geraci must prove "(1)
each engaged in constitutionally protected conduct; (2) defendant officials took adverse action
sufficient to deter a person of ordinary firmness from exercising constitutional rights; and (3) the
constitutionally protected conduct was a 'substantial or motivating factor' in the decision to take
adverse action against the plaintiff." 26
Fields' and Geraci's alleged "constitutionally protected conduct" consists of observing
and photographing, or making a record of, police activity in a public forum. 27 Neither uttered
any words to the effect he or she sought to take pictures to oppose police activity.

Their

particular behavior is only afforded First Amendment protection if we construe it as expressive
conduct. 28

Because we find this issue dispositive on all of Plaintiffs' First Amendment

retaliation claims, we first address whether Fields' and Geraci's conduct is constitutionally
protected activity under prevailing precedent.

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We analyze Fields' and Geraci's conduct mindful of the Supreme Court's admonition
"[w]e cannot accept the view that an apparently limitless variety of conduct can be labeled
'speech' .... " 29 "[I]t is the obligation of the person desiring to engage in assertedly expressive
conduct to demonstrate that the First Amendment even applies. " 30 "Expressive conduct exists
where 'an intent to convey a particularized message was present, and the likelihood was great
that the message would be understood by those who viewed it. "' 31 "[T]his is a fact-sensitive,
context-dependent inquiry, and ... the putative speaker bears the burden of proving that his or
her conduct is expressive." 32
As the Supreme Court explained in Texas v. Johnson, we recognize expressive conduct in
the areas of picketing, armband-wearing, flag-waving and flag-burning. 33 "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.' " 34 In addition, "context
is crucial to evaluating an expressive conduct claim because 'the context may give meaning to
the symbol' or act in question. " 35 The conduct must be direct and expressive; we cannot be left
guessing as to the "expression" intended by the conduct.
Applying this standard, we conclude Fields and Geraci cannot meet the burden of
demonstrating their taking, or attempting to take, pictures with no further comments or conduct
is "sufficiently imbued with elements of communication" to be deemed expressive conduct.
Neither Fields nor Geraci direct us to facts showing at the time they took or wanted to take
pictures, they asserted anything to anyone.

There is also no evidence any of the officers

understood them as communicating any idea or message.

6

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As in Traster and Tenafly, we find Fields and Geraci offered nothing more than a "bare
assertion" of expressive conduct. Because this bare assertion falls short of their burden of proof
following discovery, Fields and Geraci cannot proceed on a First Amendment retaliation claim
under our customary analysis.
B. Expanding "expressive conduct" to include "observing and recording."
Fields and Geraci essentially concede they spoke no words or conduct expressing
criticism of the police before or during their image capture. They instead want to persuade us
"observing" and "recording" police activity is expressive conduct entitled to First Amendment
protection as a matter of law.

In their view, observing is a component of "criticizing" and

citizens may engage in speech critical of the government. We find no controlling authority
compelling this broad a reading of First Amendment precedent.

a. Guidance in the Third Circuit.
Our Court of Appeals recognizes "videotaping or photographing the police in the
performance of their duties on public property may be a protected activity. "36 Quoting Gilles v.

Davis, our Court of Appeals in Kelly v. Borough of Carlisle stated, "more generally, photography
or videography that has a communicative or expressive purpose enjoys some First Amendment
protection." 37 While acknowledging activities observing and recording the police may be
protected, our Court of Appeals has never held speech unaccompanied by an expressive
component is always afforded First Amendment protection. 38 The Court of Appeals for the
Third Circuit's pronouncement in Kelly, stating videotaping police officers may be protected
activity, together with our reading of these district court cases, compels us to apply a similar
traditional First Amendment analysis when assessing whether speech or conduct may be afforded

