Appeals Court Extends Qualified Immunity To Cops Who Knew They Were Violating A Photographer's Rights

from the goodbye,-subjective.-hello,-far-more-favorable-objective! dept

"Training and expertise." Let's talk about it.

This boilerplate phrase shows up in search warrants and other law enforcement paperwork -- something used a preemptive defense for whatever rights violations might occur subsequent to these sworn statements. Using "training and expertise" as the foundation for a defense against lawsuits and accusations of bias is handy: it shows the officer was being "reasonable" and only engaged in a roadside fishing expedition or hurled a flashbang grenade into a toddler's crib because all of this "training" led officers to believe criminals often engage in [Action X], thus justifying law enforcement [Action Y].

But this blanket assertion is as useless and full of shit as this Tenth Circuit Appeals Court decision granting qualified immunity to officers who detained someone for recording them while they assaulted an arrestee. (h/t Brad Heath)

Remember, the "training" is important. When raising a qualified immunity defense, it's always helpful to point out you couldn't possibly have known better because you were "trained" to react to certain stimuli with certain actions. The "training" (along with the years of "expertise") sets the stage. A cop is only as good as their training. And if the training left something crucial out, how is a cop to know the rights violations they engaged in were rights violations? It's not like we expect cops to be legal experts, despite the fact their job is literally enforcing the law.

So, let's get to the legal contortions [PDF] the Tenth Circuit deploys to excuse cops who should not have been allowed to claim they didn't know better when they infringed on a citizen's First Amendment rights.

Here's how it starts:

After Plaintiff-Appellee Levi Frasier video-recorded Denver police officers using force while arresting an uncooperative suspect in public, one of the officers followed Mr. Frasier to his car and asked him to provide a statement on what he had seen and to turn over his video of the arrest. Mr. Frasier at first denied having filmed the arrest but ultimately showed the officer the tablet computer on which he had video-recorded it. He did so after an officer, Defendant-Appellant Christopher L. Evans, and four other members of the Denver Police Department, Officer Charles C. Jones, Detective John H. Bauer, Sergeant Russell Bothwell, and Officer John Robledo—the other Defendants-Appellants—surrounded him and allegedly pressured him to comply with their demand to turn over the video. Mr. Frasier contends that when he showed Officer Evans the tablet computer, the officer grabbed it from his hands and searched it for the video without his consent.

The right to record public officials is pretty well established. Even without cases on point, there's a strong presumption in favor of those who do the recording. But that doesn't matter in the Tenth Circuit -- at least not in this case.

There are multiple layers of bullshit here, starting with the lower court's decision, which inexplicably decided Frasier's First Amendment rights were less important than the officers' official excuse for their retaliatory behavior. It starts with the district court giving officers a pass for asking questions they really had no right to ask.

The district court, as relevant here, held that Officer Evans had reasonable suspicion to detain Mr. Frasier throughout their twenty-three-minute encounter because Mr. Frasier lied to him about filming the arrest, thereby potentially violating Colorado Revised Statutes § 18-8-111, which proscribes knowingly making certain false statements to the police.

If you're not being detained or suspected of committing any crime, the correct answer to questions from uniformed interlopers is "none of your fucking business." I don't know what law the lower court was reading, but nothing in this statute forbids lying to cops about recording. It covers false fire/emergency alarms, falsely reporting crimes, and falsely identifying yourself. There is nothing in this law that says lying to cops about the presence of a recording not linked to any other criminal offense is a violation of the statute.

Starting from the lower court's misinterpretation of a law that does not address anything that happened here, the Tenth Circuit moves on to even more disturbing findings.

Here's more detail on the "interaction" that led to this lawsuit. Fraiser recorded a traffic stop of a suspected drug dealer. Things appeared to be getting out of hand. Frasier began recording on his tablet. Despite supposedly being otherwise occupied with the detainment of a dangerous drug suspect, cops decided to approach the guy sitting harmlessly across the street recording the arrest.

Behold cops calling out cameras like they've spotted an actual weapon:

As the suspect finally let go of the sock, Sergeant Bothwell called out “Camera.”

