“The Supreme Court, having created the problem of qualified immunity to shield police from being held liable for their misconduct, keeps refusing to fix it.”
And so opens the the latest column by the Washington Post’s always stellar criminal justice expert, Radley Balko
In this instance, Balko, who has been covering the issue of qualified immunity for some time, is writing about SCOTUS’s refusal on Monday of this week to hear the case of Frasier v. Evans, in which officers knowingly violated a Denver man’s First Amendment right to record the police, but still received qualified immunity when the man, Levi Frasier, sued the cops for their actions.
Qualified immunity, for those who have forgotten, Specifically, is a legal doctrine that protects a government official — including members of law enforcement — from lawsuits alleging that the official violated a plaintiff‘s rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right. When determining whether or not a right was “clearly established,” courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights.
Here are the circumstances of the lawsuit, the appeals court ruling, and the appeal to SCOTUS that followed, which the high court decided to ignore.
The right to record
On August 14, 2014, Levi Frasier video-recorded the actions of some members of the Denver Police Department, who allegedly saw a man in a silver car participate in a drug deal in a public parking lot in Denver, Colorado.
After seeing the alleged drug transaction, the first officer radioed for backup and followed the suspect’s car to another public parking lot, where the officer got out of his patrol car, and approached the car in question, announced he was the police, and ordered the driver to show his hands.
When the suspect did not obey the detective’s order, but instead stuffed a sock into his mouth, which the detective thought might be filled with drugs, the officer pulled him from his car and pinned him against it, as two other officers arrived on the scene.
It was at that point that Frasier, who happened to be nearby, began started video-recording the event from about 10 feet away, using his Samsung tablet.
Frasier’s video captured one of the officers hitting the suspect in the face six times in rapid succession, striking him so hard that later the man had to be hospitalized.
Following the pummeling, the suspect’s very pregnant girlfriend, started to scream and then raced towards the officers. The video shows one of the officers pushing her away, and then another officer grabbing the woman’s leg and pulling her off her feet, causing her to fall face — and stomach — first to the pavement.
After the suspect — whose name was David Flores — stopped struggling, and was handcuffed, one of the officers involved followed Frasier to his car and asked him to provide a statement regarding what he had seen and to turn over his video of the arrest.
At first, Frasier denied having filmed the arrest. Eventually, he showed the officer the digital tablet which he had used to make the video recording.
According to Frazier, he did so after the five officers surrounded him and allegedly pressured him to comply with their demand to turn over the video.
Once he showed Officer Christopher Evans the tablet, Frasier said, the officer grabbed it from his hands and searched for the video without his consent.
Later, Frasier was able to send the video to the Denver Police Department and Fox 31 News. The latter broadcast the video.
Frazier also filed a civil suit in federal court suing the five officers, claiming they violated and conspired to violate his constitutional rights under both the First and Fourth Amendments.
“Yes & no & no,” said the courts
The federal district court agreed that Frasier’s First Amendment right had been clearly established. But when the officers went up the line to the 10th Circuit U.S. Court of Appeals, the 10th overturned the decision of the lower court in the spring of this year.
According to the 10th Circuit, only a federal court could decide whether a right had been “clearly established.” The fact that the Denver PD had a clear policy about the public’s right to video or photograph the activities of officers, and trained their sworn employees on this issue, was all completely “irrelevant,” the court declared, “….even if the officers subjectively knew—based on their training or from municipal policies—that their conduct violated Mr. Frasier’s First Amendment rights.”
The deal was, since the 10th Circuit itself hadn’t previously determined whether filming police was a clearly established right, the court simply acted as if the right didn’t exist and granted qualified immunity to the five DPD officers, as it threw out Frasier’s case.
“No one doubts the man, Levi Frasier, had the right to record the stop,” writes Balko in his column on situation. “Six federal appeals courts have ruled there is a constitutional right to record police officers in public, a sentiment shared by the overwhelming majority of constitutional scholars.”
(Oh, and while we’re on the topic, exactly zero federal appeals courts have ruled that said right does not exist.)
“In fact, the law is so well established,” writes Balko, “that the officers in Denver were trained that citizens have such a right, and to respect it.”
In other words, the officers had no credible way of arguing that they were unaware of Frasier’s rights in the matter.
Nevertheless, wrote Nick Sibilla, of the Institute for Justice, in a guest commentary for the Denver Post, “the 10th Circuit refused to exercise the power it exclusively reserved for itself and failed to declare that there is, in fact, a constitutional right to film the police. As a result, police could censor and retaliate against anyone who recorded them in public but still get off scot-free.”
And so it was that Frasier appealed to U.S. Supreme Court, hoping they would make a sensible decision.
A “chilling affect”
Along with Frasier’s appeal, there were seven amicus briefs, including this brief featuring a lineup of ten of the nation’s top constitutional scholars, including California’s Irwin Chemerinsky who is presently the dean of U.C. Berkley’s School of Law.
“This Court should grant certiorari and clarify that the First Amendment protects the rights of individuals to record police officers performing public duties in public spaces,” the scholarly amici wrote.
“The First Amendment’s core purpose is to protect and promote the unfettered dissemination and discussion of ideas to bring about social, political, and legal changes desired by the people. In recent years, recording public officials performing public duties in public spaces has been the vehicle through which citizens have promoted this core reform purpose.
“For example, citizens’ recordings of police misconduct and other events of national importance involving law enforcement (i.e., the recording of the homicide of George Floyd, social justice protests, and the January 6, 2021 U.S. Capitol riot), have pushed governments across the country to make significant changes in their policies and laws…”
The brief goes on from there.
Another amicus brief filed by 44 news organizations also made compelling arguments.
“It should be scandalous that a court could conclude that law enforcement might be entitled to retaliate against a member of the press or public solely because the person documented what police officers did in public,” wrote the attorneys for the news outlets, which included Mother Jones, Fox News, the New York Times. “But the lingering uncertainty that characterizes the right to record will continue to have a chilling effect on its exercise, while emboldening those who would suppress it further.”
Yet, as we now know, none of the arguments succeeded in moving SCOTUS to agree to simply hear the freaking appeal.
On October 26, Balko published another column on the issue of qualified immunity and its history, in which he wrote this:
“For a brief period last year, there was some hope that the Supreme Court might walk back its 50-year jurisprudence on qualified immunity, the doctrine that makes it nearly impossible to recover damages when police violate the Constitution. After the court ruled last term in favor for the plaintiffs in two cases involving horrific abuse by prison guards, there was some hope that perhaps the court would finally begin to take seriously its role as guardian of the Bill of Rights. The court snuffed out those hopes last week, when it unanimously overruled two federal appeals courts and granted qualified immunity to police officers in two cases.
And now, this week, SCOTUS continued their thus far habitual hope-snuffing on the issue.
At the end of Friday’s column, Balko saw the situation through a far darker window, specifically that of George Orwell:
“George Orwell famously wrote, ‘If you want a picture of the future, imagine a boot stamping on a human face — forever.’ In defiance of everything we know about violence and state power — and for that matter most of human history — somehow, the Supreme Court has decided that the boot deserves more protection than the face.”
And that’s not good.