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constitutional protection, inquiring whether the activity is "expressive" or otherwise "critical" of
the government.
Our Court of Appeals discussed the purported "right" to videotape officers most
recently in its non-precedential opinion in True Blue Auctions v. Foster, 39 where plaintiff
videotaped a private auction and police ordered him to remove an auction sign. Plaintiff claimed
the police violated his First Amendment rights because they "threatened to arrest" him if he
continued to videotape them. Our Court of Appeals affirmed the district court's order granting
officers' qualified immunity because at the time of the alleged incident there was "no clearly
established constitutional right to videotape the officers without threat of arrest." 40 In 2013, the
court of appeals recognized "our case law does not clearly establish a right to videotape police
officers performing their official duties." 41 No Third Circuit case since True Blue Auctions holds
there is a blanket First Amendment right to videotape or photograph officers.
Following Kelly v. Borough of Carlisle, several district courts in this circuit similarly
contemplate a constitutional right to observe and record may exist in certain circumstances, but
none has so held when there is an absence of protest or criticism. Judge Dalzell in Fleck v.
Trustees of Univ. of Pennsylvania granted summary judgment to defendant officers on plaintiffs'

claim officers violated their First Amendment rights when seizing a video camera after plaintiffs
allegedly refused to shift the camera away from officers' faces after being ordered to do so. 42
Judge Dalzell acknowledged "the right to record matters of public concern is not absolute" and
consistent with True Blue confirmed, albeit in the context of qualified immunity, "our case law
does not clearly establish a right to videotape police officers performing their official duties."
Judge McHugh in Gaymon v. Borough of Collingdale 43 rejected qualified immunity
where plaintiff videotaped police while verbally protesting police harassing her husband during

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an arrest. "It is indisputable that 'the First Amendment protects a significant amount of verbal
criticism and challenge directed at police officers.' In fact, the Supreme Court has gone so far as
to say that 'the freedom of individuals verbally to oppose or challenge police action without
thereby risking arrest is one of the principal characteristics by which we distinguish a free nation
from a police state:'" 44
Fields and Geraci direct us to Judge Bartle's holding in Robinson v. Fetterman 45 and
Judge Yohn's holding in Montgomery v. Killingsworth 46 to argue the right to observe and record
is protected by our First Amendment regardless of context. We find no inherent conflict between
these cases and our decision today.
In Robinson, plaintiff expressed displeasure with the police's method of inspecting trucks
on a highway. He contacted his state representative to express his opinion, and inquire about his
rights to videotape. By all accounts, Robinson's activities were expressive from the start. On
two occasions, police officers approached and investigated Robinson. Videotaping in
conjunction with an intent to chronicle or criticize the alleged unsafe manner in which officers
inspected trucks on a state roadway is "speech" critical of the government, as Judge Bartle
concluded in that case. Based on the particular facts gleaned during the bench trial in Robinson,
Judge Bartle entered judgment for the plaintiff on his First Amendment retaliation claim, holding
an individual observing and videotaping for the stated purpose of challenging or protesting
police conduct is expressive conduct entitled to First Amendment protection. 47
Judge Yohn's cogent and exhaustive analysis in Montgomery v. Killingsworth applies a
similar test for assessing conduct protected by the First Amendment.

48

As Judge Yohn observed

last year, "Peaceful criticism of a police officer performing his duties in a public place is a
protected activity under the First Amendment." 49

9

Judge

Yohn

noted,

"this

protection,

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however, is not absolute." 50 Quoting the Supreme Court in Colten v. Kentucky, 51 and as it
relates to Fields, Judge Yohn found "conduct in refusing to move on after being directed to do so
was not, without more, protected by the First Amendment. " 52
Because Fields and Geraci do not adduce evidence their conduct may be construed as
expression of a belief or criticism of police activity, under governing Supreme Court or Third
Circuit precedent we do not find they exercised a constitutionally protected right for which they
suffered retaliation.

This is fatal to their First Amendment retaliation claim. 53 We find the

citizens videotaping and picture-taking in Montgomery, Gaymon, Fleck and even Robinson all
contained some element of expressive conduct or criticism of police officers and are patently
distinguishable from Fields' and Geraci's activities.
Each situation remains subject to analysis based on the unique set of facts presented.
Police officers remain limited by the Fourth Amendment proscriptions including false arrest,
unreasonable search and excessive force in all situations, including those involving videotaping
and photography.
b. Guidance from other authorities.