A camera is obviously far less dangerous than a gun. Nevertheless, the officers approached Frasier and asked him to make a statement. Frasier hid his tablet in his car, presuming (not unreasonably!) officers would try to make the recording disappear. And that's where this went:

Officer Evans told Mr. Frasier that he needed a witness statement from him. When he asked Mr. Frasier whether he had video of the arrest, Mr. Frasier claimed that he did not. Then, Officer Evans pointed to the back seat of his patrol car and told Mr. Frasier, “Well, we could do this the easy way or we could do this the hard way.” Mr. Frasier thought that Officer Evans was threatening to take him to jail if he did not produce the video. The officer handed Mr. Frasier a witness statement form, which he proceeded to fill out. After Mr. Frasier provided a skeletal written account of what he had seen (one that omitted the officers’ use of force against the suspect and the screaming woman), Officer Evans wrote a series of questions on the form that he then had Mr. Frasier answer.

The questions concerned whether Mr. Frasier observed “the officers do anything inappropriate” or use any force after “they had the suspect in custody,” and whether he had taken (and still had) any “video footage of the incident.” Mr. Frasier responded in writing that he did not see any inappropriate police conduct, that the officers stopped using force as soon as they had the suspect in custody, and that he took only a Snapchat photo of the arrest, which he no longer had a copy of because “Snapchat removes [footage] as soon as you send [it].” Mr. Frasier’s answers were all lies; he admitted that he lied on the police form because he was afraid that if he told the truth he “would have been incarcerated and the video that [he] took would be taken away.”


Mr. Frasier retrieved his tablet computer and showed it to Officer Evans. He and Officer Evans “ducked behind the open hatchback of a nearby SUV,” where they “were mostly hidden from view.” Officer Evans grabbed the tablet computer out of Mr. Frasier’s hands and began to search for the video of the arrest, asking him where it was. Mr. Frasier told Officer Evans that he could not search his computer without a warrant, but Officer Evans held onto it for thirty to forty-five seconds. While searching through it, Officer Evans called back over his shoulder, “I don’t see the video in here. I can’t find it.” An unidentified officer responded, “As long as there’s no video, it’s okay.” Officer Evans then handed the tablet back to Mr. Frasier.

Hey, that's pretty cool. Cops can grab witnesses and demand they answer -- in front of them -- whether or not they felt officers engaged in excessive force or misconduct. How's that for coercion? I sincerely hope the Denver PD isn't using the results of these involuntary polls to claim it's engaging in better, more respectful policing. That data is beyond useless.

It's hard to believe it gets worse than this but it does. The district court, despite some early missteps, came to the correct conclusion: this was a violation of Frasier's rights. Even though it concluded there was no clearly-established right to record police officers in this district in 2014 (when the incident occurred), it did say the Denver PD officers should have known they were violating rights when they went after the person recording them. Why? Because they had received training that made it clear recording cops was protected activity.

The Tenth Circuit Appeals Court, however, thinks training is worth less than circuit precedent, even though officers are always going to be far more familiar with PD training than on-point Appeals Court decisions. The district court dismissed the city from Frasier's lawsuit pointing specifically to the First Amendment training officers had received from the PD -- training that said citizens had a right to record them. Thus, it was clear the city wasn't at fault. The officers were adequately trained.

Adequate training means nothing, says the Tenth Circuit:

[T]he district court erred in concluding that the officers were not entitled to qualified immunity because they actually knew from their training that such a First Amendment right purportedly existed—even though the court had determined that they did not violate any clearly established right. There are two salient, independent grounds for concluding that the district court’s ruling was wrong. First, and perhaps most significantly, a defendant’s eligibility for qualified immunity is judged by an objective standard and, therefore, what the officer defendants subjectively understood or believed the law to be was irrelevant with respect to the clearly-established-law question. Second, judicial decisions are the only valid interpretive source of the content of clearly established law, and, consequently, whatever training the officers received concerning the nature of Mr. Frasier’s First Amendment rights was irrelevant to the clearly-established-law inquiry.

So, you can tell a cop it's a bad idea -- perhaps even a rights violation -- to screw with people recording police officers. Then the Appeals Court will come along and rule that cops only need to rely on court precedent -- something they're far less likely to be aware of than daily briefings and internal policy changes. What is "reasonable" for officers to know? The Tenth Circuit says it's only circuit precedent, no matter how esoteric. And it says this even when it says otherwise:

When government officials are performing discretionary functions, they will not be held liable for their conduct unless their actions violate “clearly established statutory or constitutional rights of which a reasonable person would have known.”

