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Qualified Apathy: The Tenth Circuit Concedes Jurisdiction Over Constitutional Questions [Frasier v. Evans, 992 F.3d 1003 (10th Cir. 2021).]

John Spizak | April 28, 2022 | PDF version (206 KB)

Summary: The Tenth Circuit Court of Appeals reversed the district court’s denial of qualified immunity asserted by Denver police officers against a claim that they violated a man’s First Amendment free speech right. The man alleged that the officers intimidated him to seize a video he made of the officers violently arresting a suspect in public. While the court correctly determined that a public right to record a public police action was not clearly established at the time of the incident in the Tenth Circuit, it declined to determine whether the Constitution provided such a right. Even though courts have discretion over whether such an analysis is needed in a given case, the court’s refusal, in this case, to assess whether the right to record police in public exists conflicted with the court’s exclusive jurisdiction over constitutional interpretation.

Preferred Citation: John Spizak, Qualified Apathy: The Tenth Circuit Concedes Jurisdiction Over Constitutional Questions, 61 Washburn L.J. Online (2022) 83, https://washburnlaw.edu/wljonline/spizak-qualified-apathy.

I. Introduction

While courts apply qualified immunity to personally protect public officials who inadvertently violate a citizen’s constitutional rights,[1] qualified immunity analysis is also a vehicle courts use to interpret the contours of rights bestowed by the Constitution.[2] In Frasier v. Evans, the Tenth Circuit purposely avoided determining whether there is a constitutional right to record a police officer acting in public and set a precedent that lays out how defendants can prevent advancing constitutional interpretation when asserting qualified immunity. This Comment argues that the Supreme Court (1) missed an opportunity to settle whether video recording public officials in public is a constitutionally protected activity and (2) should limit a court’s discretion to refuse to determine whether a constitutional violation occurred in a qualified immunity analysis.[3]

II. Background

A. Frasier v. Evans Facts

In August 2014, a Denver Police Department (“DPD”) detective observed a silver car participate in an alleged drug deal.[4] The detective followed the vehicle to a public parking lot where Levi Frasier had recently parked.[5] Once in the parking lot, the detective stopped the silver car and pulled the uncooperative suspect through the car window.[6] As the altercation escalated, a DPD sergeant arrived as backup.[7]

Then, the suspect took a sock from his waistband, shoved it in his mouth, and went to the ground.[8] Mr. Frasier, attracted to the drama, stood observing the arrest until the officers enlisted him to assist by grabbing the sock in the suspect’s mouth.[9] When more uniformed officers arrived on the scene, he retreated a short distance away and began to video record the incident on his tablet.[10]

The arrest was violent.[11] At one point, the officers punched the suspect’s face several times while he was pinned and pulled out his pregnant girlfriend’s feet from under her, slamming her to the ground as she was yelling at the officers.[12] The officers also quickly acknowledged that they were being recorded.[13] Once the suspect was cuffed, Mr. Frasier ceased recording and returned to his van to stow his tablet.[14]

When the officers questioned Mr. Frasier about the video, he denied making a video and claimed that he only took a Snapchat photo.[15] They asked him a series of questions concerning whether he saw “‘the officers do anything inappropriate’ or use any force after ‘they had the suspect in custody....’”[16] Dissatisfied with Mr. Frasier’s repeated refusals to admit that he recorded the incident, four officers surrounded him and demanded to see the tablet he was holding during the arrest.[17]

Eventually, Mr. Frasier acquiesced and retrieved the tablet to show an officer.[18] The officer grabbed the tablet from Mr. Frasier’s hands and searched the device for the video despite Mr. Frasier’s protests that the officer needed a warrant.[19] However, the officer was unable to find a video.[20] Believing that no video existed, the officer returned the tablet to Mr. Frasier, and he was released.[21]

B. Case Description

Mr. Frasier filed a 42 U.S.C.§1983 action against the officers and the City and County of Denver, alleging, inter alia, that the officers retaliated against him in violation of his First Amendment rights for making the video recording.[22] After asserting qualified immunity, the officers were initially dismissed from the suit.[23] The court granted the City and County of Denver summary judgment because Denver demonstrated that it extensively trained its officers—including the defendants—that the public has the right to record officers.[24] However, the court reconsidered the officers’ dismissal and reversed its grant of qualified immunity, finding that it would be contradictory to dismiss Denver for adequately training the officers without holding the officers accountable for ignoring that training.[25]