We recognize courts outside the Third Circuit and at least one noted commentator have
found observing and photographing police activity without any criticism of the government fall
within the realm of First Amendment protected activity. While we understand these opinions,
the present law in this Circuit does not recognize a First Amendment right to observe and record
without some form of expressive conduct and photographing police is not, as a matter of law,
expressive activity.
Several circuits analyzing this identical issue have interpreted activities involving citizens
observing and recording police more broadly. In Smith v. City of Cumming54 , the Eleventh
Circuit found citizens had a First Amendment right, subject to reasonable time, manner and place
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restrictions, to photograph or videotape police, because in their view "the First Amendment
protects the right to gather information about what public officials do on public property." 55
Drawing an analogy to the line of cases permitting journalists a First Amendment right to access
information for news gathering, and relating a paramount First Amendment interest in promoting
free discussion of governmental affairs and to prevent corruption, the Courts of Appeals for the
First Circuit and Ninth Circuit have similarly held citizens photographing or observing official
conduct is merely information gathering, similar to protections afforded to news sources, which
is a necessary step in the process of expressing a right to criticize or challenge government
behavior. 56
Most recently, in Garcia v. Montgomery County, Maryland, 57 the district court held a
photojournalist had "a constitutional right to video record public police activity" but ultimately
concluded the right was not clearly established at the time of the incident and found the officers
entitled to qualified immunity Interpreting the First Amendment in a broad manner, the court
reasoned,
[R]ecording governmental activity, even if that activity is not immediately
newsworthy, has the potential to prevent government abuses through scrutiny
or to capture those abuses should they occur. As [plaintiff] stated, recording
police activity enables citizens to 'keep them honest,' an undertaking
protected by the First Amendment. 58
We also recognize commentary suggesting image capture before the decision to transmit
the image is, as a matter of law, expressive conduct. 59 While we appreciate Professor Kreimer's
analysis as it relates to shared images, or an intent to share images, Fields and Geraci do not
suggest they intended to share their images immediately upon image capture. Geraci wanted to
observe only and Fields took a picture of an "interesting" and "cool" scene.

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We find these authorities are inapposite.

We need not apply a qualified immunity

standard as we do not find a right ab initio. 60 Neither Fields nor Geraci assert they engaged in
conduct "critical" of the government; both assert they were only "observing" police activity.
They are not members of the press. Each engaged in activity they personally described as nonconfrontational "observing" and "recording."

Unlike the situation contemplated by Kelly

involving critical or expressive conduct, there is no dispute Geraci attended the protest against
fracking intending to "observe" any interaction between the crowd and police. We do not find
Geraci's attempt to get a better look and possibly film protected speech the same as expressing or
criticizing police conduct. Geraci may have filmed a peaceful arrest of an otherwise unruly
protester. We do not find this conduct "expressive" simply because she attempted to film police
activity. We reach a similar conclusion as to Fields. Fields does not allege he engaged in speech
or expressive conduct critical of the police. Fields claims he was walking down the street and
stopped to take a picture of something interesting to him.
There is no contrary authority by the Supreme Court or our Court of Appeals holding a
citizen observing or recording police without criticism or challenge is engaging in the expressive
conduct necessary for First Amendment protection. As such, summary judgment will be granted
Defendants on Fields' and Geraci' s First Amendment retaliation claims.
III. ANALYSIS OF FOURTH AMENDMENT CLAIMS

We find sufficient evidence to deny summary judgment on the excessive force and false
arrest/imprisonment claims against the officers but grant summary judgment on Fields' claim for
malicious prosecution.

61

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A. Fields' claims against Sisca for false arrest and unreasonable search
will proceed to trial.
Fields claims Officer Sisca, in violation of the Fourth Amendment, conducted an
unlawful search which caused him to suffer injury. 62 Officer Sisca contends there is no evidence
to support Fields' claim anyone searched his phone, and summary judgment is warranted on the
Fields' claim. 63 If the non-moving party "fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and on which that party will bear the burden
at trial," summary judgment is appropriate. 64
We must consider Plaintiffs evidence and all reasonable inferences which may be drawn
from it, in the light most favorable to the non-moving party. 65 Fields' testimony constitutes
sufficient evidence from which a jury could find in his favor. It is not our role to weigh the
disputed evidence and decide which is more probative, or to make credibility determinations. 66
The disputed evidence must be resolved by a jury.