Is it "reasonable" for officers to believe department training that says going after people who record officers likely violates their rights? Or is it "reasonable" for officers to believe they can continue to violate rights until a court is actually willing to establish precedent that aligns with their training? The Tenth Circuit says only the latter is "reasonable." Training given to all officers is still somehow "subjective" knowledge, even though (1) all Denver PD officers received the training and (2) it was based on legal decisions pointing to a presumed First Amendment right to record police officers.

It is therefore “irrelevant” whether each officer defendant actually believed—or even in some sense knew—that his conduct violated a statutory or constitutional right—more specifically, the First Amendment. [...] The district court therefore erred in denying the officer defendants qualified immunity regarding Mr. Frasier’s First Amendment retaliation claim based on their subjective knowledge of Mr. Frasier’s purported First Amendment right to record them on the public street performing their duties.

And I guess that's how it works: we don't expect cops to be legal experts but I think it's fair to expect they should be cognizant of their training. And their training said going after people recording them was a good way to get sued. These cops did get sued. But it's the Appeals Court that's handing down unearned forgiveness for these acts, one that says it really doesn't matter what cops know or don't know when it comes to rights violations.

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Filed Under: 10th circuit, charles jones, denver police department, john bauer, john robledo, levi frasier, police, qualified immunity, recording police, russell bothwell

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  1. identicon
    Anonymous Coward, 5 Apr 2021 @ 12:13pm

    What is the next legal step for this? Because this ruling seems like total bullshit

    reply to this | link to this | view in thread ]

  2. identicon
    Baron von Robber, 5 Apr 2021 @ 12:16pm

    "We can't have the public video us breaking laws while we enforce laws we don't know much about!!"

    reply to this | link to this | view in thread ]

  3. identicon
    Historian, 5 Apr 2021 @ 12:27pm

    Ignorantia juris non excusat or ignorantia legis neminem excusa

    “Ignorance of the law is no excuse in any country. If it were, the laws would lose their effect, because it can always be pretended.” - Thomas Jefferson

    Ignorance is no excuse and neither is disobedience...

    reply to this | link to this | view in thread ]

  4. icon
    Stephen T. Stone (profile), 5 Apr 2021 @ 12:29pm

    “Qualified immunity” is pro-cop judicial activism.

    reply to this | link to this | view in thread ]

  5. identicon
    Kitsune106, 5 Apr 2021 @ 12:31pm

    Wait a second

    IF training and experience is meaningless, does that mean they can't rely on it for arrests and warrants? and to justify searches?

    reply to this | link to this | view in thread ]

  6. icon
    True (profile), 5 Apr 2021 @ 1:16pm

    off to scous with you

    Pretty sure SCOTUS has been clear on this before.. Guss they will have to say it again!

    reply to this | link to this | view in thread ]

  7. icon
    That One Guy (profile), 5 Apr 2021 @ 1:22pm

    Someone call the circus ...

    ... Seems some of their contortionists have escaped and are pretending, badly, to be judges.

    You can all too easily picture the aggravation and frustration that the court must have felt. I mean the police have been given training telling them not to do X and it's widely understood that X is not acceptable but the court can hardly rule against a goon in blue so they had to find some way of excusing them and letting them off the hook so they wouldn't face the ultimate enemy of american police: 'personal accountability'.

    That the result is such a festering mess, arguing that police can't be expected to remember their own training(talk about a horrifying argument, and one you can be sure will be flipped when that 'training' is used to justify an action) shows just how desperate the court was to find an excuse to not rule against the police, exposing either rampant cowardice or outright corruption, neither things you want to see in any judge.

    reply to this | link to this | view in thread ]

  8. icon
    That One Guy (profile), 5 Apr 2021 @ 1:25pm

    Re: off to scous with you

    If the person can find the money needed to appeal it, which is the kicker, as it does you no good to know that a higher court would almost certainly rule in your favor if you can't afford to appeal the current ruling.

    reply to this | link to this | view in thread ]

  9. icon
    That One Guy (profile), 5 Apr 2021 @ 1:27pm

    Re: Wait a second

    Oh you can be damned sure that 'training and experience' will be treated as infallible so long as it benefits cops, it's only when it might be used to condemn them that it'll be treated as unreasonable to expect them to remember their training.

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, 5 Apr 2021 @ 1:41pm

    Qualified immunity is clearly established to be bullshit.

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous Coward, 5 Apr 2021 @ 2:27pm

    But really, cops are all just super aware of court rulings. For sure.

