Supreme Court Asked To Firmly Establish A First Amendment Right To Record Police Officers

from the an-inevitable-conclusion,-but-how-much-longer-do-we-need-to-wait? dept

Earlier this year, the Tenth Circuit Court of Appeals awarded qualified immunity to officers who grabbed a tablet from Levi Frasier and tried to delete his recording of them. Frasier happened across these officers applying force during an arrest and decided to record it. The officer didn't like this so they took away his device and tried to find the video to delete it. Apparently unable to locate it, the officer yelled back to his partner that he couldn't find the recording, to which his partner replied, "As long as there's no video, it's ok."

The lower court found in favor of the officers, ruling they had reasonable suspicion to detain Frasier because he had lied about recording them, supposedly breaking a law that has nothing to do with lying to officers (at least not in this fashion).

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.

But this statute covers false emergency reports, falsely reporting crimes, and lying to officers about who you are when you're arrested. It clearly doesn't cover the conduct shown here. Nevertheless, the lower court used this justification to extend qualified immunity to the officers, despite the fact the officers had received training and notification that there was a presumed right to record police -- something backed up by court precedent around the nation.

The Tenth Circuit used the lower court's reasoning to justify its own finding in favor of the officers. And it went on to say that just because a cop has been informed that seizing or preventing recordings violates people's rights, no "reasonable" officer with the same training would assume that meant they couldn't seize people's devices and attempt to delete recordings.

[J]udicial 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.

Levi Frasier is hoping the Supreme Court will take his case. So are we. This should clear things up. There's not exactly a circuit split to resolve but there's no top-level declaration establishing the right to record public officials. Some circuits have established this bright line but many have not, allowing officers to walk away from lawsuits despite knowing courts tend to find recording officers is covered under the First Amendment. But because there's still a chance a court may find otherwise, officers can claim to be "reasonable" even if the courtroom odds are against them.

Frasier's petition [PDF] asks the Supreme Court to settle this question once and for all. (h/t SCOTUSblog)

Whether it has been “clearly established” since at least 2014 that the First Amendment protects the right of individuals to record police officers carrying out their duties in public.

It also asks the court to declare that training officers receive should have bearing on "reasonableness" decisions when qualified immunity is on the line. Given the top court's recent rollback of some of its expansion of qualified immunity, the second question is at least as timely as the first. As the petition points out, the Tenth Circuit ignored precedent and the officers' own training to excuse them from this lawsuit.

Regardless of whether this Court might wish to reconsider qualified immunity as a whole, this case presents a timely opportunity to resolve two divisions of authority and to curb an unjustified distortion of the doctrine. At the time of the remarkable incident in this case, the respondent police officers’ training and departmental policies expressly advised them that the First Amendment protects the right of citizens to record officers performing their duties in public. All four federal court of appeals decisions on the issue said the same thing, consistent with this Court’s precedent. Yet the Tenth Circuit granted the respondents immunity for doing exactly what they had been told was unconstitutional. The Tenth Circuit reasoned (1) that the training and law enforcement policies are “irrelevant” to the qualified-immunity analysis and (2) that existing legal precedent was insufficient on its own to make the right here clearly established.

As Frasier notes, this question should never have been considered by the Tenth Circuit because there was nothing left unanswered according to the officers' own testimony.

The qualified-immunity doctrine was created to prevent officers from being held unexpectedly liable based on constitutional rules they “neither knew nor should have known” existed. Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). The officers here all testified that they knew they were violating petitioner’s rights. Their training, department policies, and precedent all underscored that reality.

Addressing this would resolve the circuit split the Tenth Circuit deepened by deciding officers' training is somehow irrelevant to discussions of "reasonable" officers and their actions.

There's no real split when it comes to the right to record police officers, but the Supreme Court itself hasn't handed down precedent that affirms or establishes this right, so officers are free to pretend plenty of other courts haven't reached that conclusion.

When the events here occurred, all four federal courts of appeals to have considered the constitutional issue had held that “there is a First Amendment right to record the police performing their duties in public spaces.” But, citing Wilson, the Tenth Circuit held that respondents were entitled to qualified immunity because the circuits have “disagreed regarding whether this purported First Amendment right to record [i]s clearly established.”

The petition says the Tenth Circuit misread this decision. That one extended qualified immunity when there was a circuit disagreement "on a constitutional question." In all four of the circuit decisions handling the issue, there's no split because each court reached the same conclusion on the underlying constitutional question. Because the courts reached conflicting conclusions on the extension of qualified immunity does not show that they disagree on the right to record police officers. And there's plenty of other federal case law, along with any number of law enforcement policies, that make it clear recording officers is protected activity.

