Less than a month after the nation's highest court declined to take up a Colorado case implicating the right of bystanders to record police officers, another man is asking the Denver-based federal appeals court to definitively establish that the First Amendment protects such activity.
Abade Irizarry, who describes himself as a YouTube journalist and blogger, filed a legal brief last week with the U.S. Court of Appeals for the 10th Circuit. Irizarry is arguing the court should reinstate his lawsuit against the Lakewood police officer who allegedly blocked him from video recording a traffic stop in progress more than two years ago.
The 10th Circuit should "dispel the dangerous notion that government actors in our jurisdiction can continue to infringe with impunity the fundamental constitutional right to unobtrusively film the police in the discharge of their duties in public," wrote attorneys for Irizarry.
Although the question of whether bystanders may record police in the performance of their duties is relatively straightforward, the issue of qualified immunity adds a layer of complication. Qualified immunity is a judicial doctrine that shields government employees who are acting in good faith from liability. Practically speaking, it means that holding an officer accountable for violating a constitutional right can only happen if the court system has already clearly defined that the right exists.
Irizarry's appeal comes in the wake of a setback for civil liberties advocates when the U.S. Supreme Court on Nov. 1 turned down the appeal in Frasier v. Evans. In that case, the plaintiff, Levi Frasier, alleged Denver police officers retaliated against him for filming an act of brutality on his tablet in 2014. A lower court judge denied qualified immunity to the officers, noting that they had been trained on the First Amendment rights of bystanders.
But earlier this year, a three-judge panel for the 10th Circuit ruled in favor of the officers. The court found that, at the time of the alleged retaliation, there was no clearly-established constitutional right of bystanders to record police. The panel also emphasized that court decisions, and not an officer's training, defines what is or is not a constitutional right.
Finally, and most frustrating for critics of the decision, the 10th Circuit refused to say whether the First Amendment guarantees the right to record.
"[U]ntil this Court declares that the right is established, there is no meaningful deterrent against police officers physically preventing bystanders from recording them, or motivation for local jurisdictions to instruct officers to not interfere with recordings," nine First Amendment scholars to the 10th Circuit on Friday wrote in a brief supporting Irizarry's appeal.
According to Irizarry's complaint, he and three other "YouTube journalists/bloggers" were recording Lakewood police conducting a roadside sobriety test of a motorist during early morning hours in May 2019. Officer Ahmed Yehia reportedly arrived and placed himself in front of Irizarry to obstruct the camera.
After Irizarry began to voice his disapproval, Yehia allegedly shined his flashlight into the camera, overwhelming the sensors. Irizarry's complaint also contained allegations of Yehia driving directly at Irizarry and swerving around him, and of other officers giving Yehia instructions to stop.
Irizarry then sued Yehia for infringing on his right to freedom of the press. In June of this year, U.S. Magistrate Judge Nina Y. Wang determined that there was no clearly-established First Amendment right to record police at the time of the encounter, and dismissed the lawsuit.
However, in a minor victory for civil rights plaintiffs, she also decided that such a right does exist now.
Irizarry's appeal argues that it was "clear to every reasonable law enforcement officer" that bystanders had a right to record police, even without a 10th Circuit decision saying so. Irizarry reached that conclusion by piecing together principles from prior Supreme Court decisions, such as the right to criticize the government and disseminate information.
"As of May 2019, each of these threads of First Amendment doctrine — the intertwined rights to collect, create, disseminate, receive, and debate information about public officials — established with obvious clarity that individuals had a constitutional right to film police officers during traffic stops subject only to reasonable time, place, and manner restrictions," the brief reads.
Although Irizarry represented himself at the trial court, his appeal is now in the hands of the prominent international law firm Arnold & Porter Kaye Scholer. His lawyers have carefully attempted to put distance between their client's case and the Frasier decision. They argue the 10th Circuit can uphold that ruling while still finding in Irizarry's favor because in the years since Denver police allegedly retaliated against Frasier, six other circuit courts of appeals have held that bystanders have a First Amendment right to record police.
Irizarry, who has no fixed address, said his case represents an important legal question for the six states covered by the 10th Circuit.
"I am just humbled [by] the amazing legal support I have received," he said in an email. "Hopefully this question will finally be answered. There would be no [George] Floyd if it were not for the Pulitzer Prize winning citizen journalist that caught the incident. The right to record police needs to be established in the 10th circuit for freedoms sake."
Darnella Frazier, the teenager who recorded the May 2020 police murder of Floyd in Minneapolis, received a Pulitzer special citation and award for the video. Colorado's own landmark police accountability law came into effect in large part due to the worldwide protests in response to the video.
The First Amendment scholars who signed onto the brief in support of Irizarry also pointed to the importance of holding police accountable, ensuring respectful interactions between police and citizens, and protecting the rights of viewers. The signatories to the brief included professors Alan K. Chen and Justin Marceau of the University of Denver, and Helen Norton, Scott Skinner-Thompson and Margot E. Kaminski of the University of Colorado.
Yehia has not yet filed a brief in response.
The case is Irizarry v. Yehia.