The Supreme Court Will Decide If the First Amendment Grants the Right to Film Cops – The New Republic

Heres where the qualified-immunity jurisprudence really goes off the rails. At one point, courts would follow a two-step process: First, did such a right exist? Second, was that right clearly established at the time? Then, in its 2009 decision in Pearson v. Callahan, the Supreme Court unanimously ruled that the two-step process was no longer mandatory, freeing the lower courts to decide the factors in whatever order they chose. Unsurprisingly, more than a few courts opted to simply figure out whether something was clearly established at the time rather than rule upon the deeper constitutional question. The result, as critics like Judge Don Willett have observed, is not just constitutional stagnation, but a catch-22 process where some rights never get clearly established by federal courts at all.

Thats what the Tenth Circuit opted to do in this case. We do not consider, nor opine on, whether Mr. Frasier actually had a First Amendment right to record the police performing their official duties in public spaces, the panel concluded. We exercise our discretion to bypass the constitutional question of whether such right even exists. In doing so, we are influenced by the fact that neither party disputed that such a right exists (nor did the district court question its existence). And because we ultimately determine that any First Amendment right that Mr. Frasier had to record the officers was not clearly established at the time he did so, we see no reason to risk the possibility of glibly announc[ing] new constitutional rights in dictum that will have no effect whatsoever on the case.

So, heres the end result if the Tenth Circuits decision stands: Since the panel ruled that filming the police wasnt a clearly established right when Frasier did it in 2014, the officers in that encounter will receive qualified immunity and defeat Frasiers civil rights lawsuit. And because the Tenth Circuit declined to clearly establish such a right in this casethanks to the officers litigation tactic to not dispute its existenceother Denver police officers could violate other Coloradans First Amendment right to film them, and then claim qualified immunity again if theyre sued for it. Constitutional stagnation indeed.

Frasier urged the court to reassess how lower courts determine whether something is clearly established and overturn the Tenth Circuits narrow interpretation of it. The qualified-immunity doctrine was created to prevent officers from being held unexpectedly liable based on constitutional rules they neither knew nor should have known existed, he told the court, quoting a 1982 Supreme Court case. The officers here all testified that they knew they were violating [Frasiers] rights. Their training, department policies, and precedent all underscored that reality. Whatever the outer boundaries of qualified immunity may be, this case is far beyond them.

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The Supreme Court Will Decide If the First Amendment Grants the Right to Film Cops - The New Republic