By Steve Tawa

PHILADELPHIA (CBS) — A federal court judge in Philadelphia today issued a split ruling on whether videotaping, photographing, or even merely observing police during police actions are constitutionally protected.

The American Civil Liberties Union of Pennsylvania filed five lawsuits on behalf of people in Philadelphia who were arrested while watching police in the course of their duties on public streets.

Judge William Yohn has ruled on three of them, two of which involve police officers who arrested people videotaping or photographing them in separate incidents in 2011.

The judge sided with the officers, writing they were “entitled to qualified immunity” because the First Amendment retaliation claims by the plaintiffs — the folks doing the videotaping or snapping the photos — had not been clearly established by prior case law in this region or by an overarching US Supreme Court ruling.

After the arrests, police commissioner Charles Ramsey put out a memo to his department that civilians have a right to videotape and photograph police, as long as they don’t interfere with an officer’s work.

ACLU lawyer Molly Tack-Hooper says two pending lawsuits from different incidents after that memo was issued in 2011 will help establish a citizen’s right to make sure police do not abuse their power.

“If we lose recording as a means to holding the police accountable, we risk sending the message to police that they’re above the law,” she said today.

Judge Yohn did rule in favor of a woman arrested for merely watching an officer interact with a semiconscious man.

“The judge reaffirms that the right to peacefully observe and even criticize the police performing their duties is clearly established,” Tack-Hooper says, adding that the right to follow an officer’s interaction with the public is “at the core of what the First Amendment is supposed to protect.”