The Supreme Court Declines To Determine if You Have a First Amendment Right To Film the Police

Just recently, the Supreme Court refused to hear an appeal at the nexus between the First Amendment and abuse by police. It declined to accept a petition from a man who claimed his right to free speech was violated when cops searched his tablet with no warrant and tried to delete a video of them beating a suspect.

In the summer 2014, Denver Police Department officers arrested Levi Frasier after they discovered that he had just recorded an altercation. The video showed a cop punching a suspect in the face six times while executing an arrest over an alleged drug deal—the man had a sock in his mouth that the cops thought was contraband—and it captured a different officer throwing a woman to the ground by her ankle when she approached the scene screaming. DPD Officer Russell Bothwell shouted: “Camera!” He was then harassed by the rest of the group. Frasier claimed that police threatened him with jail if the clip was not produced. “Well, it’s possible to do this in an easy or difficult manner,” Officer Christopher L. Evans stated, apparently pointing to Evans’ squad car. Despite Frasier’s protestations the police took the tablet from him and ran through it without his permission.

Qualified immunity was granted to these officers, which allows any number of state actors to violate your rights. It is a legal doctrine that permits them to do so if their actions have not been specifically ruled illegal by the Supreme Court or the federal circuit. The granular standard has allowed government officers to get away with assaulting and shooting a person outside his home or killing someone who was sleeping in their car. In these cases, victims could not present claims to a jury without being given a ruling that reflected the same facts.

This standard is especially egregious because in 2007, the DPD issued a policy to inform officers about the constitutional rights of the public to record them while on duty. The U.S. Court of Appeals, Tenth Circuit, ruled that qualified immunity cannot be overcome by this policy.

“Judicial decisions are the only valid interpretive source of the content of clearly established law; whatever training the officers received concerning the First Amendment was irrelevant to the clearly-established-law inquiry,” wrote Judge Jerome A. Holmes of the U.S. Court of Appeals for the 10th Circuit. This decision will be preserved despite today’s rejection by the highest court.

Qualified immunity was established to shield officials from vain lawsuits. They should also be “noticed” about what is or isn’t constitutional behavior. The 10th Circuit’s decision leads us to conclude that obscure court precedents have greater value in achieving this end than department-specific policies. However, most employees would be better acquainted with the latter.

These training guidelines “will now somewhat lose their force,” states Anya Bidwell (an attorney with the Institute for Justice), a public-interest firm. The federal courts won’t hold cops accountable for violating departmental rules, so they have less incentive than ever to adhere to them. By allowing rogue employees to be protected, the court accidentally compromised the First Amendment rights of the public.

The most remarkable thing about this training is the ability of the writers to accurately synthesize law and come up with a conclusion that officers were in violation. [a]Constitutional Right,” Ari Cohn is the free speech counsel for TechFreedom. This advocacy group, which focuses on the intersection between technology and First Amendment, says Ari Cohn. They are entitled to qualified immunity, even though their department has not. CorrectlyWe have compiled the law that clearly teaches them such behavior is illegal, just because it’s unlawful. Court“It would have been absurd to rule on this particular fact pattern, which is extreme judicial hubris.”

Each of the 11th, 13th, 15th, 17th, 19th and 20th Circuits has acknowledged that police can be filmed under the First Amendment. They would have not been allowed to film officers who behaved badly in locations that were subject to federal circuit court jurisdiction.

While the 10th Circuit recognized that DPD training infringed on a constitutional right, the court dangled around with that question. Holmes stated that Holmes did not examine or opine whether Frasier had the First Amendment right to film the police in their official duties within public places. Holmes said officers under the jurisdiction were free to continue violating the public’s rights again, without fear of recourse.