After being pulled back into the lawsuit, the officers moved for summary judgment reasserting qualified immunity and pointing to the district court’s earlier determination that the right to record the police in public was not clearly established by judicial precedent.[26] However, the district court denied the officers qualified immunity under the theory that they actually knew that the public has a First Amendment right to record the police.[27] The officers filed an interlocutory appeal with the Tenth Circuit Court of Appeals, challenging their denial of qualified immunity.[28] The Tenth Circuit reversed the district court’s denial of qualified immunity,[29] and the Supreme Court of the United States denied Mr. Frasier’s petition for certiorari.[30]

C. Legal Background

1. A Right to Record Public Officials

The right to video record public officials acting in public stems from the First Amendment.[31] However, the Supreme Court has never addressed the existence of this specific right.[32] The Ninth Circuit first addressed this issue in 1995,[33] and the immediate five subsequent circuits that have weighed in have all agreed that the right exists.[34] These circuits also agree that the right is subject to content-neutral time, place, or manner restrictions.[35]

The right has been framed within information gathering and dissemination.[36] Branzburg v. Hayes held that gathering information is a protected First Amendment activity,[37] and the Court has stressed that disseminating gathered information is also protected.[38] Furthermore, the Branzburg Court stated that the press enjoys no special access to information—leveling the professional press and general public.[39] The Court has also established that audio-video recordings are constitutionally protected,[40] and their public use is a right for information gathering.[41]

Another aspect of establishing a right to record officers is predicated on the First Amendment protection of discussing the government.[42] The Court has clearly stated that a democratic system is reliant on freedom of speech.[43] Critically, speech regarding the government is especially protected to prevent governmental abuse of power.[44] It is also well established in the Tenth Circuit that police officers are considered public officials whose activities are of public interest under the First Amendment.[45]

2. Qualified Immunity

Qualified immunity is a defense offered to government officials to eliminate personal liability for misconduct violating an individual’s civil rights whenever there is constitutional ambiguity.[46] The modern incarnation of qualified immunity grew out of the Supreme Court’s holding in Harlow v. Fitzgerald.[47] Harlow placed a burden on plaintiffs to prove two main elements in response to a qualified immunity defense: (1) the official’s actions violated a constitutional right, and (2) the right was clearly established at the time.[48] Anderson v. Creighton explained that the right must be clear enough such that a “reasonable official would understand that what he is doing violates that right.”[49] Furthermore, the Court defined a “clearly established” right by holding that the analysis does not “require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.”[50]

While the meaning of “clearly established” may seem like a high hurdle in a qualified immunity analysis, it dovetails with the Court’s intent in crafting qualified immunity doctrine. The Court has expressed that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.”[51] The Court has further iterated that the doctrine shields officials from the burden of trial and even discovery to prevent distracting officials with litigation.[52]

At one time, the Court in Saucier v. Katz recognized that when courts only inquired whether a right was clearly established, the law was sometimes deprived of explanation.[53] The Court also reasoned that it was sometimes necessary to understand how the facts create a constitutional violation in order to ascertain whether a right was clearly established.[54] The Court concluded that a proper analysis required a strict evaluation of both Harlow prongs, starting with whether an official’s actions violated a constitutional right,[55] creating the Saucier protocol.[56]

Despite this attempt to structure qualified immunity application and advance constitutional interpretation, the Court reversed course in Pearson v. Callahan. The Court recognized that lower courts often faced difficulty determining constitutional rights when only limited facts were available, or the briefing was woefully deficient inter alia.[57] In response, the Court made evaluating the first qualified immunity prong discretionary for lower courts.[58] Even though it overruled the strict application of the Saucier protocol, the Court still stressed that the protocol helped create necessary constitutional precedent and remained available to the courts.[59]

III. The Court’s Decision

In Frasier v. Evans, the Tenth Circuit reviewed the district court’s denial of qualified immunity to defendant officers.[60] First, the court found that the district court erred in applying the subjective standard of the officers’ personal knowledge of the right to record.[61] The court pointed out that an objective standard applies to a qualified immunity analysis regardless of the officers’ knowledge.[62] Before evaluating the two-part Harlow test, the court made a point to say that “[j]udicial decisions are the only valid interpretive source of the content of clearly established law....”[63]

