A man who claims Denver officers retaliated against him for video recording an incident of police brutality is now asking the U.S. Supreme Court to place guardrails on the legal concept of qualified immunity, after a lower court concluded that the officers were immune from lawsuit even though Denver’s training specifically covered the right of bystanders to record police.
Civil liberties advocates were outraged in March when the U.S. Court of Appeals for the 10th Circuit not only determined that an officer’s training on the First Amendment is irrelevant, but refused to say whether the U.S. Constitution even protects the right to record police in public.
Levi Frasier, in his petition this month to the Supreme Court, called the decision “deeply misguided” and noted the videotaped murder of George Floyd and the 1991 beating of Rodney King as key examples of bystanders documenting police misconduct.
“When our legal system fails to deliver justice to those who suffer mistreatment at the hands of governmental agents, the citizenry may wonder why those agents are not held to account,” wrote Frasier’s attorneys. “And when those agents violated their own training and policies, the public may wonder all the more.”
Although the Supreme Court rejects the vast majority of petitions, Ashley I. Kissinger, a First Amendment attorney with Ballard Spahr, thought Frasier's appeal stood a better than average chance of being heard.
"The current milieu that we're in where people are talking about Black Lives Matter and qualified immunity, there have been a lot of concerns about the qualified immunity doctrine not only in legal circles," she said. "The Court does care about spending its limited resources to take cases that have broad importance to society, and this is clearly one of them."
Frasier was a bystander on Aug. 14, 2014 when a Denver police detective and sergeant attempted to restrain a man suspected of taking part in a drug transaction. The officers were attempting to remove a sock that the man stuffed into his mouth, ostensibly containing narcotics.
Although the detective initially asked Frasier for help, he stepped back when other officers arrived and instead recorded the encounter on his tablet from approximately 10 feet away. It was then that Frasier captured Officer Charles Jones punching the suspect in the face multiple times. The video also depicted Officer Charles Evans grabbing the suspect’s pregnant girlfriend by her ankle and causing her to fall.
“There wasn’t a need for the second or the third [punch], for sure the fourth, fifth, or sixth. Each one seemed to get more violent and powerful,” Frasier later said.
He claimed that after he returned to his car, Evans followed him and asked about the video. Frasier was worried the officers would make the video “disappear.” Frasier alleged Evans continued to press him about the video, and Frasier wrote in his witness statement, falsely, that he had only taken a Snapchat photo that deleted itself automatically.
At one point, though, five officers reportedly encircled Frasier and asked for the video, prompting Frasier to retrieve his tablet. Evans took the device and allegedly announced that he did not see the video after searching for it. Frasier claimed afterward he could not find the video on the tablet, but the Denver Police Department’s Internal Affairs Bureau concluded after a forensic analysis that the video had never disappeared from the device.
Frasier then sued the officers for retaliating against him as he exercised his First Amendment right to record them performing their duties in public. The officers asserted qualified immunity, which is a judicial doctrine shielding government employees from civil liability absent a violation of clearly-established legal rights.
Generally, for a right to be clearly established, there must be a prior court decision to deny qualified immunity in a case featuring very similar circumstances. In Frasier’s lawsuit, the trial court judge initially sided with the officers, but subsequently learned Denver had trained its officers since 2007 that the public has the right to record them. The judge then reversed his decision, acknowledging it would be illogical for officers to receive immunity for violating a policy they knew existed.
“The court would be loath to sanction this type of ‘head’s I win, tails you lose’ strategy simply because it smacks of gamesmanship,” acknowledged U.S. District Court Senior Judge Robert E. Blackburn.
However, a three-member panel of the 10th Circuit overruled Blackburn in March.
Judicial decisions, wrote Judge Jerome A. Holmes, “are the only valid interpretive source of the content of clearly established law, and, consequently, whatever training the officers received concerning the nature of Mr. Frasier’s First Amendment rights was irrelevant to the clearly-established-law inquiry."
That decision prompted Frasier to appeal to the Supreme Court on July 8, arguing the 10th Circuit had warped the original intent of qualified immunity, which was to protect officers who acted in good faith.
“The officers here all testified that they knew they were violating petitioner’s rights. Their training, department policies, and precedent all underscored that reality,” his attorneys explained. “Whatever the outer boundaries of qualified immunity may be, this case is far beyond them.”
Benjamin Levin, an associate professor at the University of Colorado Law School, believed Frasier has put forward a “strong claim” for the Supreme Court to potentially narrow qualified immunity, or conceivably abolish it altogether.
“As a practical matter, one would think that police officers are much more likely to know the contents of their training materials than they would be to follow random 10th Circuit cases,” he said. “It doesn’t make a whole lot of sense to ignore those training materials.”
The Denver Police Department told Colorado Politics that it still provides training to officers about the right of bystanders to record police.
Frasier is also asking the Supreme Court to decide whether it was clearly established at the time of his encounter in 2014 that the First Amendment guarantees the right to record police officers performing their duties in public. Other circuit courts of appeals have made that determination, and a federal magistrate judge in Colorado ruled last month that such a right currently exists.
But the 10th Circuit expressly declined to give an answer, with Holmes writing that the panel would "exercise our discretion to bypass the constitutional question."
More than a dozen First Amendment scholars weighed in on Frasier's behalf to the 10th Circuit, including Alan K. Chen and Justin Marceau of the University of Denver's law school, plus Helen Norton, Margot E. Kaminski and Scott Skinner-Thompson of CU's law school. One of them, Chen, told Colorado Politics that there would be similar statements of support filed for Frasier's Supreme Court appeal.
Two current Supreme Court members have expressed skepticism of qualified immunity as courts currently apply it. Justice Clarence Thomas said he has "strong doubts" about the doctrine, and Justice Sonia Sotomayor criticized qualified immunity being used as an "absolute shield."
Kissinger, the First Amendment attorney, pointed to the Court's 1982 decision that established the current framework for qualified immunity. Three of the eight justices in the majority agreed that the qualified immunity standard "would not allow the official who actually knows that he was violating the law to escape liability for his actions."
"In all of the states in the 10th Circuit, police officers are now on notice that, 'hey, I can take those video tapes from people and I know I'm gonna get qualified immunity.' So they can knowingly violate the law right now," Kissinger said.
Representing Frasier are Boulder attorney Elizabeth Wang, the global law firm O'Melveny & Myers, and the Stanford Law School Supreme Court Litigation Clinic.
The case is Frasier v. Evans et al.