B. We grant summary judgment on Fields' malicious prosecution claim.
Defendants seek summary judgment on Fields' malicious prosecution claim.

A

constitutional claim for malicious prosecution stems from the Fourth Amendment and 1s
"intended to redress [ ] the deprivation of liberty accompanying prosecution, not prosecution
itself." 67 To prevail on a malicious prosecution claim under §1983, Fields must show (1) the
officers initiated a criminal proceeding; (2) the criminal proceeding ended in his favor; (3)
officers initiated the proceeding without probable cause; (4) officers acted maliciously or for a
purpose other than bringing Fields to justice; and, (5) the officers deprived Fields of liberty
consistent with the concept of seizure as a consequence of a legal proceeding. 68 Where plaintiff
fails to proffer evidence on any one of the five prongs, the malicious prosecution claim fails as a
matter of law. 69 The parties dispute the last element.
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The last element of a malicious prosecution claim requires Fields show "some
deprivation of liberty consistent with the concept of 'seizure"' as a consequence of a legal
proceeding. 70 Where the alleged deprivation of liberty is not "as a consequence of a legal
proceeding" it cannot give rise to a malicious prosecution claim. 71
Fields has no evidence Defendants deprived him of a liberty "as a consequence of a legal
proceeding." 72 The facts show Officer Sisca detained Fields, placing him in the police van for a
period of time before issuing a citation. Where arrest and custody occurred prior to initiation of
legal proceedings, the arrest "cannot be said to have been a seizure as a consequence of the
alleged malicious prosecution." 73 We deny summary judgment on Geraci's excessive force
claim.
C.

Geraci may proceed to trial on her excessive force claim.

Geraci claims Officers Brown, Barrow, Jones and Smith violated her Fourth Amendment
right to be free from excessive force. 74 Defendants Barrow, Jones and Smith each move for
summary judgment arguing there is no evidence of physical contact with Geraci. 75
To establish a claim for excessive force under the Fourth Amendment, Geraci must show
that a "seizure" occurred and it was unreasonable. 76 A seizure occurs when police restrain a
citizen through physical force or show of authority, and occurs only when a reasonable person
would have believed she was not free to leave a situation. 77
Barrow, Jones and Smith did not physically contact Geraci. The question is whether they
should have intervened. Police officers have a duty to protect a victim from another officer's use
of excessive force if there is a reasonable and realistic opportunity to intervene. 78 An officer is
only liable for failing to intervene if Geraci can show: (1) another officer violated her
constitutional rights; (2) the officer had a reason to believe that his colleague was committing a

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constitutional violation; and (3) he had a reasonable and realistic opportunity to intervene. 79
Officers only have an opportunity to intervene when excessive force is used in the officer's
presence or if the officer saw his colleague use excessive force and had time to intervene. 80
Geraci adduced evidence, through pictures, of officers near the scene. She adduced the
officers' admission they witnessed Officer Brown's conduct toward her. 81

We cannot make

factual findings as to whether these officers knew of the extent of Officer Brown's conduct
towards Geraci and had a reasonable and realistic opportunity to intervene.
Viewing the adduced evidence in her favor as we must at this stage, Geraci directs us to
sufficient facts from which a jury could conclude Officers Barrow, Smith and Jones failed to
intervene in Officer Brown's alleged use of excessive force.
IV.

CONCLUSION

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. Absent 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. 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.
We also find Fields and Geraci adduced competent evidence precluding summary
judgment under the Fourth Amendment challenging Officer Sisca's arrest and search and seizure
of Fields' cell phone and for the officers' excessive force upon Geraci. Fields did not adduce
evidence to sustain a malicious prosecution claim. At oral argument, Plaintiffs conceded a lack
of supervisory liability against the City for their arrest, search, seizure and excessive force
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claims. In the accompanying Order, we partially grant the Defendants' motion for summary
judgment and trial will proceed on: Fields' claims for unreasonable search and false arrest
against Officer Sisca and Geraci's claim for excessive force against the four officers.

1

The Court's Policies require a Statement of Undisputed Material Facts ("SOF") and Appendix
("App.") filed in support of a summary judgment motion. SOF if28-29.
2

App. 32

3

App. 56

4

App. 35

5

App. 36

6

App. 37

7 Id.
8

App. 33

9

App. 41

10

SOF if34.