The court then analyzed whether Mr. Frasier properly demonstrated that the officers were not entitled to qualified immunity.[64] The court focused on whether a clearly established right to record the police existed in 2014 and rejected Mr. Frasier’s arguments that the right was clear from the broader Supreme Court First Amendment jurisprudence.[65] The court explained that law described in a high level of generality is inconsistent with qualified immunity analysis.[66] The law must reasonably fit the particular circumstances of the case to be applicable.[67]

Next, the court addressed four out-of-circuit decisions[68] cited as giving the officers notice of a clearly established right.[69] However, the court pointed to language from Fields v. City of Philadelphia,[70] and several other cases, showing that in 2014 there was still debate in the circuits of the right’s existence.[71] The court explained that a lack of consensus in other circuits is fatal in demonstrating a clearly established right.[72]

Although it would appear from the court’s decision that it only analyzed whether a clearly established right to record police in public existed in 2014,[73] the court did, however, dispense with the assertion that the officers’ conduct was unconstitutional in a footnote.[74] The court felt that because the defendants did not challenge the constitutionality of their conduct and the court’s analysis would not impact the outcome, it was not worth addressing.[75] Even though the analysis would have defined the right for future cases, the court did not specifically explain why the facts of this case would have led to the kind of “glib” dicta the court wanted to avoid.[76] Ultimately, the court concluded the officers were entitled to qualified immunity and reversed the district court.[77]

IV. Commentary

The Supreme Court missed an opportunity to address several major issues that spring from the Tenth Circuit’s decision in Frasier that will undoubtedly arise again. Importantly, whether the First Amendment protects the right to record the police or public officials performing their duties in public is less clear now than it was before Frasier. After six circuits determined that a right to record public officials exists,[78] the Frasier decision essentially created a one-circuit split with the other circuits.[79] Additionally, the Court could have revisited and refined its qualified immunity jurisprudence from Pearson. Frasier patently demonstrates how courts can abuse the discretion created by the Pearson decision.[80] At some point, the Court needs to find a balance between the competing interests in Saucier and Pearson to ensure that courts exercise their exclusive jurisdiction over constitutional questions and bring clarity to the law.[81]

A. The Court Must Establish a Right to Record Public Officials in Public

The ability to record the police, especially in public spaces, has become an indispensable tool for the rapid and widespread dissemination of police misconduct and stimulation of law enforcement accountability.[82] Moreover, this is far from a new or transitory issue. Notably, a pivotal moment in this debate—the nationally broadcast Los Angeles Police Department beating of Rodney King—was over thirty years ago in 1991.[83] Furthermore, the proliferation of personal digital cameras and mobile internet access has made the recording and dissemination of similar events even more likely.[84] The phenomenon that grew out of the King video more frequently arises year after year and was recently highlighted with the video depicting George Floyd’s death.[85] The time is long overdue that the Court addresses this issue and resolves it as it will continue to occur.[86]

Given that the public right to information and the means and methods of creating speech are as equally protected as the speech itself,[87] recording police actions must be treated identically to reporting on police actions. In light of the Court’s statement that “[t]here is practically universal agreement that a major purpose [of the First] Amendment was to protect the free discussion of governmental affairs,”[88] there is a substantial driving force behind adopting a broad right to record law enforcement activities. Regardless of the fissure that Frasier creates with other circuits, the Frasier decision identifies a significant flaw in qualified immunity precedent that the Court should address.[89]

B. The Tenth Circuit Creates a Precedent Encouraging Abuse of Discretion

Although a thorough qualified immunity analysis would include a discussion of whether an official violated a constitutional right,[90] the officers did not address whether the Constitution creates a right to record the officers in public performing their official duties.[91]

Because the officers declined to make that argument, the court treated it as an excuse to avoid analyzing the issue rather than a waiver.[92] This course of action was disturbing because courts have staked out exclusive jurisdiction to interpret the Constitution and the applicable rights it confers on the people.[93] The paternalist view that rights can almost never[94] be adduced directly from the text of the Constitution or even reasonably deduced from a substantial body of precedent—binding or not—demands that courts exercise their jurisdictional claim in instances such as this to evaluate whether such rights exist.[95] Despite the court’s reluctance to address the issue, it was unnecessary for the court to smugly refuse to address whether the Constitution bestows some right to record public officials in public.[96]