This reasoning is mistaken. For one thing, it improperly ignores the robust body of lower court jurisprudence that is directly on point. The clearly-established-law inquiry is not a game of divide-and-conquer. It is a holistic inquiry. See, e.g., Hope, 536 U.S. at 736-46. And here, the combination of precedent from this Court and the lower courts (plus the officers’ training and departmental policies, see supra at 16- 23) renders the law clearly established.

This is a case the Supreme Court should definitely take. The right to record police officers is assumed, thanks to a host of case law finding this act to be Constitutionally protected. But, as happened here, the lack of a firm resolution from the nation's top court, along with the fact that only a handful of circuits have directly addressed this issue, makes it unclear enough that officers can ignore their own internal policies to hassle, deter, or arrest citizens who film them. This decision is at least a decade past due. And the longer it goes unresolved, the longer the sort of abuse witnessed in this case will continue to occur.

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Filed Under: 10th circuit, 1st amendment, levi frasier, recording police, supreme court


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  • identicon
    Anonymous Coward, 27 Jul 2021 @ 4:08pm

    Won't happen. Thomas and the majority have important things to rule on, not pesky details like citizens' rights.

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

    • icon
      Bloof (profile), 28 Jul 2021 @ 6:18am

      Re:

      Hey, they have plenty of time for citizens rights cases, if a case can strip away voting rights, reproductive rights and so on, they'll love those. Even if they rule against bad law, they'll use their opinions to guide the lawmakers so they can get a little closer to banning minority voting and to shutting down that last abortion clinic.

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

  • identicon
    Anonymous Coward, 27 Jul 2021 @ 4:25pm

    Is there a way to downvote comments without flagging them as ‘abusive/trolling/spam’, also this hides the comment, which is not want I want unless it is one of those things.

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

  • identicon
    Anonymous Coward, 27 Jul 2021 @ 4:47pm

    Why risk it? The conservaturds who run the court are just as likely to throw the right out as to reinforce it. Fuck them all.

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

  • identicon
    Smartassicus the Roman, 27 Jul 2021 @ 5:44pm

    Thanks for the shining example.

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

  • identicon
    Pixelation, 27 Jul 2021 @ 5:46pm

    I suppose

    We should make sure, whenever possible, to film the people filming the police, so there is a clear record of what happens.

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

  • identicon
    Anonymous Coward, 27 Jul 2021 @ 6:05pm

    Flordia is also trying to or will pass a law that makes it a crime to record officers doing their job.

    This would shut that down too.

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

    • identicon
      David, 27 Jul 2021 @ 7:38pm

      Re:

      I don't see how this should affect the lifetime and procedures around clearly unconstitutional laws passed for performative reasons.

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

  • identicon
    Anonymous Coward, 27 Jul 2021 @ 6:45pm

    need a ruling on courts making ridiculously bad rulings

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

  • identicon
    David, 27 Jul 2021 @ 7:45pm

    Frankly:

    How did "it would be too onerous to uphold the laws when upholding the laws" even become a thing?

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

    • icon
      That One Guy (profile), 27 Jul 2021 @ 8:31pm

      Re: Frankly:

      Cowardly and/or corrupt judges and politicians who were either too scared to hold police accountable lest someone accuse them of being 'soft on crime' or who rather like the idea that the police are out their cracking skulls and who know that they will never be on the receiving end of such treatment.

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

      • identicon
        David, 30 Jul 2021 @ 12:22am

        Re: Re: Frankly:

        Well, it sounds more like police is getting a Letter of Marque than a government job contract.

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

        • icon
          Scary Devil Monastery (profile), 30 Jul 2021 @ 12:43am

          Re: Re: Re: Frankly:

          "...police is getting a Letter of Marque..."

          The right to use force of violence against unspecified individuals which in the sole judgment of the letter holder were up to no good? The right to seize goods and effects carried, again against the sole judgment of the letter holder? The right to deprive of freedom individuals again deemed up to no good, by the sole judgment of the letter holder?

          Yes, the resemblance is uncanny. Only one major difference that I can see - a US police officer has privateer rights within the sovereign territory of the nation.

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

  • icon
    That One Guy (profile), 27 Jul 2021 @ 8:36pm

    Tenth Circuit: 'Look, police are NEVER wrong, okay?'

    Bloody hell you see less extreme contortionist in a circus act that you do in this ruling . The cops were trained that the public is allowed to record them, they admitted that they knew they were violating both that training and the rights of the victim, and yet somehow QI still applies because reasons.

    This is a textbook perfect example of a ruling that started with the desired outcome and then worked backwards to justify it, hopefully the SC takes this one up and gives the current ruling and the tenth circuit court a hearty benchslap, making clear that yes, the public does have a right to record the police and violating that right is something police can be punished for.

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

  • icon
    dan8mx (profile), 27 Jul 2021 @ 10:04pm

    Is there a valid case for deleting videos?

