Qualified Immunity

Cops Tried To Force a Man To Delete a Video of Them Beating a Suspect. They Got Qualified Immunity.

The officers knowingly violated the First Amendment, said the court. But that doesn't matter.


In August 2014, Levi Frasier filmed Denver cops beating a suspect during an arrest for an alleged drug deal. The officers punched the accused six times in the face, and when a woman approached the scene screaming, a different cop clutched her ankle, tossing her to the ground—all captured on film.

The officers didn't take kindly to the latter point. After the arrest, they surrounded Frasier, searched his tablet without a warrant, and attempted to delete the resulting video. In doing so, a federal court this week acknowledged that the officers violated the First Amendment, with the judges noting that the city's police training had taught the officers as much: There's a constitutional right to record government agents making a public arrest.

The same court ruled that the cops are protected by qualified immunity, the legal doctrine that shields state actors from civil suits unless a previous court precedent outlines a case with almost exactly the same factual circumstances.

Known as the "clearly established law" test, that standard is supposed to protect public officials from shallow litigation. In reality, it often allows the government to skirt responsibility for alleged misconduct, no matter how blatant. Consider the cops who allegedly stole $225,000 while executing a search warrant, or the cops who assaulted and arrested a man for standing outside of his own house, or the cop who shot a 10-year-old child. All were given qualified immunity—not because their conduct wasn't unconscionable, but because pre-existing case law didn't expressly say so.

That standard is alive and well here. "[T]he district court was wrong to deny the officers qualified immunity based on their knowledge of Mr. Frasier's purported First Amendment rights that they gained from their training," wrote Judge Jerome A. Holmes of the U.S. Court of Appeals for the 10th Circuit. "Judicial decisions are the only valid interpretive source of the content of clearly established law; whatever training the officers received concerning the First Amendment was irrelevant to the clearly-established-law inquiry."

In other words: Although the officers knew their behavior was unlawful, the public cannot hold them accountable because, in the eyes of qualified immunity, they weren't equipped with that knowledge in the right way. A court precedent is the only avenue in which a public servant can appropriately and unquestionably know what conduct violates someone's rights, wrote Holmes, as if cops are casually perusing case law texts for instruction.

Frasier also brought a civil conspiracy claim against the officers, who again sought protection under qualified immunity. The district court denied them that request. The 10th Circuit reversed.

"Because we have concluded that the officers are entitled to qualified immunity on Mr. Frasier's First Amendment retaliation claim based on the absence of clearly established law," the court said, "it necessarily follows that they also are entitled to qualified immunity on his conspiracy claim insofar as it alleges a conspiracy to retaliate against him in violation of the same First Amendment right."

The Supreme Court has notoriously been unwilling to conduct a wholesale reevaluation of qualified immunity. In fact, the Court specifically demurred at the opportunity to review every qualified immunity case mentioned above.

It's a rich refusal considering that the Court itself breathed qualified immunity into existence. Though it is not the job of nine justices to legislate for the country, that's precisely what they did in creating the first iteration of the legal doctrine in Pierson v. Ray (1967), refining it to its current application—that "clearly established" part—as outlined in Harlow v. Fitzgerald (1982).

In its current session, however, the Supreme Court has been willing to send subtler messages to lower courts about just how rigorous a standard qualified immunity should be. In November, the justices reversed the ruling in Taylor v. Riojas (2020), in which the U.S Court of Appeals for the 5th Circuit awarded qualified immunity to a group of prison guards who forced a naked psychiatric-unit inmate into two filthy cells, one lined with "massive amounts" of human feces and the other with raw sewage overflowing from a clogged floor drain. The Court did the same last month when it ordered the 5th Circuit to reconsider a decision in which they gave qualified immunity to a correctional officer who pepper-sprayed an inmate without provocation.

Holmes recognized this trend, tipping his hat to the recent decision in Taylor. As with any guidance from the high court, he conceded that it should be his lodestar. And yet such guidance still isn't enough in this case, he concluded.

