Supreme Court Asked to Consider Relevance of Officer Training, Subjective Knowledge to Qualified Immunity Defense
This case law update was written by James P. Garay Heelan, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2012. Mr. Heelan represents federal personnel across the Executive Branch, including career senior executives, law enforcement officers, foreign service officers, intelligence officers, and agencies in matters of federal personnel and employment law.
Whether law enforcement officers are entitled to qualified immunity when they knowingly violated their training by retaliating against a person for filming an arrest the officers made in public, was submitted this month for the U.S. Supreme Court’s consideration.
On August 14, 2014, Detective John Bauer and Sergeant Russell Bothwell of the Denver Police Department arrested David Flores in a parking lot, on suspicion of drug activity. As Detective Bauer pinned Flores against his car, Flores “removed a sock from his waistband and stuffed it in his mouth,” and ignored officer requests to “spit it out.”
Levi Frasier observed the arrest from nearby in the parking lot. As additional backup arrived, Frasier started video-recording the event using his tablet computer. Frasier then video-captured one officer pin his forearm to Flores’s head, while another officer punched Flores “in the face six times in rapid succession.” He also recorded as Flores’s pregnant girlfriend approached and one officer “grabbed her ankle and pulled her off her feet” causing her to fall onto her stomach and face.
Sergeant Bothwell then called out “Camera!” and Frasier stopped recording. As Frasier returned to his parked car, one officer asked him to bring is his identification and video of the arrest of the officer’s patrol car. Officers then repeatedly questioned Frasier about his recording, “encircled” him and demanded the video. One officer then “grabbed the tablet out of [Frasier’s] hands” and began searching for the video of the arrest. Frasier objected to the warrantless search, but the officer continued searching the tablet.
The searching officer announced that he did not see any video, and another officer said “As long as there’s no video, it’s okay…[I]f there’s just a photo, that’s fine, as long as there’s no video.” The officers then gave Frasier his tablet and driver’s license, and he left.
After the incident, Frasier gave a copy of the arrest video to the Denver Police Department and a local news outlet. Frasier subsequently sued officers and the City and County of Denver in a Section 1983 lawsuit, in part claiming that the officers violated the First Amendment by retaliating against him for filming them while performing their duties in public.
In U.S. District Court, the officers moved for summary judgment on qualified immunity grounds. The court ultimately denied that motion, after receiving evidence that the Denver Police Department had long-trained officers that the public has the right to record them performing their official duties in public spaces, and the defendant officers’ testimony that they knew their conduct violated Frasier’s rights. Quoting Supreme Court precedent, the district court held that qualified immunity does not protect “those who knowingly violate the law.”
The officers appealed the denial of qualified immunity on Frasier’s First Amendment claim to the U.S. Court of Appeals for the Tenth Circuit. The appeals court reversed, holding the district court erred in considering the officers’ training an law enforcement policies. First, the court held “[j]udicial decisions are the only valid interpretive source of the content of established law” for qualified immunity reasons, making the officers’ subjective knowledge of Frasier’s rights irrelevant. Second, the court held there was a “circuit split” on whether it is “clearly established” that the public has a First Amendment right to record law enforcement.
This month, with representation from private practice and the Stanford Law School Supreme Court Litigation Clinic, Frasier petitioned the Supreme Court to hear his case. Frasier asks the Supreme Court to consider whether first, whether training or law enforcement policies can be relevant to whether a police officer is entitled to qualified immunity; and second, whether it has been “clearly established” that the First Amendment protects the right of individuals to record police officers carrying out their duties in public.
Supreme Court observers expect the court to request the officers to respond to Frasier’s petition, for the court to consider whether to hear the case. FEDagent will report if the Supreme Court accepts the petition and hears oral argument on the case.
You can read the full petition for review in Frasier v. Evans, et al.
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