Without any dissent, the U.S. Supreme Court on Monday refused to hear a case that could have protected the public’s right to record on-duty police officers, but will instead make it even harder to hold police accountable. Failing to prevent police from threatening observers creates a “chilling effect” that undermines the freedom of the press, warned dozens of newspapers, magazines, and media companies in an amicus brief that urged the Supreme Court to take the case.
For well over a decade, Denver has instructed its police officers to respect the public’s “right to record them performing their official duties in public spaces” and required police supervisors to attend a course on this First Amendment right. Nor was Denver an outlier: In 2012, the U.S. Department of Justice issued a “guidance on the right to record police activity” that unambiguously declared that “individuals have a First Amendment right to record police officers.”
But in August 2014, that training was flatly ignored by multiple officers who tried to suppress footage depicting police brutality. With his Samsung tablet, Levi Frasier recorded an officer repeatedly punching a man in the face, after that man was wrestled out of the car and pinned down by police. After Frasier stopped filming, police demanded to see the video.
Officer Christopher Evans allegedly told Frasier, “Well, we could do this the easy way or we could do this the hard way,” and pointed to the backseat of a squad car. Frasier saw that as a thinly veiled threat to arrest him. Soon, Frasier found himself encircled by five officers, including Evans, who suddenly snatched the tablet and searched (unsuccessfully) for the footage—all without a warrant.
Fortunately, Frasier was able to provide Fox 31 News with a copy, which ran a story that November. After the altercation went public, the Denver Police Department modified its use-of-force policy, while Frasier sued the officers in federal court.
Although he found partial success at first in the district court, the Tenth Circuit U.S. Court of Appeals threw out his lawsuit. According to the Tenth Circuit, the officers were entitled to “qualified immunity,” which shields any and all government workers from legal liability, unless they violated a “clearly established” right.
Even though Denver had instructed its officers since 2007 about the right to film police, the Tenth Circuit declared that “whatever training the officers received concerning the nature of Mr. Frasier’s First Amendment rights was irrelevant to the clearly-established-law inquiry.” Instead, “judicial decisions are the only valid interpretative source” that can clearly establish the law.
Incredibly, the court then refused to decide whether there is a First Amendment right to record police. That effectively gives a free pass to any officer operating within the Tenth Circuit’s jurisdiction, which covers not just Denver and Colorado, but also Kansas, New Mexico, Oklahoma, Utah, and Wyoming.Moreover, by deeming training materials “irrelevant,” the Tenth Circuit’s rule in Frasier “undermines the executive’s ability to police its own officers,” which “violates fundamental separation-of-powers principles,” the Institute for Justice argued in its amicus brief. By setting policy, putting officers on notice, and supervising its employees, the executive branch (which includes law enforcement) places clear limits on the power of police officers. But the Tenth Circuit’s decision “prevents the executive from effectively training its own officers to respect the public’s constitutional rights.” Yet without training from the executive branch, “the only way to put officers on notice about their constitutional obligations would be for one officer to go too far, get sued, and for the circuit court to publish an opinion explaining why the conduct was wrong.” That leads to the “absurd result” seen in Frasier, where “despite fourteen years of training, officers can still claim qualified immunity for retaliating against a citizen-recorder today.”With its decision, the Tenth Circuit is a stark outlier. The First, Third, Fifth, Seventh, Ninth, and Eleventh Circuits, covering a diverse array of states, including California, Florida, Illinois, and Texas, have all held that filming police is a “clearly established” First Amendment right. In addition, four federal appellate courts—the First, Second, Sixth, and Ninth Circuits—have held that training materials and law enforcement policies “are also relevant” for qualified-immunity analysis, not just court decisions. Attorneys for both sides did not respond to requests for comment.