    I had no idea that Franz Kafka and Albert Camus were still alive and collaborating on police procedural fiction.

    reply to this | link to this | view in thread ]

  12. icon
    PossibleHuman (profile), 5 Apr 2021 @ 3:10pm

    If the court accepts "training and expertise" as a legitimate defense of the individual officers, then -- by definition -- the very same ruling determines that the law enforcement agency and/or city employing those defendants is unquestionably liable for the violations committed by the defendants.

    reply to this | link to this | view in thread ]

  13. icon
    PossibleHuman (profile), 5 Apr 2021 @ 3:13pm


    In addition, failure to correct the training means the agency or city remains perpetually liable for that violation (and any that follow) until such time as that training is demonstrably corrected.

    reply to this | link to this | view in thread ]

  14. identicon
    MightyMetricBatman, 5 Apr 2021 @ 3:32pm


    Here is the next innovation in 10th Circuit Appeals decision making technology on police matters involving possible rights violations:

    Tails the police department wins, heads you lose.

    reply to this | link to this | view in thread ]

  15. icon
    Emelie (profile), 5 Apr 2021 @ 5:55pm

    This is Fing infuriating! Let me vent and leave me alone.

    Wonder if the favorite hanging tree of the people in that city used to use to give out punishment when the law refuse to is still alive?
    Sooner or later the people will have had enough and put all cops on the hunting list. If I remember correctly two cops were shot in their car not so long ago. That's only the start.
    Imagine the neighborhood torching a cop's home and no one will say they didn't see or hear anything while their jacket still smelled of smoke. That would be such wonderful old age justice. Since the cops don't protect the people, only protect themselves, why should the people protect the cops? In my eyes the cops don't do their job and lost their usefulness. Most people will know by now to never call the cops because someone will end up dead or seriously beaten up. Like a couple celebrating in a hotel. If this video doesn't make you fumingly angry there's something wrong with you!

    reply to this | link to this | view in thread ]

  16. icon
    Uriel-238 (profile), 5 Apr 2021 @ 6:29pm

    Ignorance is no excuse

    Except it is according to SCOTUS. If you're a police officer and are acting [in the color of] good faith, then you can arrest whoever you want for any reason that you [pretend to] believe is against the law.

    Checkmate, citizen.

    reply to this | link to this | view in thread ]

  17. icon
    Uriel-238 (profile), 5 Apr 2021 @ 6:31pm

    The courts enable the misconduct of the police.

    And that another reason why the entire justice system will have to be abolished.

    If we want to change our system from our fascist police state, that is.

    reply to this | link to this | view in thread ]

  18. icon
    That One Guy (profile), 5 Apr 2021 @ 8:08pm

    Ignorance is no excuse, unless you're a cop

    A ruling which really served the public good and ensured a good relationship between the police and the public, because if there's one thing people respect it's blatant hypocrisy and abuse of power.

    As I've noted in the past corrupt and/or cowardly judges may think they are helping police by shielding them from all consequences for their actions but all they're really doing is fanning the flames and ensuring that the police will rightly be seen as a group of thugs above the law and for whom the legal channels are useless against, and that's not good for the public or the police in the long term.

    reply to this | link to this | view in thread ]

  19. identicon
    Anonymous Coward, 6 Apr 2021 @ 2:42am


    an appeal to the supreme court.

    reply to this | link to this | view in thread ]

  20. identicon
    Anonymous Coward, 6 Apr 2021 @ 2:46am

    Re: Re: off to scous with you

    you can get a waver for the appeals, court costs.

    reply to this | link to this | view in thread ]

  21. identicon
    me, 6 Apr 2021 @ 4:53am

    It should also be noted

    When the officer said he needed a witness statement, You are not legally required to provide testimony to a cop if you choose not to, unless you've been hit with a subpoena in a legal proceeding.

    reply to this | link to this | view in thread ]

  22. identicon
    abolisthepolice, 6 Apr 2021 @ 8:16am



    reply to this | link to this | view in thread ]

  23. icon
    Wyrm (profile), 7 Apr 2021 @ 10:27am

    "Since we judges never said this exact way of breaking the law was wrong, you had no way of seeing the errors of your ways. Besides training and common sense. Which don't count. You're free to go." - The Tenth Circuit, paraphrased.

    reply to this | link to this | view in thread ]

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