"Mr. Frasier's attempt to distill a clearly established right applicable here from the general First Amendment principles protecting the creation of speech and the gathering of news," the judge said, "runs headfirst into the Supreme Court's prohibition against defining clearly established rights at a high level of generality."

As with any qualified immunity decision, the ruling rests on reasonableness. A reasonable officer could reasonably believe that the First Amendment doesn't apply to filming public arrests, Holmes explained. Basic principles attached to both the free press and free speech didn't make it obvious enough. The courses the officers received in which the government explicitly told them that their actions infringed on the Constitution didn't make it obvious enough.

What, then, would make such an act unreasonable? If an armed agent of the state cannot be expected to apply his or her training to the job, then perhaps we're holding the government to too low a standard.

NEXT: The Derek Chauvin Trial Begins: Dispatch From Minneapolis

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  1. > A reasonable officer could reasonably believe that the First Amendment doesn’t apply to filming public arrests, Holmes explained.

    No. No they really couldn’t. That is, in fact, completely unreasonable.

    Is this some sort of notional 4D chess bullshit? Is Holmes trying to *force* SCOTUS to issue a more restrictive set of QI guidelines by making a frankly insane ruling here?

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    2. I’m hoping and actually think that’s exactly what this court did yet I fear SCOTUS will still ignore it given their great fear of actually defining it (and be accused of legislating from the bench) or being forced to admit it was bad decision from the start.

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    3. SCUTOS will punt or at best rule per curium. No way they hear it: that would highlight the fact that they made up the “law” in the first place in clear violation of the legislation, and that’s something Roberts can’t abide.

      1. SCOTUS dang it

    4. Yeah, this has been clearly established by the courts for many years now. This judges ruling simply ignores precedent along with the black letter of the law.

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  2. …whatever training the officers received concerning the First Amendment was irrelevant to the clearly-established-law inquiry.

    The one time the law trumps internal policy.

  3. If you SEE something, SAY something!

  4. They would have been justified shooting them for being on public property.

  5. So we now have a court ruling that the constitution is NOT clearly established law.

    The fascists have won.
    Masking forever. Internal passports. Gun confiscation. Surveillance cameras. Warrantless searches on suspicion alone. US Capitol occupation made permanent. Full internet censorship.

    1. I agree. This ruling is a blatant use of the constitution as rectal wiping paper. Judge Holmes pretty clearly acknowledged that a SCOTUS precedent trumps the the Bill of rights, internal police standards (for once), and basic common sense. Is there an attorney here that can give at least a legalistic bs rationalization for this decision? This Judge’s explanation inverts everything I thought even courts of the kangaroo variety pretended use as guiding principles. Are we this far gone? Am I missing something?

    2. Not only that, no law is “clearly established” until the courts rule on it

      >Judicial decisions are the only valid interpretive source of the content of clearly established law

      So it’s official that according to the 10th circuit police can only be sued for violations of enumerated precedents.

      1. That works for us as well, right?

        Yeah, didn’t think so.

        Anyone who would leave these idiots on the bench should be drawn and quartered. They keep making up new authorities and immunities out of whole cloth. I thought it was bad when Harry Connick’s dad got to walk on running a office that routinely framed people.

  6. Expect more of this now that Biden and his left wing cronies are in power.

  7. Is any SC justice actually trying to take on a case like this?

  8. This is our fault. We are not holding our courts accountable.

    Because of many factors, particularly the distraction of the abortion issue, judges are not being vetted properly. And then once on the bench, nobody is bothering to supervise their behavior.

    The idiots on the right and the left keep appointing authoritarian activists who have great passion for protecting the power of the state.

    Even egregious misconduct from the bench does not even draw a rebuke. We are getting the government we deserve because we do nothing about it.

    1. I dunno, ACB and Gorsuch seem like they’ve been pretty OK. Thomas has been solid.

      Kavanaugh and Roberts have been kinda weak – nothing like the ice-veined Nazi’s we were told they were. Alito is generally reasonable. Sotomayor and Kagan have been pretty ridiculous on most libertarian issues but sometimes they surprise you.

