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Tenth Circuit Misses Opportunity to Affirm the First Amendment Right to Record the Police

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Email updates on news, actions,and events in your area.DEEPLINKS BLOGShare ItWe are disappointed that the U.S. Court of Appeals for the Tenth Circuit this week a critical constitutional question: whether individuals have a First Amendment right to record on-duty police officers.EFF had filed an in the case, Frasier v. Evans, asking the court to affirm the existence of the right to record the police in the under the court’s jurisdiction (Colorado, Oklahoma, Kansas, New Mexico, Wyoming, and Utah, and those portions of the Yellowstone National Park extending into Montana and Idaho).Frasier had used his tablet to record Denver police officers engaging in what he believed to be excessive force: the officers repeatedly punched a suspect in the face to get drugs out of his mouth as his head bounced off the pavement, and they tripped his pregnant girlfriend. Frasier filed a First Amendment retaliation claim against the officers for detaining and questioning him, searching his tablet, and attempting to delete the video.In addition to refusing to affirmatively recognize the First Amendment right to record the police, the Tenth Circuit held that even if such a right did exist today, the police officers who sought to intimidate Frasier could not be held liable for violating his constitutional right because they had “”—that is, because the right to record the police wasn’t clearly established in the Tenth Circuit at the time of the incident in August 2014.The court held not only that the right had not been objectively established in federal case law, but also that it was irrelevant that the officers subjectively knew the right existed based on trainings they received from their own police department. Qualified immunity is a that often allows culpable government actors to avoid accountability for violations of constitutional rights.Thus, the police officers who clearly retaliated against Frasier are off the hook, even though “the Denver Police Department had been training its officers since February 2007” that individuals have a First Amendment right to record them, and that “each of the officers in this case had testified unequivocally that, as of August 2014, they were aware that members of the public had the right to record them.”As we wrote last year in our , “[r]ecordings of police officers, whether by witnesses to an incident with officers, individuals who are themselves interacting with officers, or by members of the press, are an invaluable tool in the fight for police accountability. Often, it’s the video alone that leads to disciplinary action, firing, or prosecution of an officer.”This is particularly true in the murder of George Floyd by former Minneapolis police officer Derek Chauvin. Chauvin’s criminal trial and that Chauvin is being prosecuted at all is in large part due to the brave bystanders who recorded the scene.Notwithstanding the critical importance of recordings for police accountability, the First Amendment right to record police officers exercising their official duties has not been recognized by all federal jurisdictions. Federal appellate courts in the , , , , , and Circuits have directly upheld this right.We had hoped that the Tenth Circuit would join this list. Instead, the court stated, “because we ultimately determine that any First Amendment right that Mr. Frasier had to record the officers was not clearly established at the time he did so, we see no reason to risk the possibility of glibly announcing new constitutional rights … that will have no effect whatsoever on the case.”This statement by the court is surprisingly dismissive given the important role courts play in upholding constitutional rights. Even with the court’s holding that the police officers had qualified immunity against Frasier’s First Amendment claim, if the court declared that the right to record the police, in fact, exists within the Tenth Circuit, this would unequivocally help to protect the millions of Americans who live within the court’s jurisdiction from police misconduct.But the Tenth Circuit refused to do so, leaving this critical question to another case and another appellate panel.&nbsp;&nbsp;Although the Tenth Circuit refused to recognize that the right to record the police exists as a matter of constitutional law throughout its jurisdiction, it is comforting that the passed two statutes in the wake of the Frasier case.The first law created a statutory right for civilians to record police officers (Colo. Rev. Stat. § 16-3-311). The second created a civil cause of action against police officers who interfere with an individual’s lawful attempt to record an incident involving a police officer, or who destroy, damage, or seize a recording or recording device (Colo. Rev. Stat. § 13-21-128).Additionally, the Denver Police Department revised its to prohibit punching a suspect to get drugs out of his mouth (Sec. 116.06(3)(b)), and to explicitly state that civilians have a right to record the police and that officers may not infringe on this right (Sec. 107.04(3)).Share ItSAN FRANCISCO–A new Arizona law that bans people from recording videos within eight feet of police violates the constitutional rights of legal observers, grassroots activists, and other Arizonans, says by the Electronic Frontier Foundation (EFF), two Arizona chapters of the National Lawyers...When people fear that the police are about to break the law, they pull out their phones and hit “record.” Doing so promotes police accountability and public discussion of important issues. So, it is great news that yet another federal appellate court has ruled that people have a First Amendment...EFF applauds the U.S. Court of Appeals for the First Circuit for that the First Amendment protects individuals when they secretly audio record on-duty police officers. EFF filed an in the case, Martin v. Rollins, which was brought by the ACLU of Massachusetts on behalf...Like the rest of the world, we are horrified by the videos of George Floyd’s murder. Once again, police brutality was documented by brave bystanders exercising their First Amendment rights. Their videos forcefully tell a painful truth that has further fueled a movement to demand an end to racism and...The First Amendment protects the public’s right to use electronic devices to record on-duty police officers, EFF argued in an filed in the U.S. Court of Appeals for the Tenth Circuit. The case, Frasier v. Evans, was brought by Levi Frasier against five Denver police officers for...Journalists face increasingly covering public protests, presidential rallies, corruption, and police brutality in the course of work as watchdogs over government power. A case before the U.S. Supreme Court threatens press freedoms even further by potentially giving the government freer rein to arrest media people in retaliation...Congress should not broadly authorize federal agencies to destroy and wiretap private drones, or give its implied endorsement to biometric screening of domestic travelers and U.S. citizens. Congress definitely should not sneak these invasive provisions into a last-minute, must-pass, thousand-page . Yet Congress is poised to do so. Please...The First Amendment protects the right of members of the public to record first responders addressing medical emergencies, EFF argued in an filed in the federal trial court for the Northern District of Texas. The case, Adelman v. DART, concerns the arrest of a Dallas freelance press...The First Amendment protects our right to use electronic devices to record on-duty police officers, according to a new by the U.S. Court of Appeals for the Third Circuit in . This right extends to anyone with a recording device, journalists and members of the...Does the First Amendment guarantee the right of individuals to record police officers exercising their official duties in public? That is the question being considered by the U.S. Court of Appeals for the Third Circuit in two consolidated cases: Fields v. City of Philadelphia and Geraci v. City of Philadelphia....Share It

Email updates on news, actions,and events in your area.DEEPLINKS BLOGShare ItWe are disappointed that the U.S. Court of Appeals for the Tenth Circuit this week a critical constitutional question: whether individuals have a First Amendment right to record on-duty police officers.EFF had filed an in the case, Frasier v. Evans, asking the court to affirm the existence of the right to record the police in the under the court’s jurisdiction (Colorado, Oklahoma, Kansas, New Mexico, Wyoming, and Utah, and those portions of the Yellowstone National Park extending into Montana and Idaho).Frasier had...

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Tenth Circuit Misses Opportunity to Affirm the First Amendment Right to Record the Police

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