    One thing that continues to confuse me in cases like this: why would officers ever think that deleting a video is the right thing to do?

    If making the video is not a crime, and the content of the video isn't illegal, it's nothing more than destroying someone else's data. Would a reasonable officer really think it's ok to confiscate a device and arbitrarily delete content on it?

    Perhaps they tried to delete it because they thought (correctly or not) that some aspect of either making or possessing the recording was a crime. But, if so, wouldn't that be deliberate destruction of evidence? Reasonable officers know that destroying evidence isn't ok - that's a big part of what exigent circumstances are all about.

    I too would like to hear this argued before the Supreme Court - clearly I'm missing something...

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

    • icon
      That One Guy (profile), 28 Jul 2021 @ 3:30am

      Re: Is there a valid case for deleting videos?

      Cops engaging in such behavior are likely banking on the idea that without video evidence of their actions it becomes a matter of what they said happened versus what a member of the public said happened, and how courts will more often than not side with the cop in such a situation even if it requires the judge(s) to bend over backwards to find some way to excuse the actions of the police as happened here.

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

      • identicon
        Bobvious, 28 Jul 2021 @ 6:08am

        Re: Re: Is there a valid case for deleting videos?

        Live streaming might be the only option here. I remember seeing a youtube of CopWatch, in which a cop approaches someone who is filming a police "interaction" with a citizen. It is clear the cop's intention is to shutdown the recording. When the person recording informs them that "it is being live-streamed and cannot be deleted", the whole equation changes, and the cop skulks back to their rights violation in-progress.

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

        • icon
          That One Guy (profile), 28 Jul 2021 @ 12:17pm

          Re: Re: Re: Is there a valid case for deleting videos?

          Offhand I can't think of any other way to prevent them from deleting evidence then making it literally impossible for them to do so, so yeah, think you're dead on there.

          (As an aside sheer aggravation that cop must have felt learning that they couldn't delete evidence of their actions is all sorts of funny to think about, thanks for sharing.)

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

    • icon
      Scary Devil Monastery (profile), 30 Jul 2021 @ 12:59am

      Re: Is there a valid case for deleting videos?

      "One thing that continues to confuse me in cases like this: why would officers ever think that deleting a video is the right thing to do?"

      Because such a video might portray officers in a bad light or incite the normal, unaware unwashed masses to misunderstand the righteous actions of said officer? /s

      You have to realize that there is, within US police culture, a very strong tendency to fortress mentality. Code Blue grew out of this understanding.

      It's almost identical to the codes adhered to by gangs. You wear the colors. You have the back of your brethren in the gang. You do not snitch. You take no shit from anyone failing to give your gang due respect.

      The US military (and every other military on earth) takes pains to break this sort of mindset early on, because they know what happens to people all forced to wear the same uniform and march in ranks, unless there are plenty of sergeants and drill instructors on hand to choke the life out of tribalism before it gets a chance to grow.

      The US police missed that bit completely.

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

  • identicon
    Anonymous Coward, 28 Jul 2021 @ 1:16am

    Those officers...they wanted evidence they were in X Y Z location removed.

    Possibly they themselves are under investigation for something like drug smuggling and didn't want a record they were in a certain area at a certain time to be available to the public?

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

  • identicon
    Anonymous Coward, 28 Jul 2021 @ 2:12pm

    Why is ignorance of the law a valid excuse?

    So how is it that police, who are considered 'law enforcement' can claim ignorance of said law so easily? One would think that if you're charged with enforcing law, you would be required to know what you're enforcing.

    Yet over and over again, these cops keep playing the "well your honor, officer X is in fact that stupid" card.

    I've never been trained on the law. Can I point to a lack of training as a defense to breaking a law? Where's all this 'training' that they're supposed to go through so I can take it and be just as fucking stupid as them?

    Any cops reading this that might be able to shed some light on why it's OK that your colleagues are arguing that you're essentially dumb as fuck when it comes to your fucking job? Do you realize that being considered a moron with a badge isn't helping your image any? Do you wonder why a significant portion of the population thinks that you're just gaming the system with these "but we're stupid" arguments?

    Seems like when you hear 'back the blue' they're in fact talking about 'blue bus' passengers.

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

    • icon
      That One Guy (profile), 28 Jul 2021 @ 3:21pm

      Re: Why is ignorance of the law a valid excuse?

      It is a seriously warped system where those tasked with upholding the law not only don't need to actually know what it says but are actively encouraged not to as the less they know the better off they are, and yet here we are thanks to cowardice and corruption.

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

  • identicon
    Rekrul, 28 Jul 2021 @ 4:10pm

    Levi Frasier is hoping the Supreme Court will take his case. So are we. This should clear things up.

    Unless they make another narrowly tailored ruling that doesn't set any real precedent. That's what they seem to like doing best.

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


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