    2. Who are “we” to hold SCOTUS accountable?
      The only ones who can are the house and the senate.
      All “we” can do is voice our displeasure.
      Only congress can DO anything either by legislation or impeachment.

      1. And Trump and McConnell have packed the Supreme Court with three hacks who are not serious students of the law. Amy Coney Barrett never tried a case as a judge. She is not qualified for her position. The situation will deteriorate further with these idiots on the Court.

    3. We are not holding our courts accountable.

      Sounds like a 2nd Amendment issue. Wink, wink.

    4. I have to agree with that 1000%. When people correct their severe cases of cranio-rectal inversion and actually WATCH WHAT THESE SCUM DO VS. WHAT THEY SAY and start recalling every stinkin’ loser in a black robe they possibly can, then maybe the courts will start to pay attention and respect the rights of those who put them in office.

  9. “Mr. Frasier’s purported First Amendment rights’

    Our purported constitutional rights. Jesus fucking christ. These mfers.

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  10. Remember this shit the next time you read something about that debate about the founding fathers even needed to write down the Bill of Rights. Some of them actually thought the rightz would be obvious to everyone.

  11. why these people doing this…shame on him

  12. End police brutality. Its happening everywhere.
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  13. Why does the Constitution even come into this case? THE COPS ATTEMPTED TO DESTROY EVIDENCE! If the police department never taught them not to do that, the entire top part of the heirarchy ought to be fired.

    1. “What, then, would make such an act unreasonable? If an armed agent of the state cannot be expected to apply his or her training to the job, then perhaps we’re holding the government to too low a standard.”

      Too few members of the public actually give a crap about this because it doesn’t affect the majority of them. Only when this issue touches them or theirs PERSONALLY will they begin to care enough to make noise and hold police and judges, prosecutors, etc. accountable for these types of egregious abuses and rulings.

    2. The police officers are ultimately agents of the state, and the state is likely invoking sovereign immunity on their behalf in state court. Which means they can only really be sued in federal court, and for that you need a federal cause of action (such as a First Amendment violation.)

    3. That’s the problem. The hierarchy DID teach them not to do that–and now the Courts are letting them get away with doing it !

  14. Just the 1st Amendment? What about the 4th and 5th? What about stealing someone’s property and attempting to destroy it, cop or no?

  15. No one is EVER going to rein in the police. Why? They are all a part of the same bird; the government. Courts, prosecutors, and police/law enforcement at county, city, state, and federal levels.

    1. No one is EVER going to rein in the police. Why?

      There was a serious possibility of qualified immunity reform for a short period in 2020, but BLM and Friends fucked that up.

  16. I will have to remember to use the phrase “clearly established” in the future if I am ever involved in testifying in court. Since the courts seem to enjoy using as a get out of jail free phrase.

  17. LEO’s do NOT have to know the law. What a bunch of horseshit!

    1. I mean, qualified immunity would be valid if it were more limited. Imagine a cop arresting someone for an abortion in 1972 and then all of a sudden the courts decide that it’s a fundamental right – the person being arrested shouldn’t be able to sue the cop because the courts invented a right.

      But there really needs to be some good faith requirement. It shouldn’t matter that you didn’t know that it was specifically a *constitutional* violation if you obviously knew what you were doing was prohibited (even if that constitutional violation is necessary for the federal courts to have jurisdiction in the first place.)

  18. When all participants of a “system” are feeding from the same nose-bag, free from competition — and are allowed (by your neighbors and friends — hopefully not you) to
    • Make the laws,
    • Enforce the laws,
    • Prosecute the laws,
    • Hire the prosecutors,
    • License the “defense” attorneys,
    • Pay the “judges”,
    • Build the jails,
    • Contract jails out to private entities,
    • Employ and pay the wardens,
    • Employ and pay the guards,
    • Employ and pay the parole officers,
    One can’t honestly call it a “justice” system. It’s a system of abject tyranny.

