Denver asks SCOTUS to reject case implicating right to video record police

The city of Denver is urging the U.S. Supreme Court not to hear a case that could alter the limits of civil immunity for police officers and establish the right of bystanders to record law enforcement in public.

On Thursday, the Denver City Attorney's Office submitted a brief to the nation's highest court urging the justices to let stand a lower court ruling in favor of its officers.

"Under this Court’s cases, a police officer is entitled to qualified immunity unless it is clearly established that his conduct violated a statutory or constitutional right," wrote City Attorney Kristin M. Bronson. "To conclude otherwise would require this Court to overrule decades of precedent."

The case, Frasier v. Evans, stems from an August 2014 incident in which bystander Levi Frasier recorded a video of Denver officers punching a suspect repeatedly in the head and grabbing the suspect's pregnant girlfriend, causing her to fall. One of the officers, Christopher Evans, sought to obtain a witness statement from Frasier and inquired about the video.

"Yet rather than provide the recording, or even admit that he had taken one but decline to share it, petitioner lied — repeatedly. Eventually, he admitted that he had recorded the encounter after multiple officers told him they had seen him do so," Bronson wrote to the Court. 

While Frasier did lie about the video, saying he had only taken a self-deleting Snapchat photo, he later explained he was afraid the officers would make the video disappear, given that he had evidence of their use of force.

According to Frasier, the officers encircled him until he produced his tablet. Evans allegedly took the tablet and scrolled through it, before announcing to the others that he could not find the video. One officer reportedly responded that “as long as there’s no video, it’s okay." A later forensic examination from the police department showed the video had always been on the device.

Frasier later sued the officers for retaliating against him after recording their actions, which he maintained he had a right to do under the First Amendment. A federal judge initially granted the officers qualified immunity, which shields government employees from civil liability unless they violate a clearly-established legal right. In theory, the doctrine protects reasonable officers who are acting in good faith.

It was not clearly established through prior court decisions, U.S. District Court Senior Judge Robert E. Blackburn concluded, that the First Amendment guaranteed the right to record officers in public. However, once Blackburn learned that the officers had actually received training on the First Amendment rights of bystanders, he reversed himself and reinstated Frasier's claim.

But a three-member panel of the Colorado-based U.S. Court of Appeals for the 10th Circuit disapproved of that move earlier this year. The panel ruled that what an officer actually knows about constitutional rights does not matter unless it stems from judicial decisions.

Further, the 10th Circuit refused to say whether the First Amendment protects the right to record police.

At the time, the decision outraged civil liberties advocates and provided an example of qualified immunity applied unreasonably in an obvious case of constitutionally-protected expression. But the city argued to the Supreme Court that the 10th Circuit had made a legally-sound ruling, and that an officer's training should have no bearing on whether he is denied immunity for his actions.

No court, Bronson argued, has taken the "extreme position that such materials can be outcome-determinative or supplant the reasonable-officer test."

"Merely knowing that there is a right to record the police is manifestly not the same thing as knowing that particular conduct violates the First Amendment," she added.

Legal scholars, civil liberties advocates and others have already weighed in on behalf of Frasier and asked the justices to review his appeal. Some cited the worldwide racial justice protests of 2020, following the murder of George Floyd in Minneapolis, as illustrating the importance of bystanders being able to record police unimpeded.

"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, to the Supreme Court.

Two current members of the Supreme Court have publicly shared their misgivings about the qualified immunity doctrine. Justice Clarence Thomas said he has "strong doubts," and Justice Sonia Sotomayor criticized qualified immunity being used as an "absolute shield."

Shortly after the 10th Circuit's decision, a federal magistrate judge in Colorado issued a decision stating that the First Amendment right to record police does exist as of 2021. That case is on appeal to the 10th Circuit.