11

SOF if35.

12

App. 9

13

Id.

14

SOF if36-37; Compl. ifl2.

1s

App. 9

16

App. 539, 719-20, 844, 910

17

SOF if38.

18

SOF if40-41, App. 32-33.

19

SOF if45; Compl. if34-35.

20

SOF if44; App. 9
16

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21

SOP ~45; Compl. ~~44, 49.

22

App. 11

23

App. 12

24

At the parties' request we consolidated the cases for discovery, dispositive motions and
possibly trial.
25

Monell v. Dep't ofSoc. Servs. of City of New York, 436 U.S. 658, 659 (1978).

26

Rauser v. Horn, 241 F.3d 330, 333-334 (3d Cir.2001) (quoting Mount Healthy Bd. of Ed. v.
Doyle, 429 U.S. 274 (1977)); Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir.2006).
27

Neither Fields nor Geraci allege or offer evidence their conduct expressed criticism of police
activity; each maintain the mere act of observing and recording is entitled to First Amendment
protection. The act of "observing and recording," Plaintiffs contend, is a fundamental
constitutional right protected by the First Amendment.
28

Heffernan v. City of Paterson, 777 F.3d 147, 152 (3d Cir. 2015) (speech need not be a message
communicated verbally because "expressive conduct is protected under the First Amendment.")
cert. granted, -- U.S.--, 136 S. Ct. 29 (2015).
29

United States v. O'Brien, 391 U.S. 367, 376 (1968); see also Texas v. Johnson, 491 U.S. 397,
404 (1989); Spence v. Washington, 418 U.S. 405, 409 (1974).
30

Tenafly Eruv Ass 'n, Inc. v. Borough of Tenafly, 309 F.3d 144, 161 (3d Cir. 2002) (citing Clark
v. Community for Creative Non-Violence, 468 U.S. 288, 293, n.5 (1984)).
31

Heffernan, supra at 152 (quoting Texas v. Johnson, 491 U.S. at 404).

32

Id. (quoting Tenafly, 309 F.3d at 161).

33

Johnson, 491 U.S. at 404.

34

Tenafly, 309 F.3d at 158 (quoting Spence v. Washington, 418 U.S. at 409-10); Traster v.
Pa.State Dept. of Corrections, 65 F.3d 1086, 1090 (3d Cir. 1995)).
3s

Id.

36

Kelly v. Borough of Carlisle, 622 F.3d 248, 260 (3d Cir. 2010) (quoting Gilles v. Davis, 427
F.3d 197, 204 n.14 (3d Cir. 2005) (citing Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th
Cir. 2000)).
37

Id.

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38

These opinions discuss constitutional rights in the context of evaluating qualified immunity to
police officers. Kelly, supra, 622 F.3d at 260 ("we have not addressed directly the right to
videotape police officers"); Gilles 427 F.3d at 221, n. 14 ("videotaping or photographing the
police in the performance of their duties on public property may be a protected
activity ... photography or videography that has a communicative or expressive purpose enjoys
some First Amendment protection."); Whiteland Woods v. Township of W Whiteland, 193 F.3d
177, 183 (3d Cir. 1999)("[Plaintiff] does not allege [defendant] interfered with its speech or other
expressive activity. Rather, the alleged constitutional violation consisted of a restriction on
[plaintiffs] right to receive and record information."). See also Snyder v. Daugherty, 899
F.Supp.2d 391, 413-14 (W.D.Pa. 2012)("There is no clearly established, 'unfettered'
constitutional right, in generalized terms, under the First, Fourth, or any other Amendment, to
record police officers in the performance of their duties."); Pomykacz v. Borough of West
Wildwood, 438 F.Supp.2d 504, 513, n. 14 (D.N.J. 2006)("An argument can be made that the act
of photographing, in the abstract, is not sufficiently expressive or communicative and therefore
not within the scope of First Amendment protection - even when the subject of the photography
is a public servant.").
39

True Blue Auctions v. Foster, 528 F. App'x 190 (3d Cir. 2013).

40

Id. at 192.

41

Id. at 193.

