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.