While Pearson overruled the requirement in Saucier that courts were to address both parts of the Harlow test, it did not urge courts to abandon the Saucier protocol.[97] Pearson recognized that a strict application of the protocol may be ineffective.[98] The strict application of the protocol may lead to unnecessary or shaky dicta on constitutional rights, especially at the pleading stage with limited and disputed facts.[99] Contrary to the court’s concerns, Frasier was decided after discovery with facts that were undisputed by the parties.[100] Furthermore, the court misinterpreted the lack of dispute as a lack of controversy[101] rather than a waiver.[102] It reasoned that any analysis of the right could only produce shaky dicta.[103] This flies in the face of an important aspect behind the Saucier protocol—endorsed in Pearson—which was to create a “procedure [that] promotes the development of constitutional precedent.”[104] The growing frequency of events such as those in Frasier is begging for constitutional clarity.[105]

Frasier should have followed the lead of the Fifth Circuit in Turner v. Driver, where the Fifth Circuit recognized the need to evaluate the right to record.[106] While Frasier’s logic would appear to be congruent with the position the dissent took in Turner,[107] it could have actually determined the rights grounded in the facts of this case, obviating the dissent’s concerns.[108] In reality, the facts of this case would have lent themselves well to addressing the narrow issue of “whether there is a First Amendment right to film the police ‘carrying out their duties in public.’”[109] It was clear that the officers were performing their duties in public; Mr. Frasier was not interfering with their duties or creating any other public risk in filming; and the officers were clearly identified as law enforcement.[110] Furthermore, it would not have created an adverse precedent that the officers would be unable to appeal.[111]

Instead, the outright refusal to evaluate the right and the reasoning the court gave sets a troubling precedent. The court’s logical roadmap undermines the reasoning in Pearson and all but nullifies the first element of the Harlow test. Any defendant that can rely on a lack of precedent clearly establishing a constitutional right only needs to contest whether the right was clearly established but could otherwise stipulate to the existence of such a right. This could foreclose future constitutional interpretation in the Tenth Circuit whenever qualified immunity is asserted. While this Comment does not address the value of qualified immunity in general, one of the biggest critiques of qualified immunity is that it provides a free pass to an individual who commits the first violation of a right.[112] However, if courts routinely refuse to create a constitutional precedent, qualified immunity becomes a free pass to violate people’s constitutional rights ad infinitum.[113] This undercuts the necessity to guide law enforcement development of sound policies and programs to prevent officer misconduct.[114] These reasons should give the Supreme Court pause and encourage it to limit a court’s discretion over whether a court can avoid determining if an official violated a constitutional right.

C. Cleaning Up the Mess

While the Court does not have to revert to the strict Saucier protocol, Frasier illustrates that the unfettered discretion over whether a court has to evaluate both parts of the Harlow test granted by Pearson allows courts to ignore a problem Saucier tried to address.[115] The Court needs to reaffirm its stance in Pearson and Saucier that it is necessary to develop constitutional precedent.[116] Therefore, the Court should create a presumptive standard that the first Harlow prong is analyzed unless a court provides a legal basis for why performing the analysis would be unwise.[117] This will help ensure that courts exercise their exclusive jurisdiction over constitutional interpretation and help bring clarity to the law.

V. Conclusion

If the Court continues providing qualified immunity to protect public officials, those decisions should not provide guidance to public officials on how to violate a person’s rights and perpetually avoid liability. When the facts of a case provide sufficient insight to make a constitutional determination, a court should exercise its exclusive jurisdiction over constitutional interpretation and make the analysis. Frasier demonstrates that the Court needs to ensure that the decades-long practice of recording officers in public is given constitutional protection. Most importantly, the Court needs to advance constitutional precedent by balancing the difficulty of interpreting the law with the need to develop precedent.

