ACLU of Pa. files first in series of suits over Phila. police arrests relating to cellphone recordings of officers

By Jon Campisi | Jan 17, 2013

The American Civil Liberties Union of Pennsylvania Wednesday filed what it says is the

first in an expected series of federal lawsuits arguing that Philadelphia police officers routinely manufacture criminal charges in retaliation against people who use their cellphones or other electronic devices to record police activity.

The civil rights organization filed suit at the U.S. District Court in Philadelphia on behalf of Christopher Montgomery, a Philadelphia man arrested in early 2011 for using his cellphone to record an arrest made by city police.

According to the complaint, Montgomery and a friend were at the Market-Frankford subway station near City Hall in downtown Philadelphia on Jan. 23, 2011, when the two observed a verbal altercation between a group of young people and an older individual in the area.

As the crowd moved onward, Montgomery followed, using his smartphone to audio and video record the encounter between the arriving cops and the individuals they were arresting, because, as the lawsuit states, the plaintiff wanted to observe the police officers’ activity, something he is allowed to do under the Constitution.

When Montgomery was asked to step back from the crowd, so the police could do their job, he complied, the lawsuit states, although he continued to record the encounter.

At one point, an officer identified as David Killingsworth, who is listed as a co-defendant in the complaint, motioned to Montgomery’s cellphone and said, “put that away, stop recording.”

Montgomery was then grabbed by Killingsworth and placed under arrest, the lawsuit states.

While Montgomery was sitting in a jail cell, the suit claims, officers retrieved the plaintiff’s cellphone and deleted the video depicting the altercation.

Montgomery was subsequently issued a summary citation for disorderly conduct, to which he was found guilty in community court, although the plaintiff appealed his conviction.

In late March 2011, Montgomery, this time represented by legal counsel, was found not guilty of the criminal charges.

“Mr. Montgomery’s recording of the police undertaking their official duties is protected by the First Amendment to the United States Constitution, and therefore cannot be the basis for any criminal action, including disorderly conduct,” the lawsuit states. “Mr. Montgomery’s unlawful arrest was a direct result of the policies, practices, and customs of defendant City of Philadelphia.”

Before the Montgomery incident, the lawsuit states, Philadelphia police officers routinely instituted criminal proceedings against civilians who observed or recorded police activities.

“Officers instituted these proceedings in order to intimidate civilians so that they do not continue to monitor and record police behavior, and in retaliation against civilians’ constitutionally protected activity,” the lawsuit states.

The lawsuit mentions the incident previously reported by the Pennsylvania Record involving Mark Fiorino, a gun rights advocate who was stopped and threatened, but not initially charged with a crime, merely for openly carrying his firearm on the city streets, which is legal under Pennsylvania law.

Fiorino was later charged with reckless and disorderly conduct, but only after a Youtube video surfaced that involved Fiorino’s audio recording of the incident.

He was later found not guilty of the criminal charges in Philadelphia’s Municipal Court.

In September 2011, the suit reads, Police Commissioner Charles Ramsey issued a departmental memorandum that was aimed at removing “any confusion as to duties and responsibilities of sworn personnel when being photographed, videotaped or audibly recorded while conducting official business or while acting in an official capacity in any public place,” and instructing Philadelphia officers to allow themselves to be recorded.

Since that time, however, there have been many other incidents of Philly cops threatening or arresting Philadelphians who watch or record the actions of on-duty police officers.

“Indeed, dozens of such incidents have been reported to the media and to Philadelphia civil rights groups,” the suit states.

The ACLU of Pa. stated in a news release that Montgomery, the plaintiff in the present case, hopes his lawsuit will “confirm the First Amendment right to observe and record police.”

“As the role of the citizen journalist increases in these tense situations, it’s crucial that everyone holds up their recording devices and holds the powerful accountable,” Montgomery was quoted as saying in the press release.

Jonathan Feinberg, an attorney from the Philadelphia civil rights law firm Kairys, Rudovsky, Messing & Feinberg, co-counsel on the Montgomery case, said the reason for these types of lawsuits is that “this is not an isolated incident.”

“The Philadelphia Police Department has a long-standing practice of turning a blind eye to the actions of its officers who routinely violate the right to observe and record officers in public,” Feinberg was quoted as saying in the ACLU news release.

In the released statement, ACLU of Pa. Executive Director Reggie Shuford stated, “When George Holliday recorded the beating of Rodney King, he taught us that ordinary people can use ordinary resources to fight police misconduct. It is essential that we preserve the right – and the tools – for holding our public officials accountable for their behavior.”

While the Montgomery lawsuit was filed in federal court, and contains federal causes of action such as First Amendment Retaliation, it also contains state law claims such as false arrest and false imprisonment, illegal search and seizure and malicious prosecution.

A Philadelphia-area attorney previously told the Pennsylvania Record that state court precedent shows that recording police without their knowledge in Pennsylvania is, in fact, legal, and does not violate the commonwealth’s wiretapping law.

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