42

Fleck v. Trustees of Univ. of Pennsylvania, 995 F. Supp. 2d 390, 403 (E.D. Pa. 2014)

43

Gaymon v. Borough of Collingdale, No. 14-5454, 2015 WL 4389585 (E.D. Pa. July 17, 2015)

44

Id. (quoting City of Houston, Texas v. Hill, 482 U.S. 451, 461 (1987))(intemal citations
omitted).

45

Robinson v. Fetterman, 378 F. Supp. 2d 534 (E.D. Pa. 2005).

46

Montgomery v. Killingsworth, No. 13-256, 2015 WL 289934 (E.D. Pa. Jan. 22, 2015).

47

Robinson, 378 F. Supp. 2d at 541.

48

In Montgomery v. Killingsworth, Judge Yohn analyzed these consolidated cases under a
qualified immunity rubric and ultimately found no "clearly established" right to observe and
record police, leaving the question to be resolved and decided by the court of appeals. In line
with the guidance from the Third Circuit, these cases held plaintiffs' expressive conduct does fall
within these protections, but activity not deemed 'expressive' probably did not. Ultimately, the
court did not have to decide whether the expressive conduct was constitutionally protected
because defendants, all individual officers, were given qualified immunity. The City of
Philadelphia was dismissed by stipulation of the parties.
49

Montgomery, supra at *6 (citing City of Houston).
18

 Case 2:14-cv-05264-MAK Document 44 Filed 02/19/16 Page 19 of 21

50

Id. at *7 (citing Chaplinsky v. State ofNew Hampshire, 315 U.S. 568, 572 (1942)).

51

Colten v. Kentucky, 407 U.S. 104, 107 (1972).

52

Montgomery, supra at *7.

53

See e.g. Damiano v. Scranton Sch. Dist., No. 13-2635, 2015 WL 5785827, at *14 (M.D. Pa.
Sept. 30, 2015)(summary judgment warranted where plaintiffs did not allege or produce facts to
support a claim they engaged in First Amendment protected conduct).
54

Smith v. Cunning, 212 F.3d 1332, 1333 (1 lth Cir.2000)

ss Id.

at 1333.

56

Glik v. Cunniffe, 655 F.3d 78 (1st Cir.2011); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th
Cir.1995). 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. Affirming the district court and rejecting officers' claim of qualified
immunity, the court of appeals held qualified immunity did not apply to officers because it was
clearly established, "gathering information about government officials in a form that can readily
be disseminated to others serves a cardinal First Amendment interest in protecting and promoting
'the free discussion of governmental affairs."' Id. at 82 (citing Mills v. Alabama, 384 U.S.214
(1966)). In Fordyce, the court mentioned a "First Amendment right to film matters of public
interest," although the right was not clearly established for purposes of qualified immunity
because state privacy laws prohibiting electronic recording without permission did not clearly
impact these rights. Notably, the plaintiff in Fordyce claimed he was recording a public protest
for a local news station. Recently, in Adkins v. Limtiaco, the court of appeals found a clearly
established constitutional right to photograph the scene of an accident during a police
investigation. 537 F. App'x 721 (9th Cir. 2013) (citing City of Houston v. Hill, 482 U.S. 451,
461 (1987)).
57

Garcia v. Montgomery County, Maryland, No. 12-3592, 2015 WL 6773715 (D.Md. Nov. 5,
2015).
58

Id. at *8.

59

Seth F. Kreimer, "Pervasive Image Capture and the First Amendment: Memory, Discourse,
and the Right to Record," 159 U.Pa.L.Rev. 335, 377 (2011).
60

As our Court of Appeals noted today in reviewing qualified immunity, we must initially ask
"[w]hat is the right here?" Mammaro v. New Jersey Div. of Child Prat. and Permanency, No. 151448, slip op. at 9 (3d Cir. Feb. 19, 2016)

19

 Case 2:14-cv-05264-MAK Document 44 Filed 02/19/16 Page 20 of 21

61

Fields' and Geraci's counsel withdrew any Fourth Amendment supervisory liability claim
during oral argument. Accordingly, we do not consider whether the City may be liable for
failure to train and/or supervise officers in responding to incidents where citizens observed,
recorded or photographed them in a manner violating the Fourth Amendment.
62

Fields also claims Officer Sisca violated his Fourth Amendment right to be free from arrest
and imprisonment without probable cause. Officer Sisca concedes there are disputed facts for
the jury to resolve and does not seek summary judgment on these claims.
63

A party may meet its summary judgment burden by "pointing out... there is an absence of
evidence to support the nonmoving party's claims." Cichonke v. Bristol Twp., No. 14-4243, 2015
WL 8764744, at *8 (E.D. Pa. Dec. 14, 2015) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986).
64

Celotex, 477 U.S. at 322.