 

1. See Malley v. Briggs, 475 U.S. 335, 341 (1986). [Return to Text]

2. See Saucier v. Katz, 533 U.S. 194, 201 (2001). [Return to Text]

3. See infra Section IV. [Return to Text]

4. See Frasier v. Evans, 992 F.3d 1003, 1009 (10th Cir. 2021). [Return to Text]

5. Id. [Return to Text]

6. Id. [Return to Text]

7. Id. [Return to Text]

8. Id. [Return to Text]

9. Id. at 1010. [Return to Text]

10. Id. [Return to Text]

11. Id. [Return to Text]

12. Id.  In reality, this was a very aggressive move by the officers, one of the officers grabbed the pregnant girlfriend’s ankles with such force that it slammed her violently to the ground.  Chris Koeberl, Denver Police Accused of Using Excessive Force, Illegal Search, Fox 31 KDVR (Nov. 24, 2014, 9:08 PM), https://kdvr.com/news/problem-solvers/denver-police-accused-of-excessive-force-illegal-search/ [https://perma.cc/9W63-MPWP] (showing Mr. Frasier’s video of the arrest). [Return to Text]

13. Frasier, 992 F.3d at 1010.  At this point, Mr. Frasier believed he was witnessing police misconduct and became fearful that the video he was making would trigger police retaliation.  See id. at 1011. [Return to Text]

14. Id. at 1010. [Return to Text]

15. Id. [Return to Text]

16. Id. [Return to Text]

17. Id. at 1010–11. [Return to Text]

18. Id. at 1011. [Return to Text]

19. Id. [Return to Text]

20. Id. [Return to Text]21

21. Id. [Return to Text]

22. Id. [Return to Text]

23. Id. [Return to Text]

24. Id. [Return to Text]

25. Id. at 1012. [Return to Text]

26. Id. [Return to Text]

27. Id. at 1012–13. [Return to Text]

28. Id. at 1013. [Return to Text]

29. Id. at 1023, 1034–35. [Return to Text]

30. Frasier v. Evans, SCOTUSblog, https://www.scotusblog.com/case-files/cases/frasier-v-evans/ [https://perma.cc/627Z-285S] (last visited Jan. 20, 2021). [Return to Text]

31. U.S. Const. amend. I.  “Congress shall make no law . . . abridging the freedom of speech, or of the press. . . .”  Id.; see, e.g., Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011) (discussing how the right is rooted in the First Amendment and can be extrapolated from Supreme Court interpretations of the First Amendment). [Return to Text]

32. See Frasier, 992 F.3d at 1020–21. [Return to Text]

33. See Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (holding that an officer could be held liable for interfering with an individual’s “First Amendment right to film matters of public interest.”); see also Askins v. United States Dep’t of Homeland Sec., 899 F.3d 1035, 1044 (9th Cir. 2018) (echoing that its decision in Fordyce stands for a right to record law enforcement officers in public space while acting officially). [Return to Text]

34. The First, Third, Fifth, Seventh, Ninth, and Eleventh Circuits have all held that there is a right to record public officials in public.  See, e.g., Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000); Glik, 655 F.3d at 82; ACLU of Ill. v. Alvarez, 679 F.3d 583, 608 (7th Cir. 2012); Turner v. Driver, 848 F.3d 678, 688 (5th Cir. 2017); Fields v. City of Philadelphia, 862 F.3d 353, 356 (3rd Cir. 2017). [Return to Text]

35. See, e.g., Turner, 848 F.3d at 688. [Return to Text]

36. Matthew Slaughter, First Amendment Right to Record Police: When Clearly Established Is Not Clearly Enough, 49 J. Marshall L. Rev. 101, 103–04 (2015). [Return to Text]

37. Branzburg v. Hayes, 408 U.S. 665, 681 (1972) (“[W]ithout some protection for seeking out the news, freedom of the press could be eviscerated.”). [Return to Text]

38. Sorrell v. IMS Health Inc., 564 U.S. 552, 570 (2011). [Return to Text]

39. Branzburg, 408 U.S. at 684. [Return to Text]40

40. See Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952) (holding that audiovisual recordings in the form of movies are protected speech). [Return to Text]

41. See Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978) (holding that the public has a right to gather news using any available legal means). [Return to Text]42

42. Slaughter, supra note 36, at 104. [Return to Text]

43. Citizens United v. FEC, 558 U.S. 310, 339 (2010) (“Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people . . . . The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.”). [Return to Text]

44. First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 777 (1978). [Return to Text]

45. Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1220 (10th Cir. 2007) (citing Gray v. Udevitz, 656 F.2d 588, 591 (10th Cir. 1981)). [Return to Text]

46. Ande Davis, A Preponderance of Bias: Why Artificial Intelligence Should Be Qualified Immunity’s Fatal Flaw, 61 Washburn L. J. __ (forthcoming 2022) (citing Mark R. Brown, The Fall and Rise of Qualified Immunity: From Hope to Harris, 9 Nev. L. J. 185, 186 (2008)). [Return to Text]