  19. I always enjoy watching the bench pretend the only thing stopping them from punishing their friends for breaking the law is that gall darn qualified immunity that stops me from doing the right thing!

    Meanwhile, they have no trouble blatantly ignoring and overriding existing law in service to their friends in the police and prosecutor’s office.

    You soon realize that judges are not there to enforce the law and follow due process, but to ensure those the law is never enforced against those in law enforcement. If we took qualified immunity away from them tomorrow they would simply find some new excuse to shield law enforcement from any type of accountability.

    Because they wear the black robes that Brandeis and Holmes did they expect us to respect them regardless of their current behavior. I think the public is finally getting fed up.

  20. This is the kind of ruling that motivates those who want to enact legislation to end qualified immunity. These officers acted illegally AND in direct violation of their training and are still being protected by the courts.

  21. ACAB.

  22. Another vantage point to consider: All police chiefs and agency heads are legally required to take a “constitutional Oath of Office”. Any practices that violates the Oath of Office are NOT official duties and therefore Qualified Immunity doesn’t protect those activities outside of constitutional legal boundaries.

    Violating anyone’s First Amendment rights is not an official duty of any official in the USA – from cops to FBI to Homeland Security – they have no such authority.

  23. “All police chiefs and agency heads are legally required to take a ‘constitutional Oath of Office’.”

    Great, we’ll include that one with “A prosecutor is also an Officer of the Court” for a good laugh at the next party,

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  25. Reason missed a great opportunity with this article by failing to “name and shame” the officers in question. Just because the courts didn’t do the right thing is no reason for the press to protect the officers via anonymity.

    1. >Public records said uniformed Denver Police Officers, Charles “Chris” Jones IV and his partner, Christopher Evans, arrived as back-up to assist with the arrest.

      The videotape shows Evans holding down the suspect’s legs. A burly undercover officer can be seen bear-hugging Flores, lying on his side on the asphalt parking lot. Flores has his hands pinned behind his back.

      Jones can be heard yelling at Flores to, “Spit the drugs out! Spit the drugs out!”

      When Flores fails to open his mouth, Jones punches him with a closed fist six times in the face.

      The video shows the suspect’s head bouncing off the pavement as a result of the force.

      This photo shows cuts and bruises on David Flores’ head
      This photo shows cuts and bruises on David Flores’ head.
      We also obtained exclusive pictures of Flores inside an ambulance a short time later, which show obvious trauma to his head and face.

      Levi Frasier is the bystander who videotaped the arrest.


    2. Actually, I think Reason did the right thing–because these officers have families that should not have to endure what some people would do if their identities were known.

  26. There seems to be very little logic and commonsense in the decisions coming down from federal courts from at all levels and from all circuits. This is a worrisome trend. When the courts continually release decisions which seem to make little to no sense it is generally because change is in the wind from a direction and of a magnitude that is being obscured in order to deceive the people as to the rationale and genesis behind it.
    Are they creating odd precedent so as to allow them more latitude in future decisions which make even less sense? Are they muddying the waters in order to make virtually all decisions seem reasonable, even those which plainly are not?
    I have never before seen such a rash of eclectic decisions and unusual alliances on so varied a group of topics as there has been recently and this is particularly the case in regards to the Supreme Court. When taken in context with the troubled times we are experiencing it just adds another level of uncertainty to the troubling ambiance I feel in general and it is one which I do not welcome at all.
    There is a sense, at least in my mind, that the government, or rather a certain ideological side of it, is able to operate without constraints of any sort, be they concern for the law, for the constitution or any boundaries based on accepted norms at all while those who do not subscribe to their philosophy are persecuted by out of control prosecutors and tried in an out of control judicial system which no longer is capable of discerning right from wrong, up from down or light from darkness. Further this is a situation which has not come about by chance, it appears to been implemented as part of a plan.
    This is certainly something which to my way of thinking bears watching at the least as it may shortly demand action if it remains on it’s present trajectory.

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