DOJ Asks Tenth Circuit Appeals Court To Firmly Establish A Right To Record Police Officers

from the an-unlikely-challenger-appears! dept

Earlier this year, the Tenth Circuit Court of Appeals decided there was no right to record police officers. In a case involving a man who had his tablet seized and searched by Denver, Colorado police officers when they discovered he was recording them, the Appeals Court sided with the cops, awarding them qualified immunity. The judges did this despite the officers being specifically instructed that there was a presumed right to record police officers via training that had been in place for years prior to this incident.

The plaintiff attempted to have this case reheard by the Supreme Court, which might have resulted in the firm establishment of a right to record nationwide. Unfortunately, the nation's top court decided this wasn't worth its attention and took a pass on this case, apparently feeling the patchwork establishment of this right in a handful of judicial circuits is more than enough protection for the general public.

The Tenth Circuit is hearing another case involving the recording of police officers. It again involves officers in Colorado. In this case, an officer blocked Colorado resident Abade Irizarry from filming cops performing a roadside sobriety test. The Tenth previously dodged establishing precedent in the case it handled in April. This time it might feel a bit more pressure to actually weigh in on this issue. The DOJ (yes, that one!) has filed a brief in Irizarry's case asking the court to establish this right.

In a brief submitted to the U.S. Court of Appeals for the 10th Circuit on Wednesday, the department's Civil Rights Division advocated for the appellate court to settle the question once and for all as cases continue to arise implicating the right to record. The government indicated it has a stake in the outcome, given its authority to investigate patterns of police misconduct.

"The U.S. Department of Justice frequently relies on photos and videos of police misconduct — including photos and videos taken by members of the public — when investigating and prosecuting police officers" for constitutional violations, wrote attorneys Natasha N. Babazadeh and Nicolas Y. Riley.

The brief [PDF] specifically cites the George Floyd case, which might have vanished into the ether had it not been for recordings captured by citizens who witnessed the murder committed by Minneapolis police officer Derek Chauvin. It also points to the killing of Walter Scott by South Carolina police officer Michael Slager, who stated Scott had reached for his taser, necessitating his shooting. Bystander video showed what actually happened, which was Officer Slager shooting Scott in the back as he fled and then dropping his taser near Scott's body.

The DOJ says that it has long considered the recording of officers to be protected by the First Amendment, something it has repeatedly stated in investigations of local law enforcement agencies which have (among other frequent rights violations) detained, hassled, or otherwise deterred citizens from recording them.

As the brief points out, the lower court somehow managed to award qualified immunity to the officer despite there being plenty of case law that strongly suggested recording the police is protected by the First Amendment.

To reach that conclusion, the court cited Tenth Circuit precedents recognizing that the First Amendment protects news-gathering activities; out-of-circuit case law holding that such protections are not limited to professional journalists or established media companies; and the widely accepted proposition that the First Amendment protects the free discussion of government affairs, including sharing information about government misconduct. Nevertheless, despite holding that the First Amendment protects such a right, the court concluded that the right had not been clearly established in May 2019, when the incident that gave rise to this case occurred.

To that point, the DOJ urges the court to handle the important open questions first, rather than move straight to the qualified immunity defense, which short-circuits any judicial discussion of the relevant constitutional issue.

This Court should hold that the First Amendment protects the right to record police officers performing their duties in public (subject to reasonable time, place, and manner restrictions, as noted above) before resolving the qualified immunity question.

And, like the other case the Tenth Circuit Court mishandled in April, the cop involved in this incident had prior training informing him that citizens had a presumed right to record police officers.

Officer Yehia’s own police department explicitly instructs officers not to interfere with “the lawful efforts of the news media to photograph, tape, record and televise adult subjects in a public place.”

I hope the Tenth Circuit sees where it went wrong with the previous decision and decides to join the six circuits who've already established this right. There's always a chance the judges might decide it isn't any of the DOJ's business and go the other way out of spite, but this isn't an issue that's just going to go away if it's ignored long enough. And the longer the Tenth Circuit sides with cops, the more lawsuits its refusal to establish this right is going to generate.

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Filed Under: 10th circuit, doj, recording police


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  • identicon
    TheOtherOtherGuy, 30 Nov 2021 @ 11:09am

    Not "mishandled" if it is due to incompetence

    The 10th Circuit more than "mishandled" this issue. They were given a layup shot and even then they airballed it.

    That goes beyond "mishandling" and brings up the question of actual incompetence.

