Civil liberties advocates, scholars and others are lining up to ask the U.S. Supreme Court to hear a Colorado man's appeal, after a lower court decided the Denver police officers who allegedly retaliated against him for filming an act of brutality were immune from liability.
The ruling from a three-judge panel of the U.S. Court of Appeals for the 10th Circuit drew condemnation earlier this year. The panel not only refused to say whether the First Amendment protects a person's right to film law enforcement in public, but decided the Denver Police Department's own policies recognizing such a right were irrelevant.
"The respondent police officers knowingly violated Levi Frasier’s First Amendment rights by harassing, threatening, and illegally searching him, all because he recorded them making an arrest in public," wrote the Cato Institute, a libertarian policy organization, in a brief to the Supreme Court.
Frasier was a bystander in August 2014 when Denver officers attempted to arrest a man suspected of stuffing a sock full of drugs into his mouth. Frasier recorded with his tablet an officer punching the man's face multiple times, and another officer grabbing the suspect's pregnant girlfriend and causing her to fall to the ground.
Afterward, one of the officers, Charles Evans, allegedly followed Frasier to his car and asked about the video. Frasier lied and said it was a disappearing Snapchat photo, worried the police would tamper with the video. Reportedly, the officers encircled Frasier and prompted him to hand over the tablet. Frasier claimed he could not find the video on the device afterward, but the police department countered that it had never disappeared from the tablet.
After Frasier sued, the officers asserted qualified immunity, which is a judicial doctrine that prevents government officials from being held liable unless they violate a clearly-established legal right. In theory, it is meant to protect reasonable officers acting in good faith. A federal trial court judge denied the Denver officers immunity, after learning the department's training expressly covered the right of the public to record them.
But on March 29, the 10th Circuit panel reversed that decision.
Judicial decisions, wrote Judge Jerome A. Holmes, are the only thing that determines whether a right is clearly established, and so "whatever training the officers received concerning the nature of Mr. Frasier's First Amendment rights was irrelevant."
"As this case illustrates," wrote the progressive Constitutional Accountability Center to the nation's highest court, "despite the careful limits and caveats this Court has included in its opinions, qualified immunity in the hands of the courts of appeals has too often become a license for impunity, allowing government officers to evade accountability even when they knowingly deprive individuals of their constitutional rights."
Seven friend-of-the-court briefs have been filed so far in August since Frasier in July appealed the 10th Circuit's decision. All are urging the justices to hear Frasier's case. Representing Frasier is Jeffrey L. Fisher, who has argued more than three dozen cases before the Supreme Court, as well as Boulder attorney Elizabeth Wang.
Some organizations supporting Frasier believe the Supreme Court should establish nationwide whether the First Amendment clearly protects a person's right to record law enforcement, invoking the video of George Floyd's murder in Minneapolis as an example of why it is necessary to memorialize that right. Others are asking the justices to determine the 10th Circuit was mistaken to exclude what the officers actually knew about the First Amendment in deciding the issue of qualified immunity.
"The Tenth Circuit’s decision categorically barring consideration of police policies and training under qualified immunity analysis conflicts with the actual practice of this Court and many lower courts," wrote University of Denver law professor Alan K. Chen on behalf of other qualified immunity scholars.
Still others want the Supreme Court to clarify for lower courts when the qualified immunity defense is appropriate.
"Considering the purpose of qualified immunity is to ensure that 'officers are on notice their conduct is unlawful'," wrote the Institute for Justice, "this case shows just how far the doctrine has strayed and why this Court’s guidance is needed."
The institute added that "it would be bad enough" if the 10th Circuit had ignored the Denver Police Department's guidance to its officers, but the ruling now prohibits an agency within the six states of the 10th Circuit from "putting its own officers on notice about the constitutional rights it wants them to respect."
The Reporters Committee for Freedom of the Press told the Court that first-hand accounts of police misconduct are crucial to ensuring accountability for law enforcement. Also advancing that argument were 10 First Amendment scholars, including Chen and Justin Marceau of DU, as well as Helen Norton and Scott Skinner-Thompson of the University of Colorado School of Law.
The case is Frasier v. Evans.