                                                 NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   _____________

                        No. 12-2996
                       _____________

                TRUE BLUE AUCTIONS;
               WAYNE A. DREIBELBIS, JR.,

                                   Appellants

                              v.

               ROBERT SCOTT FOSTER;
KEVIN D. LEWIS, OFFICERS OF THE POLICE DEPARTMENT
             OF THE CITY OF FRANKLIN
                    ____________

       On Appeal from the United States District Court
           for the Western District of Pennsylvania
                     (No. 1-11-CV-00242)
       District Judge: Honorable Maurice B. Cohill, Jr.

      Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                       May 16, 2013

                       ____________

  Before: SMITH, FISHER, and CHAGARES, Circuit Judges.

                    (Filed: June 10, 2013)

                       ____________

                         OPINION
                       ____________
CHAGARES, Circuit Judge.

       True Blue Auctions, LLC (“True Blue”) and Wayne A. Dreibelbis, Jr. appeal the

District Court‟s dismissal of their complaint filed under 42 U.S.C. § 1983 against two

officers of the City of Franklin Police Department. For the reasons explained herein, we

will affirm.

                                              I.

       We write solely for the parties and will therefore recount only those facts that are

essential to our disposition. The amended complaint alleges that on October 16, 2009,

Dreibelbis was conducting an auction on private property in Franklin, Pennsylvania on

behalf of True Blue. While Dreibelbis was videotaping the auction, defendants Robert

Scott Foster and Kevin Lewis (the “officers”), ordered Dreibelbis to remove an auction

sign that was about seventy-five yards from the auction site. Dreibelbis left the video

camera on during the interaction (which took place on a public sidewalk), and the officers

told him he would be arrested if he did not stop videotaping them. Dreibelbis stopped

videotaping at that time, and also “curtailed some of his videotaping the rest of the

auction that day and the next day because he was concerned he would be arrested for

doing so.” Appendix (“App.”) 20.

       The plaintiffs filed suit alleging that in threatening to arrest Dreibelbis for

videotaping, the officers violated their First Amendment rights. The officers moved to

dismiss the amended complaint, arguing in part that they were entitled to qualified

immunity. The Magistrate Judge agreed, explaining in her Report and Recommendation

that “[g]iven the uncertainty in the case law and the lack of authority from the Third

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Circuit, this Court is unable to rule as a matter of law that there was a clearly established

right to videotape a police officer at the time Defendants instructed Plaintiff to stop

videotaping them.” App. 12. The District Court adopted the Report and

Recommendation as its opinion and dismissed the case. The plaintiffs now appeal.

                                             II.1

       The only issue we must determine on appeal is whether the District Court

correctly concluded that the officers were entitled to qualified immunity, and therefore

could not be subject to liability for damages under 42 U.S.C. § 1983. In determining

whether to apply qualified immunity, “we ask: (1) whether the facts alleged by the

plaintiff show the violation of a constitutional right, and (2) whether the law was clearly

established at the time of the violation.” Kelly v. Borough of Carlisle, 622 F.3d 248, 253

(3d Cir. 2010). In the process of determining whether a right was clearly established, we

“must consider the state of the existing law at the time of the alleged violation and the

circumstances confronting the officer to determine whether a reasonable state actor could

have believed his conduct was lawful.” Id.2 Thus, we must determine whether the

Magistrate Judge was correct to conclude that as of October 16, 2009, Dreibelbis had no

clearly established constitutional right to videotape the officers without threat of arrest.



1
  The District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have appellate
jurisdiction under 28 U.S.C. § 1291. We exercise plenary review of a district court‟s
order granting a motion to dismiss. Fowler v. UPMC Shadyside, 578 F.3d 203, 206 (3d
Cir. 2009).
2
  In 2009, the Supreme Court held that it is permissible for a district court to assess
whether the law is clearly established before deciding if a constitutional right has been
violated at all. Pearson v. Callahan, 555 U.S. 223, 236 (2009).
                                              3
       The Report and Recommendation relied principally on Kelly, a 2010 case

addressing an issue similar to the one we face today. In that case, a police officer pulled

over a car for a routine traffic stop. The plaintiff was riding in the passenger seat and

recorded the stop with a small handheld video camera held in his lap. 622 F.3d at 251.

