FILMING POLICE IN THE WAKE OF GEORGE FLOYD’S MURDER: A FIRST AMENDMENT RIGHT?

By: Dylan Saul, Volume 106 Staff Member

The murder of George Floyd, at the hands of Minneapolis police officer Derek Chauvin, sparked a nation-wide reckoning with racism and police brutality that might not have happened had seventeen-year-old Darnella Frazier not recorded the murder on her smartphone.[1] The increasing public focus on police brutality[2] has contributed to a longstanding discussion between federal courts of whether bystanders have a constitutional right to film the conduct of police officers. Most recently, in Frasier v. Evans,[3] the Tenth Circuit Court of Appeals held that Denver police officers who were filmed hitting an uncooperative arrestee in the face were entitled to qualified immunity from the filmer’s § 1983 claim because the right to film officers was not “clearly established” under the First Amendment.[4]

In reaching this determination, the Tenth Circuit relied on the Supreme Court’s decision in Harlow v. Fitzgerald, which held that officers are entitled to qualified immunity unless they violate “clearly established statutory or constitutional rights of which a reasonable person would have known.”[5] A right is “clearly established” if “it is dictated by controlling authority or a robust consensus of cases of persuasive authority,”[6] such that “the statutory or constitutional question [is] beyond debate.”[7] The Frasier court, after reviewing out-of-circuit precedent, wrongly concluded that no such right exits; in actuality, this Post argues, “[e]very [other] Circuit Court of Appeals to address this issue . . . has held that there is a first Amendment right to record police activity in public.”[8]

I. CIRCUITS RECOGNIZING A CONSTITUTIONAL RIGHT TO FILM POLICE OFFICERS

Let us begin in the First Circuit. In October 2007, Simon Glik was arrested by Boston police after recording an officer punch another man during the course of an arrest.[9] On appeal, the First Circuit—like the Tenth—applied Harlowand its progeny to determine whether a “clearly established” constitutional right to film police officers existed at the time of the incident.[10] The Glik court took note of Supreme Court precedent granting First Amendment protection to “the dissemination of information relating to alleged governmental misconduct,”[11] but also went out of its way to consider persuasive authority from other jurisdictions acknowledging a private individual’s right to record public police conduct.[12] In sum, the First Circuit denied the officers’ qualified immunity claims because “a citizen’s right to film government officials . . . in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”[13]

The next stop on our circuit tour is the Third Circuit. In Fields v. City of Philadelphia, plaintiffs sued the City and several police officers who “illegally retaliated against [the plaintiffs] for exercising their First Amendment right to record public police activity.”[14] Although the Third Circuit, much like the Tenth, did not recognize a “clearly established” First Amendment right to film police officers prior to the decision,[15] the Fields court found that “recording police activity in public falls squarely within the First Amendment.”[16] The Third Circuit based its decision on both the substantial weight of persuasive authority from other jurisdictions,[17] as well as the public policy consideration that police recordings spur public debate on the important issue of proper policing.[18] While the Fields court ultimately granted the officers’ qualified immunity defense, because the law at the time of the recorded police misconduct did not “give fair warning so that every reasonable officer knew that . . . recording public police activity was constitutionally protected,”[19] the Third Circuit nevertheless took the important step of recognizing citizens’ rights to film alleged police misconduct.

The Fifth Circuit, in Turner v. Lieutenant Driver, considered the case of a plaintiff who was arrested for videotaping a police station from a public sidewalk across the street.[20] The district court ruled that the officers were entitled to qualified immunity because Turner failed to show that their actions violated “clearly established statutory or constitutional rights.”[21] On appeal, the Fifth Circuit determined that this ruling could be overturned only if the court could “point to controlling authority—or a robust consensus of persuasive authority” establishing such a right,[22] which mirrors the standard employed by the Tenth Circuit in Frasier. The Turner court concluded that while “there was no clearly established First Amendment right to record the police at the time of Turner’s activities,”[23] a combination of First Amendment principles and persuasive authority created a right to record the police going forward.[24]

Shifting to the Seventh Circuit, ACLU of Illinois v. Alvarez concerned an Illinois state law that made secretly taking an audio recording of police officers a felony punishable by four to fifteen years in prison.[25] The Alvarez court determined that since audiovisual records are used to preserve and disseminate information relevant to public discourse,[26] the act of taking an audiovisual recording is “included within the free speech and free press guaranty of the First and Fourteenth Amendments.”[27]

Next, the Ninth Circuit. In Fordyce v. City of Seattle, the plaintiff was arrested for filming bystanders at a protest who did not wish to be filmed—a misdemeanor under a state statute at the time.[28] Though the Ninth Circuit granted qualified immunity because a “reasonable officer could have believed Fordyce was recording private conversations in violation of the statute,” the Fordyce court still recognized Fordyce’s “First Amendment right to film matters of public interest.”[29]

Finally, in Smith v. City of Cumming, the Eleventh Circuit held that plaintiffs “had a First Amendment right . . . to photograph or videotape police conduct,” because “[t]he First Amendment protects the right . . . to record matters of public interest.”[30] While the Smith court ultimately dismissed the plaintiffs’ claim because plaintiffs were unable to prove that the police violated the “right to videotape police activities,” it had no trouble recognizing the First Amendment right as early as 2000.[31]

II. FEDERAL COURTS SHOULD RECOGNIZE A CONSTITUTIONALLY PROTECTED RIGHT TO FILM POLICE OFFICERS

As demonstrated by the above circuit tour, every circuit that has addressed the issue  recognizes a clearly established First Amendment right to film the public conduct of on-duty police officers—every circuit, that is, except the Tenth. The First, Third, and Fifth Circuits used the same objective standard from Harlow and its progeny that the Tenth Circuit employed in Frasier, but reached the opposite result in concluding that the First Amendment protects citizens who record police misconduct.[32] Furthermore, the First, Third, and Fifth Circuits all relied on out-of-circuit precedent in reaching their conclusions, rendering the Tenth Circuit’s cursory dismissal of this persuasive authority the clear outlier.[33] In sum, Frasier misreads the authority above to declare that the right to film police officers is not clearly established, when each opinion compels the opposite result.