    And SCOTUS dodging the issue when there is this type of gross incomptence by a lower court adds further shame to an already disgraceful SCOTUS. This is a question of politiics, it is precedence.

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

    • icon
      That One Guy (profile), 30 Nov 2021 @ 2:33pm

      Re: Not "mishandled" if it is due to incompetence

      Oh I wish it was incompetence... no, this is much more likely a case of corruption and cowardice, either seeing police as above the law and always right by definition and/or being too cowardly to rule against them if that's what's required to protect the public's rights or even lives.

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

      • icon
        Upstream (profile), 30 Nov 2021 @ 3:13pm

        Re: Re: Not "mishandled" if it is due to incompetence

        I'll go you one better: It's not incompetence, and it's not corruption or cowardice, either. It's a deliberate effort to establish more and stronger police-state case law precedent. For some people, the current de-facto police state due to "qualified immunity" precedent just isn't good enough.

        It is kind of like the old saying: Once is happenstance, twice is coincidence, three times is enemy action.

        The surprising part is the DOJ's stance in this, even though it is probably just for show.

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

        • icon
          That One Guy (profile), 30 Nov 2021 @ 5:07pm

          Re: Re: Re: Not "mishandled" if it is due to incompetence

          I'd classify that as corruption personally, someone put in a position where they are supposed to serve the public or uphold the laws deciding to do neither, but I see your point.

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

  • icon
    Andrew (profile), 30 Nov 2021 @ 11:44am

    A minor question

    It also points to the killing of Walter Scott by South Carolina police officer Michael Slager, who stated Scott had reached for his taser, necessitating his shooting. Bystander video showed what actually happened, which was Officer Slager shooting Scott in the back as he fled and then dropping his taser near Scott's body.

    While I'm all for complete protection for citizens and journalists alike being able to record public officers performing public duties in public, wouldn't Walter Scott's case been clearly established by forensics? Shooting someone reaching for your taser would be from a foot away in the front, not at a distance in the back.

    Of course, I'm guessing the police could have just swept the autopsy under the rug...

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

  • identicon
    Anonymous Coward, 30 Nov 2021 @ 12:24pm

    And, like the other case the Tenth Circuit Court mishandled in April, the cop involved in this incident had prior training informing him that citizens had a presumed right to record police officers.

    Officer Yehia’s own police department explicitly instructs officers not to interfere with “the lawful efforts of the news media to photograph, tape, record and televise adult subjects in a public place.”

    It's a common mistake to think that citizens and news media are different when it comes to rights.

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

  • icon
    ECA (profile), 30 Nov 2021 @ 12:56pm

    Hmmm

    So a judicial agency of the gov. has decided Not to do much. Even tho in the course of THEIR WORK, it would be a great medium to use and evaluate things?
    Are they afraid that we might Force them to be MORE public about how they are working? Are they just a bunch of lazy republicans(if you want to use that word)?

    These folks gave 1st amendment rights, which are freedom of speech and actions(more or less) to corps. So that they could use money to Influence elections. Which seems Beyond the 1st amendment, as not personal and to Itself. Its sounds as bad as Us, paying off a person to kill someone, and it cant be admitted because its a 1st amendment right. What happened to the 3rd party rule? Where sharing a Private secret/action with 1 other MIGHT be fine if neither says anything, but once another person finds out, its considered Public knowledge.
    Which would be the idea of another person Watching or a recording device(if found or seen by another person) makes things a 3rd party.

    Why do we seem to be moving backwards. the corps get power the police working for the corps, and US/WE struggling to survive on milk and beans?
    Seems the monkeys are incharge of the zoo.

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

  • icon
    That One Guy (profile), 30 Nov 2021 @ 2:18pm

    It's not 'going the other way' if they were already doing that

    There's always a chance the judges might decide it isn't any of the DOJ's business and go the other way out of spite, but this isn't an issue that's just going to go away if it's ignored long enough.

    Why sure it is, I mean everyone knows if a boiler is straining at the weld points and swelling up the proper response isn't to maybe let some of the steam escape and/or reduce the steam production it's to clamp down on any escaping steam even more, that fixes the problem right up with no possible long-term consequences.

    When even the bloody DOJ is intervening to tell the lower courts to make clear that recording cops is absolutely a right(because the SC was too cowardly and corrupt to issue a ruling) that's a pretty good sign that things are spiraling out of control and there is a problem in dire need of fixing.

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


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