The officer noticed the camera and then went back to the patrol car to call an assistant

district attorney to obtain advice on whether he could arrest Kelly for violation of the

Pennsylvania Wiretapping and Electronic Surveillance Control Act. After being advised

that an arrest was appropriate, the officer arrested Kelly. Id. at 252. Kelly brought

claims pursuant to 42 U.S.C. § 1983 under the Fourth and First Amendments. At the

outset, we explained that “[w]e have not addressed directly the right to videotape police

officers.” Id. at 260. We also reiterated our previous comment that “videotaping or

photographing the police in the performance of their duties on public property may be a

protected activity.” Id. (emphasis added in Kelly) (quoting Gilles v. Davis, 427 F.3d 197,

212 n.14 (3d Cir. 2005)). Though acknowledging that “[i]n determining whether a right

is clearly established, it is not necessary that the exact set of factual circumstances has

been considered previously,” id. at 259, we surveyed case law from various courts and

concluded that there was no clearly established right to videotape police officers during a

traffic stop. Id. at 262.

       First, the plaintiffs argue that even if Kelly held that there was no clearly

established right to videotape police officers during a traffic stop, there was nevertheless

a clearly established right to tape police officers on a public sidewalk during the course of

their duties. Pl. Br. 12-13 (citing Kelly, 622 F.3d at 262 (distinguishing other First

                                              4
Amendment cases based on inherently dangerous nature of traffic stops)).3 Even if the

distinction between traffic stops and public sidewalk confrontations is as meaningful as

the plaintiffs claim, such that Kelly is not dispositive, the plaintiffs are simply incorrect in

claiming that “[e]very court has ruled there is a First Amendment right to videotape

police in non-traffic stops situations in public forums.” Pl. Br. 23. Instead, as Kelly

clearly explained, courts have come to divergent conclusions on the issue.

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

addressed a situation in which a plaintiff had been arrested for videotaping state troopers

performing truck inspections. Noting that “[v]ideotaping is a legitimate means of

gathering information for public dissemination,” the court held that “there can be no

doubt that the free speech clause of the Constitution protected Robinson as he videotaped

the defendants.” Id. at 541.

       Yet district courts in our circuit have several times come to the opposite

conclusion. For instance, in Pomykacz v. Borough of West Wildwood, 438 F. Supp. 2d

504 (D.N.J. 2006), the plaintiff had been arrested for stalking after taking photographs of

town officials, and the court denied the defendants‟ summary judgment motion after

finding sufficient evidence that the photographs were taken based on public concern. Yet

in response to the plaintiff‟s “blanket assertion” that observation of public officials is

3
 The plaintiffs also devote much of their argument to the Kelly district court‟s opinion
entered after the case was remanded, see Kelly v. Borough of Carlisle, 815 F. Supp. 2d
810 (M.D. Pa. 2011), arguing that unlike with a traffic stop, there is no reasonable
expectation of privacy on a public sidewalk. The argument is inapposite — because our
Court had already determined the First Amendment question, the district court‟s second
opinion addressed only the plaintiff‟s Fourth Amendment claim.

                                               5
protected by the First Amendment, “[t]he Court [did] not necessarily agree,” arguing 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.” Id. at 513 n.14 (also reiterating the

Court‟s statement in Gilles that videotaping “may be a protected activity”); 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.”).

       Thus, our case law does not clearly establish a right to videotape police officers

performing their official duties such that the officers here should have been on notice that

Dreibelbis had a First Amendment right to film them. Accordingly, the District Court

correctly concluded that the officers were entitled to qualified immunity.

                                             III.

       For the reasons explained above, we will affirm the judgment of the District Court.




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