10th Circuit Appeals Court Asked To Recognize A First Amendment Right To Record Cops

Legal Issues

from the better-late-than-ignored-indefinitely dept

It’s 2022 and yet we still haven’t received a nationwide blessing from the country’s top court that recognizes a First Amendment right to record public officials carrying out their public duties. In most cases, this involves cops, whose public activities are far more public than those of most other public servants.

For whatever reason, the Supreme Court has avoided establishing precedent, despite the omnipresence of cameras carried in the pockets of every cell phone owner in America. Cell phone video has proven instrumental in several police misconduct cases, perhaps most importantly in the George Floyd case, where a witness’ video helped secure a murder conviction for white police officer Derek Chauvin, who knelt on the unarmed Floyd’s neck for nearly 10 minutes, ending the arrestee’s life.

Maybe the nation’s top court is just waiting for a case that it likes. It’s had plenty of opportunities to affirm this right but has ignored them. The court that seems poised to overturn nearly 50 years of reproductive rights may just be waiting for a complicated case that allows it to tip its hat to the First Amendment while erecting all sorts of exceptions that make a right-to-record meaningless. The Supreme Court’s history as a protector of police, rather than the people they serve, makes it the worst option for the establishment of citizens’ rights. But it’s also the only option for people seeking precedent that would force every cop anywhere in the nation to play by the rules.

Until the Supreme Court decides to address this issue, it’s up to appellate courts to define precedent in the jurisdictions they preside over. This may create a legal patchwork, but at least the patches encompass several states, rather than small jurisdictions within certain states.

Right now, another appellate court is being asked to affirmatively recognize a right to record police officers. The Tenth Circuit Court of Appeals, which presides over Colorado, Kansas, Wyoming, Oklahoma, Utah, and New Mexico is handling a case involving a plaintiff who sued after Colorado police officers prevented him from recording a traffic stop. Here are the details, as reported by Colleen Slevin for the Minneapolis Star Tribune.

In the Colorado lawsuit, Abade Irizarry said he was filming a police traffic stop in the city of Lakewood when he claimed Officer Ahmed Yehia stood in front of the camera to block Irizarry from recording. The officer was on foot shined a flashlight into Irizarry’s camera and the camera of another blogger. Then Yehia left the two, got into his cruiser and sped the cruiser toward the two bloggers, the lawsuit said. The cruiser swerved before reaching the bloggers and they were not hit, according to the lawsuit.

The case was heard in federal court in Denver, where a magistrate judge sided with lawyers for Yehia and dismissed it last year, agreeing with Yehia’s lawyers, who contended the right to record police was not clearly established by the time of the incident in 2019.

Fortunately for Irizarry, he has more than usual rights groups in his corner. None other than the US Department of Justice is advocating on Irizarry’s behalf, arguing in favor of citizens’ right to record. The DOJ filed its own amicus brief last fall. Somehow, despite this being forwarded to the 10th Circuit nearly a year ago, it has yet to issue a ruling. It is just now hearing oral arguments on the case and, again, the DOJ is helping Irizarry out, arguing again that citizens have a right to record police officers.

Natasha Babazadeh, an attorney for the Justice Department’s Civil Rights Division, urged a three-judge panel from the court to rule in that filming police is a constitutional right and said there has been an increase in the number of lawsuits filed against police by people saying they could not record them in public. 

If the court sides with the plaintiff (and there seems to be little reason why it shouldn’t), this would establish a right to record in the Tenth Circuit, bringing the total to seven out of thirteen circuits that have established this right. The addition of this precedent would make it that much more difficult for the Supreme Court to continue ignoring an issue that has been steadily gaining momentum for the past two decades.

Unfortunately, the establishment of a right to record won’t do much for this plaintiff. It will probably be argued (successfully) that the lack of precedent did not make it clear officers could not directly impede the plaintiff’s efforts to record the traffic stop. This will probably still be the conclusion even though these police officers were on notice as early as 2014 that there was presumptive right to record based on precedent established in other circuits.

But courts should refuse to continue humoring this sort of law enforcement gamesmanship. On one hand, cops love to argue anything that can be seen by passersby has no inherent expectation of privacy. But on the other hand, they argue anything they do that can be witnessed by passersby is somehow more deserving of an expectation of privacy… or at least, a large number of restrictions that would allow officers to go about their business with no permanent (outside) record of their actions. This is de facto bullshit and should not be given credence by courts. Hopefully, the Tenth Circuit will establish this right going forward and, in doing so, force the Supreme Court to again take notice of an issue it has chosen to neglect.

Filed Under: 10th circuit, 1st amendment, abade irizarry, ahmed yehia, recording police