47. Harlow v. Fitzgerald, 457 U.S. 800 (1982). [Return to Text]

48. Id. at 818. [Return to Text]

49. Anderson v. Creighton, 483 U.S. 635, 640 (1987). [Return to Text]

50. Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (emphasis added). [Return to Text]

51. Malley v. Briggs, 475 U.S. 335, 341 (1986). [Return to Text]

52. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (“The entitlement is an immunity from suit rather than a mere defense to liability.” (emphasis in original)); see also Pearson v. Callahan, 555 U.S. 223, 231–32, 237 (2009) (citing Anderson, 483 U.S. at 640 n. 2; Hunter v. Bryant, 502 U.S. 224, 227 (1991)). [Return to Text]

53. Saucier v. Katz, 533 U.S. 194, 201 (2001). [Return to Text]

54. Id. [Return to Text]

55. Id. [Return to Text]

56. Pearson, 555 U.S. at 236.  This Comment has adopted the term “Saucier protocol” used in Pearson to describe the mandated analysis of both Harlow prongs created in Saucier. [Return to Text]

57. Id. at 237–39.  The Court offered an extensive list of problems that resulted from the rigid command of Saucier.  The Court pointed out that factual briefing at the pleading stage was often inadequate to determine the nature of the violation or that the facts were sometimes so idiosyncratic that any evaluation of the rights would be inapplicable to any other case.  Id.  Other times, the analysis would be a waste of a court’s time as a higher court may be evaluating the right concurrently, which would moot any decision the court makes.  Id. at 238.  In some cases, constitutional violations are tied to questionable state laws and would therefore lack precedential importance.  Id. at 239.  The Court also challenged circumstances where defendants would have to deal with adverse constitutional interpretation, which they were unable to appeal because they received a favorable ruling.  Id. at 240. [Return to Text]

58. Id. at 236. [Return to Text]

59. Id. [Return to Text]

60. Frasier v. Evans, 992 F.3d 1003, 1013–14 (10th Cir. 2021). [Return to Text]

61. Id. at 1015. [Return to Text]

62. Id. at 1015–19. [Return to Text]

63. Id. at 1019. [Return to Text]

64. Id. [Return to Text]

65. Id. at 1020. [Return to Text]

66. Id. at 1021. [Return to Text]

67. Id. [Return to Text]

68. See ACLU of Ill. v. Alvarez, 679 F.3d 583, 608 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995). [Return to Text]

69. Frasier, 992 F.3d at 1022. [Return to Text]

70. Fields v. City of Philadelphia, 862 F.3d 353, 362 (explaining that the law in the Third Circuit before 2017 was unclear and that another circuit had clarified the issue earlier that year as well). [Return to Text]

71. Frasier, 992 F.3d at 1022–23.  Notably, none of the language the court cited refuted the idea that a right exists.  Id.  The courts merely remarked that the right was not clearly established at the time. [Return to Text]

72. Id. [Return to Text]

73. See id. at 1019–23. [Return to Text]

74. See id. at 1020 n.4. [Return to Text]

75. Id. [Return to Text]

76. See id.  The court did not detail why it felt the facts were lacking or explain how a theoretical holding based on these facts would create a broad or unmanageable right that would prejudice officers.  See id. [Return to Text]

77. Id. at 1023. [Return to Text]

78. See supra notes 33–34 and accompanying text. [Return to Text]

79. Although the Tenth Circuit did not deny the right’s existence, its explicit refusal to make the determination signaled that the right is still not clearly established, and it also signaled that it was reluctant to make the determination.  See Frasier, 992 F.3d at 1020 n.4.  This has already had repercussions in the circuit, where at least one district court cited Frasier in granting qualified immunity on another potential First Amendment violation without determining the existence of the right.  See Brief of Amici Curiae the Reporters Committee for Freedom of the Press and 44 Media Organizations in Support of Petitioner, Frasier v. Evans, 992 F.3d 1003 (10th Cir. 2021).  As explained below, this may as well say the right does not exist because the precedent made here created a circumstance in which it is practically impossible to ever get the court to decide the issue.  See infra notes 111–12 and accompanying text. [Return to Text]