65

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); Tigg Corp. v. Dow Corning Corp., 822 F.2d
358, 361 (3d Cir. 1987).
66

Boyle v. Cty. ofAllegheny, 139 F.3d 386, 393 (3d Cir. 1998) (citing Petruzzi's !GA Supermkts.,
Inc. v. Darling-Del. Co. Inc., 998 F.2d 1224, 1230 (3d Cir. 1993)).
67

White v. Glenn, No. 13-984, 2014 WL 5431200, at *2 (E.D. Pa. Oct. 27, 2014) (citing DiBella
v. Borough of Beachwood, 407 F.3d 599, 603 (3d Cir.2005)).
68

Johnson v. Knorr, 477 F.3d 75, 81-82 (3d Cir.2007); Blythe v. Scanlan, No. 14-7268, 2015
WL 4743786, at *3 (E.D. Pa. Aug. 11, 2015); see also Estate of Smith v. Marasco, 318 F.3d 497,
521 (3d Cir. 2003).

69

Domenech v. City of Phila., No. 06-1325, 2009 WL 1109316, at *9 (E.D.Pa. Apr.23, 2009),
affd, 373 F. App'x 254 (3d Cir.2010).
70

Gallo v. City of Phila., 161 F.3d 217, 222 (3d Cir.1998), as amended, (Dec. 7, 1998).

71

White, supra at *2 (no deprivation of liberty consistent with seizure in violation of Fourth
Amendment where only in custody prior to initiation of legal proceedings).

72

Johnson, 477 F.3d at 81-82 (emphasis added); see also Gallo, 161 F.3d at 222.

73

White, supra at *3-4; see also Lopez v. Maczko, No. 07-1382, 2007 WL 2461709, at *3
(E.D.Pa. Aug. 16, 2007) (no facts supporting seizure as a consequence of legal proceeding where
only seizure alleged is arrest which occurred prior to initiation of criminal proceedings); Luck v.
Mount Airy No. 1, LLC, 901 F.Supp.2d 547, 556 (M.D.Pa.2012) (no deprivation of liberty as a
result of a legal proceeding where plaintiffs "only recite facts pertaining to their seizure and
arrest prior to the institution of a legal proceeding.").
20

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74

In certain circumstances, allegations of excessive force may give rise to a Fourteenth
Amendment substantive due process claim. These situations generally involve "egregious"
"brutal" "offensive" and arbitrary government action which "shocks the conscience." She does
not argue, and we do not interpret, her excessive force claim is a Fourteenth Amendment
substantive due process claim.
75

Officer Brown concedes there are disputed facts on this claim which must be resolved by a
jury, and does not move for summary judgment on this claim.
76

Estate ofSmith v. Marasco, 318 F.3d 497, 515 (3d Cir.2003).

77

Graham v. Connor, 490 U.S. 386, 395 n. 10 (1989); United States v. Mendenhall, 446 U.S.
544, 553-54 (1980).

78

Smith v. Mensinger, 293 F.3d 641, 651 (3d Cir.2002) (citations omitted).

79

Id. at 650-51; see also Knox v. Doe, 487 F. App'x 725, 728 (3d Cir.2012).

80

Bean v. Ridley Twp., No. 14-5874 2015 WL 568640, *11 (E.D.Pa. Feb. 10, 2015); Bryant v.
City of Philadelphia, No. 10-3871 2012 WL 258399, *8 (E.D.Pa. January 27, 2012); Sullivan v.
Warminster Twp., 765 F.Supp.2d 687, 701-02 (E.D.Pa.2011).

81

App. 735, 848, 911.

21