Citizens do not have a First Amendment right to film police officers absent a challenge to their conduct, a federal judge has ruled in a case of first impression in the Third Circuit.

U.S. District Judge Mark Kearney of the Eastern District of Pennsylvania issued his ruling in two consolidated cases filed against the city of Philadelphia by citizens whose cellphones were confiscated after they either photographed police activity or were barred from filming police activity.

Neither of the plaintiffs, Richard Fields nor Amanda Geraci, were filming the police conduct because they had a criticism or challenge to what they were seeing. For Fields, he thought the conduct was an interesting scene and would make for a good picture, Kearney said. And for Geraci, she was a legal observer trained to observe the police, Kearney said.

“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,” Kearney said.

“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.”

Kearney said he was not addressing whether the police’s conduct in either of the plaintiffs’ cases violated their Fourth Amendment rights, which Kearney said was up to a jury to determine. He was also not ruling on whether a First Amendment right to film police when the conduct was being challenged exists, Kearney noted.

“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,” Kearney said.

In Fields’ case, he stopped walking on a sidewalk along Broad Street in Philadelphia to take a picture on his cellphone of about 20 police officers standing outside a house party. Fields said he thought it would make for a good picture, according to the opinion. An officer then approached Fields and allegedly asked whether Fields liked “‘taking pictures of grown men.’” The officer asked Fields to leave and when he wouldn’t, the officer detained Fields, handcuffed him, emptied his pockets and took and searched his ­cellphone, Kearney said.

The officer did not delete the photo but cited Fields for obstructing the highway and obstructing public passages. He then returned the phone and released Fields, Kearney said. Fields is seeking damages for alleged retaliation for exercising his First Amendment right to “observe and record” police and for Fourth Amendment violations for unreasonable search and seizure and false arrest, Kearney said.

In Geraci’s case, she was a self-described “legal observer,” who after being trained at “Cop Watch Berkeley,” observed interaction between police and citizens during protests. She was at a public protest of hydraulic fracturing and carried a camera with her to videotape the scene. When police moved to arrest one of the protesters, Geraci tried to get closer to videotape the incident and was allegedly physically restrained from doing so by a police officer, Kearney said.

She did not videotape anything and the police released her and did not issue her a citation. She sued for First Amendment retaliation and an excessive force claim under the Fourth Amendment.

In order for both Fields and Geraci to win on their First Amendment retaliation claims, they had to show they engaged in constitutionally protected conduct, the defendant officials took adverse action to deter that conduct and the constitutionally protected conduct was a substantial or motivating factor in the officials’ decision to take adverse action, Kearney said.

Geraci and Fields can only survive the defendants’ motion to dismiss if their behavior was “expressive conduct,” Kearney said.

He pointed to U.S. Supreme Court precedent that found not all conduct can be labeled “speech,” and that protected conduct must be direct and expressive and not leave the courts guessing as to what was intended by the expression.

“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,” Kearney said. “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.”

Kearney declined Geraci and Fields’ suggestion to expand the definition of expressive to include observing and recording. He said no other court in the Third Circuit has found a right to record police officers absent some form of protest or criticism. Kearney said he declined to create that First Amendment right.

“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,” Kearney said.

While he dismissed Geraci and Fields’ First Amendment claims, he allowed the Fourth Amendment claims to proceed.

John Coyle of the City of Philadelphia Law Department represented the city in the case and declined to comment.

The American Civil Liberties Union of Pennsylvania represented the plaintiffs along with Jonathan Feinberg of Kairys, Rudovsky, Messing & Feinberg, John Grogan and Peter Leckman of Langer, Grogan & Diver and Seth Kreimer of the University of Pennsylvania Law School.

Mary Catherine Roper of the ACLU of Pennsylvania said the parties couldn’t appeal until the remaining claims are addressed, but she said she anticipates this case getting before the Third Circuit.

Roper said the practical implications of this decision come down to the fact that a police officer can’t know what the intended use of the image truly is.

“Anybody who makes a drawing, who takes a photograph, who makes a movie is literally creating a communication,” Roper said. “We think it is the act of creating that communication that is in itself an expressive act and is protected by the First Amendment, whether or not you intend to criticize or praise or hide your light under a bushel.”

This case is one of first impression because court decisions from the Third Circuit dating back to 2010 have granted qualified immunity to police officers based on the idea that it wasn’t clear whether videotaping of conduct was expressive conduct, Roper said. And while courts across the country have found videotaping police activity is protected, the courts in the Third Circuit have repeated the 2010 ruling that it isn’t clear whether that is protected ­conduct, Roper said.

She said there has been this loop of cases saying the same thing and the ACLU has been looking to get a case like Geraci and Fields’ before the Third Circuit since 2010.

Gina Passarella can be contacted at ­215-557-2494 or Follow her on Twitter @GPassarellaTLI.

(Copies of the 21-page opinion in Geraci v. City of Philadelphia and Fields v. City of Philadelphia, PICS No. 16-0254, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)