80. See infra notes 92–96, 100–04 and accompanying text. [Return to Text]

81. See infra Section IV, C. [Return to Text]

82. See Slaughter, supra note 36, at 121–23; see also Brief of Amici Curiae First Amendment Legal Scholars in Support of the Petition for Writ of Certiorari, Frasier v. Evans, 992 F.3d 1003 (10th Cir. 2021). [Return to Text]

83. See Slaughter, supra note 36, at 122 (explaining how the death of Michael Brown would have better informed the public if it had been recorded like the Rodney King beating); see also Brief of Amici Curiae the Reporters Committee for Freedom of the Press and 44 Media Organizations in Support of Petitioner, supra note 79. [Return to Text]

84. See Stephanie Johnson, Comment, Legal Limbo: The Fifth Circuit’s Decision in Turner v. Driver Fails to Clarify the Contours of the Public’s First Amendment Right to Record the Police, 59 B.C. L. Rev. E. Supp. 245, 260 (2018). [Return to Text]

85. See Brief of Amici Curiae the Reporters Committee for Freedom of the Press and 44 Media Organizations in Support of Petitioner, supra note 79. [Return to Text]

86. See, e.g., Turner v. Driver, 848 F.3d 678, 688 n.3 (5th Cir. 2017) (explaining that the court needed to evaluate the right as it was a frequent issue in collected cases). [Return to Text]

87. See supra notes 36–41 and accompanying text. [Return to Text]

88. Mills v. Alabama, 384 U.S. 214, 218 (1966). [Return to Text]

89. See infra notes 93–96, 112–14 and accompanying text. [Return to Text]

90. See supra notes 48, 53–59 and accompanying text. [Return to Text]

91. Frasier v. Evans, 992 F.3d 1003, 1020 n.4 (10th Cir. 2021); see also Defendants-Appellants’ Opening Brief at 21–38, Frasier v. Evans, 992 F.3d 1003 (10th Cir. 2021) (limiting their argument to the law not being clearly established and that Mr. Frasier’s detainment was not retaliatory); Defendants-Appellants’ Reply Brief at 16–18, Frasier v. Evans, 992 F.3d 1003 (10th Cir. 2021) (making only a jurisdictional argument as to whether the court can address the constitutional right with respect to the facts of the case). [Return to Text]

92. Frasier, 992 F.3d at 1020 n.4. [Return to Text]

93. See id. at 1019 (“Judicial decisions are the only valid interpretive source of the content of clearly established law” (emphasis added)) (“[I]t is ‘emphatically the province and duty of the judicial department to say what the law is.” (quoting Marbury v. Madison, 5 U.S. 37, 177 (1803))); see also District of Columbia v. Wesby, 138 S. Ct. 577 (2018). [Return to Text]

94. Cf. Taylor v. Riojas, 141 S. Ct. 52, 54 (2020) (holding that when official conduct is so egregious there is an exception to the rule that judicial interpretation is the only source of law; therefore, it should have been obvious to the official that they were violating the Constitution). [Return to Text]

95. Cf. infra notes 111–14 and accompanying text (explaining that officials are left in the dark when trying to determine the contours of what is or is not constitutionally permissible without the guidance of the court); see also Joanna C. Schwartz, How Qualified Immunity Fails, 127 Yale L. J. 2, 69–70 (2017). [Return to Text]

96. Frasier, 992 F.3d at 1020 n. 4 (“We do not consider, nor opine on, whether Mr. Frasier actually had a First Amendment right . . . . [Instead, we] bypass the constitutional question of whether such right even exists . . . . We nonetheless thank amici for their helpful briefing on the issue.”).  The worst part of the court’s unwillingness to evaluate the existence of the right was that it did not even cite authority that would preclude them from doing so.  See id.  There is binding precedential authority that authorizes the court to actually consider the right at its discretion.  See Pearson v. Callahan, 555 U.S. 223, 236–37 (2009) (explaining that adhering to the Saucier two-step protocol is still necessary to promote “the development of constitutional precedent”).  Furthermore, the court was content to deride Mr. Frasier for citing non-binding authority from other circuits.  See generally Frasier, 992 F.3d at 1022–23.  Yet, the court was content to cite a NYU law journal article—barely persuasive authority, let alone binding authority—as an essential justification for shrugging off its responsibility and avoiding the constitutional question.  See id. at 1020 n. 4. [Return to Text]

97. See Pearson, 555 U.S. at 236–41 (detailing the pros and cons of adhering strictly to the Saucier protocol). [Return to Text]

