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.

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

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.

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