Although several federal appeals courts across the country have held that the First Amendment protects a person’s right to record police officers performing their duties in public, that right has yet to be recognized in Colorado.

That may change, however, as a panel of three judges on the U.S. Court of Appeals for the 10th Circuit heard oral arguments on Wednesday about the right to record. In an unusual move that signified the importance of the issue, the U.S. Department of Justice participated in the arguments even though it was not a party to the case.

Natasha N. Babazadeh, with the Justice Department’s Civil Rights Division, told the panel that in the past year, there have been eight court cases within the six-state region of the 10th Circuit that have implicated the right to record.

“Addressing this issue is timely and it would provide much-needed clarity to district courts. It is also uncontroversial,” she said.

The case of Abade Irizarry marks the second time in recent history that the 10th Circuit will have the opportunity to recognize a constitutionally-protected right for bystanders to document the actions of police officers. The appeal also comes nearly two years after a video of George Floyd’s murder at the hands of Minneapolis police officers sparked international racial justice protests and the enactment of policing reforms in Colorado.

Irizarry, who describes himself as a YouTube journalist and blogger, sued Lakewood police agent Ahmed Yehia for interfering with and retaliating against him as he recorded an early-morning traffic stop in May 2019. According to his lawsuit, Irizarry and three other amateur journalists were using their cameras and cell phones to record police who were attending to a suspected drunk driver.

When Yehia arrived, he reportedly stood in front of Irizarry’s camera, then shined his flashlight in a way that saturated the camera’s sensor. Yehia also allegedly returned to his cruiser and “drove right at” Irizarry, swerving around him and honking his horn. Other officers, Irizarry wrote, told Yehia to then leave the scene.

Yehia’s response to the lawsuit was to assert qualified immunity, which shields government employees from civil liability unless they violate a clearly-established legal right. Although qualified immunity is intended to protect officers who act reasonably, courts typically view rights as clearly-established only when a prior appellate decision under very similar circumstances has labeled them as such.

In June of last year, U.S. Magistrate Judge Nina Y. Wang granted Yehia’s motion to dismiss, finding that at the time Yehia allegedly violated Irizarry’s rights, the First Amendment right to record was not clearly established in the 10th Circuit. However, she also concluded that the right does exist now.

Irizarry, who initially represented himself in court, appealed to the 10th Circuit with the assistance of the prominent law firm Arnold & Porter.

As Irizarry was appealing his case, the U.S. Supreme Court declined to review another right-to-record appeal out of the 10th Circuit. In Frasier v. Evans, decided in March 2021, the 10th Circuit not only refused to decide whether the First Amendment guarantees a right to record police, but also held that officers are entitled to qualified immunity even if they learned in their training that bystanders have a right to record.

Civil liberties advocates at the time decried the decision as an abuse of the qualified immunity doctrine. Even though the 10th Circuit’s ruling was out of step with the six other multistate circuit courts that have weighed in on the right to record, the Supreme Court passed on the case in November.

As in Frasier, Irizarry’s lawsuit has attracted the attention of multiple outside groups with an interest in reforming qualified immunity or advancing First Amendment principles. Most prominently, the Justice Department argued in favor of neither party, but asked only for a recognition of the right to record. The Civil Rights Division told the appellate panel that it relies on photos and videos of police misconduct when investigating alleged violations of people’s constitutional rights.

“The United States urges this court once and for all to recognize that the First Amendment protects the right to record police officers performing their duties in public,” said Babazadeh.

Yehia did not contest that the First Amendment protected Irizarry’s right to record. Instead, he argued that no prior cases had put him on notice that the right to record was clearly established.

“There has to be a case identified where an officer, acting in similar circumstances, was held to have violated a constitutional right,” said Alex Dorotik, deputy city attorney for Lakewood, during oral arguments.

Judge Carolyn B. McHugh countered that the existence of a similar case may not be necessary.

“There are some cases where the conduct is so egregious that the Supreme Court has said we don’t need clearly-established law because everybody knows you can’t drive your car over someone trying to exercise their First Amendment right,” she said. “Isn’t that this case?”

Andrew Tutt, representing Irizarry, agreed that Yehia had not only obstructed Irizarry’s recording, but used his car as a “deadly weapon,” according to the allegations.

Acknowledging the six other appellate courts – from the sprawling Ninth Circuit along the West Coast to the conservative Fifth Circuit in the south – that have recognized a right to record, Senior Judge Paul J. Kelly Jr. wondered about the effect if the 10th Circuit followed suit.

“If we made that same decision going forward, would it help your client at all? Say starting today, it’s recognized?” asked Kelly, who was also a member of the panel that decided the Frasier case.

“Yes, absolutely. My client regularly engages in filming the police,” Tutt responded. “Going forward, officers can’t do what Officer Yehia did in this case.”

Strictly speaking, Judge Scott M. Matheson Jr. mused, the panel could still bypass the issue of a right to record because neither party contested it to the 10th Circuit.

Irizarry’s appeal attempted to forestall that outcome. Tutt claimed that the lack of a dispute between the parties as to whether the First Amendment guarantees the right to record – an agreement that also existed between the parties in the Frasier case – was evidence that the right is clearly-established after all.

Elizabeth Wang, the lawyer who represented plaintiff Levi Frasier in his lawsuit against Denver police officers, called it a “fantastic argument.”

“If the defendant doesn’t even bother to debate the issue, then the proposition is beyond debate. Seems pretty straightforward to me,” she told Colorado Politics. “It does not seem like the right outcome to allow defendants to sidestep this issue forever by simply refusing to debate it.”

The case is Irizarry v. Yehia.