98. See supra note 57. [Return to Text]

99. Pearson, 555 U.S. at 234–41. [Return to Text]

100. See supra notes 23–27, 91 and accompanying text. [Return to Text]

101. Frasier, 992 F.3d at 1020 n. 4. [Return to Text]

102. Frasier and numerous amici briefed the First Amendment in the context of a right to record public officials at length.  See generally Response Brief of Plaintiff-Appellee Levi Frasier, Frasier v. Evans, 992 F.3d 1003 (10th Cir. 2021); see also Brief for ACLU, American Civil Liberties Union Foundation of Colorado, Cato Institute, and Institute for Justice as Amicus Curiae Supporting Appellee, Frasier v. Evans, 992 F.3d 1003 (10th Cir. 2021).  Even though Frasier’s briefing was focused on the clearly established prong, it was nonetheless an argument for the existence of the right as it is inextricably intertwined with the clearly established prong.  See Response Brief of Plaintiff-Appellee Levi Frasier, supra.  The officers’ reply acknowledged Frasier’s prayer to evaluate the facts to determine the violation of a First Amendment right but instead argued for the court to exercise its discretion.  See Defendants-Appellants’ Reply Brief, supra note 91. [Return to Text]

103. Frasier, 992 F.3d at 1020 n. 4. [Return to Text]

104. Pearson, 555 U.S. at 236; Saucier v. Katz, 533 U.S. 194, 201 (2001) (“The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer’s conduct was unlawful in the circumstances of the case.”). [Return to Text]

105. See generally Irizarry v. Yehia, No. 20-cv-02881-NYW, 2021 U.S. Dist. LEXIS 106988 (D. Colo. June 8, 2021) (granting immunity to an officer for harassing a journalist blogger trying to record a DUI stop in an effort to disrupt the recording); Mocek v. City of Albuquerque, 813 F.3d 912 (10th Cir. 2015) (deciding whether it was clearly established to record officials at an airport screening station); Sandberg v. Englewood, Colo., 727 F. App’x 950, 951 (10th Cir. 2018) (granting immunity to officers that denied an individual’s request to record his own arrest); see also Turner v. Driver, 848 F.3d 678, 687–90 (2017) (“[T]he issue continues to arise.”). [Return to Text]

106. Turner, 848 F.3d at 687–90 (recognizing that the issue frequently arises in the qualified immunity context, the court decided to evaluate the right). [Return to Text]

107. The dissent complained that the majority did nothing more than spout dicta creating an overly broad right that was not grounded in the facts.  Id. at 697 (Clement, J. dissenting).  Notably, the dissent was not upset that the majority made the decision, just that it did not define the right narrowly based on the facts.  Id.; see also Johnson, supra note 84 at 260–61 (explaining the facts in Turner were adequate for the court to define the contours of the right). [Return to Text]

108. Cf. Johnson, supra note 84, at 260–61 (explaining the process of making a proper determination using the facts in Turner). [Return to Text]

109. Turner, 848 F.3d at 697 (Clement, J. dissenting) (quoting Gilk v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011)). [Return to Text]

110. See supra notes 9–14 and accompanying text. [Return to Text]

111. Because the officers would have ultimately received a favorable ruling, they would have been prevented from appealing a determination that their actions violated a constitutional right.  See supra note 57.  However, the officers did not contest the constitutionality nor did the City and County of Denver because they acknowledged that the right did exist even though it was not clearly established.  Frasier, 992 F.3d at 1012.  The facts of this case obviate the possibility that the officers or Denver would be adversely affected by a constitutional determination that a right to record officers exists. [Return to Text]

112. See Zadeh v. Robinson, 902 F.3d 483, 498 (5th Cir. 2018) (Willet, J., concurring) (“To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.” (emphasis in original)). [Return to Text]113

113. Cf. id. (arguing under the assumption that courts will decide whether an official’s action violates the Constitution). [Return to Text]

114. See Schwartz, supra note 95, at 69–70. [Return to Text]

115. See supra notes 54–55, 95, 97, 104–05 and accompanying text. [Return to Text]

116. Pearson v. Callahan, 555 U.S. 223, 236 (2009). [Return to Text]

117. Perhaps the Court could create a test to evaluate if it would be a prudent exercise to determine whether the law needs explanation and whether the case before a court would factually assist in making that explanation. [Return to Text]