Right to Record Government Employees Applies Beyond Just Police Officers

Start at Aguilar v. MoyerThe Magistrate Judge Martin C. Carlson, M.D., ruled Tuesday in favor of the petition. Pa.):

These facts were taken from plaintiff’s lawsuit, and we have to accept them as true in this motion for dismissal. Carlos Figueroa was Priscilla’s husband and called Water Authority on April 5, 2019. He attempted to reconnect the water supply to their house. Figueroa was told that there were no workers available for the restoration of the connection but he later saw Moyer, an employee at Water Authority, on the premises.

Figueroa asked Moyer if he “was there turn on the water,” and Moyer replied that he was only there to make sure the water doesn’t get turned on. Figueroa asked Moyer if he could turn on the water, and Moyer responded that he needed a “work order” in order to do this. Figueroa vented his frustration at Water Authority’s misrepresentation about its workers’ availability. After Moyer threatened to call police, he entered again the home of the couple.

Moyer still called Figueroa his son from his car, even though he had withdrawn from the conflict. Figueroa, Aguilar left their house to get into their vehicle. Moyer stepped out of his truck to photograph Aguilar and Figueroa as they sat in the vehicle.

Moyer made the phone call to his son ten minutes before his son arrived at his house in a cruiser police vehicle and sought Figueroa’s identity. Aguilar recorded the interactions between Figueroa (Moyer’s son) and Figueroa using Figueroa’s cell phone. Figueroa declined to provide identification. Moyer’s son then “opened the car door, grabbed it”. [Figueroa]he was at his elbow, pulled him away and threw him to the ground. Figueroa offered to provide identification. Moyer’s son replied, “It is too late to do that now.”

In what plaintiff describes as an attempt to preserve his son’s police officer reputation, Moyer took Figueroa’s phone from Aguilar. Moyer then forced Aguilar away from Figueroa’s scene. Moyer carried Aguilar off, then returned to his car and placed his knees on Figueroa’s back as his son handcuffed the boy.

Aguilar filed suit based on, among others, the First Amendment. The court granted the case its final status:

At this stage of the proceedings, we cannot conclude that Moyer’s actions fell outside the color of law…. Moyer claims that he interacted with Aguilar to record her husband’s arrest. The complaint states that Moyer stated to Figueroa on the morning of the incident that he had been there “to check the water.” off.It would indicate that Moyer was there as an employee of the Water Authority.

Further, Moyer’s action—hitting the phone out of Aguilar’s hand—was intertwined with several other actions, including contacting police and interfering with the subsequent arrest by escorting Aguilar away and incapacitating Figueroa. Questions arise about Moyer’s use of his authority as an official to aid in arrests and whether his threat to police intervention was possible without his participation as a Water Authority employee. Indeed, on the pleadings alone, it is impossible to extricate one action—knocking the cell phone from Aguilar’s hands—from the totality of the circumstances of the entire incident. …

Moyer also claims qualified immunity under Aguilar’s First Amendment claim. Moyer is not entitled to qualified immunity at this point. Qualified immunity protects government officials against civil damages liability, unless they violate a constitutional or statutory right at the time the challenge was made. … An official’s conduct violates clearly established law when, “at the time of the challenged conduct, ‘[t]He is the contours [a]Right [are]At least sufficiently explicit’ to warrant that all’reasonable officials’ will agree. [have understood]He is violating that right by doing what he has done.” …

Since 2017, the Third Circuit has clearly defined individuals’ rights to record police activities. Check out Fields v. City of Philadelphia (3d Cir. 2017). (“Recording public police activity falls within the First Amendment right to access information”) To uphold this right FieldsThe judge ruled that

The First Amendment provides protection for the public’s rights to obtain information on public officials’ public actions. It protects the press, the self-expression and privacy of individuals but does not prohibit them. GovernmentLimiting the information available to the public is not an option.

The holding doesn’t distinguish between actions by law enforcement officers and government officials. FieldsOpenly, the court recognized that it was possible to apply its decision to any “government” official regardless of his or her position. Moyer’s assertion that there was no law that could put municipal water employees on notice of their potential liability to interfere with other’s rights to record cop activity is untrue. The actions of police officers are the focus of most Third Circuit cases. However, that does not mean they cannot be used to judge the behavior of any other person. Fields ruling from extending to an individual like Moyers, a municipal water employee who is alleged to have requested police intervention, then taken affirmative steps to prevent the recording of this police activity while actively intervening in this law enforcement encounter….