Most importantly, even the Circuits that agree with the Tenth Circuit that qualified immunity attaches went out of their way to explain the importance of recognizing the right to record police officers. The Third Circuit, in Fields, opines that since recording police activity “leads to citizen discourse on public issues,” which is necessary for “uninhibited, robust, and wide-open debates,” it deserves “the highest rung” of First Amendment protection.[34] The Fifth Circuit’s Turner opinion waxes poetic in declaring that speech which “hold[s] officials accountable . . . is a precondition to enlightened self-government.”[35] In Fordyce, the Ninth Circuit puts it simplest, but perhaps best: citizens have a “First Amendment right to film matters of public interest.”[36] These statements should not be read as mere dicta, but as assertions of a constitutional right that is foundational to American democracy. The Tenth Circuit’s refusal to recognize that right inhibits our nation’s progress. Just ask Darnella Frazier.

 

[1] Joe Hernandez, Read This Powerful Statement From Darnella Frazier, Who Filmed George Floyd’s Murder, NPR (May 26, 2021), https://www.npr.org/2021/05/26/1000475344/read-this-powerful-statement-from-darnella-frazier-who-filmed-george-floyds-murd [https://perma.cc/QPL4-F629].

[2] See Jocelyn Simonson, Copwatching, 104 Cal. L. Rev. 391, 408 (2016) (claiming that, in part due to the omnipresence of smartphones, “civilian recording of police officers is ubiquitous”); see also Fields v. City of Philadelphia, 862 F.3d 353, 358 (3d Cir. 2017) (“This increase in the observation, recording, and sharing of police activity has contributed greatly to our national discussion of proper policing.”).

[3] 992 F.3d 1003 (10th Cir. 2021).

[4] Id. at 1019–20.

[5] Id. at 1015 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

[6] District of Columbia v. Wesby, 138 S.Ct. 577, 589–90 (2018) (emphasis added).

[7] Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

[8] Fields v. City of Philadelphia, 862 F.3d 353, 355 (3d Cir. 2017); see also Turner v. Lieutenant Driver, 848 F.3d 678, 686–87 (5th Cir. 2017).

[9] Glik v. Cunniffe, 655 F.3d 78, 79–80 (1st Cir. 2011).

[10] Id. at 81.

[11] Gentile v. State Bar of Nev., 501 U.S. 1030, 1034–35 (1991).

[12] Glik, 655 F.3d at 83.

[13] Id. at 85.

[14] 862 F.3d 353, 356 (3d Cir. 2017).

[15] Id. at 357.

[16] Id. at 359.

[17] Id. at 355.

[18] Id. at 359.

[19] Id. at 362.

[20] 848 F.3d 678, 643–44 (5th Cir. 2017).

[21] Id. at 684.

[22] Morgan v. Swanson, 659 F.3d 359, 371–72 (5th Cir. 2011).

[23] Turner, 848 F.3d at 687.

[24] Id. at 688.

[25] 679 F.3d 583, 586 (7th Cir. 2012).

[26] See First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 783 (1978) (“[T]he First Amendment . . . prohibit[s] government from limiting the stock of information from which members of the public may draw.”).

[27] Alvarez, 679 F.3d at 597 (citing Burstyn v. Wilson, 343 U.S. 495, 502 (1952)).

[28] 55 F.3d 436, 438 (9th Cir. 1995).

[29] Id. at 439.

[30] 212 F.3d 1332, 1333 (11th Cir. 2000).

[31] Id.

[32] Compare Glik v. Cunniffe, 655 F.3d 78, 81 (1st Cir. 2011) (explaining that a right is “clearly established” if a “reasonable defendant would have understood that his conduct violated the plaintiff[‘s] constitutional rights”) (internal citations omitted), Fields v. City of Philadelphia, 862 F.3d 353, 360–61 (3rd Cir. 2017) (asserting that qualified immunity attaches unless police violate a right “so clearly established that every reasonable official would have understood that what he is doing violates that right”) (internal quotations omitted), and Turner v. Lieutenant Driver, 848 F.3d 678, 685 (5th Cir. 2017) (ruling that a “clearly established” right must be one that “a reasonable official would understand that what he is doing violated that right”), with Frasier v. Evans, 992 F.3d 1003, 1014 (10th Cir. 2021) (holding that conduct violates a “clearly established” right when “every reasonable official would [have understood] that what he is doing violates that right”) (internal quotations omitted).

[33] Compare Glik, 655 F.3d at 83 (listing out-of-circuit precedent recognizing a First Amendment right to film police), Fields, 862 F.3d at 355–56 (listing the same), and Turner, 848 F.3d at 686–87 (finding that “circuit courts are not split . . . on whether the right [to record police] exists”) (emphasis added), with Frasier, 992 F.3d at 1023 (concluding that “the out-of-circuit authorities appear to be split on the clearly-established-law question”).

[34] 862 F.3d at 359 (quoting Snyder v. Phelps, 562 U.S. 443, 452 (2011)).

[35] 848 F.3d at 689 (quoting Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 339 (2010)).

[36] Fordyce v. City of Seattle, 55 F.3d 436, 438 (9th Cir. 1995).