Yet Another Court Affirms the First Amendment Right To Record Police

The Supreme Court still refuses to weigh in on the issue.

When YouTube journalist and blogger Abade Irizarry tried to film several police officers conducting a DUI traffic stop in May 2019, Officer Ahmed Yehia of Colorado's Lakewood Police Department blocked Irizarry's view of the incident, pointed a bright flashlight at his camera lens, and drove at Irizarry with his police cruiser. 

Irizarry sued, arguing that Yehia violated his First Amendment rights. The U.S. District Court for the District of Colorado ruled that Yehia had qualified immunity because he could not be expected to know that his precise actions would violate the law. The court wrote that Irizarry "failed to direct the court to a case which demonstrates that Officer Yehia was on notice that his conduct—standing in front of and shining a flashlight into Plaintiff's camera for an unknown period of time—violated Mr. Irizarry's First Amendment rights."

However, on Monday, the U.S. Court of Appeals for the 10th Circuit reversed the lower court and revoked Yehia's qualified immunity, writing that Irizarry's lawsuit "alleged a First Amendment retaliation claim under clearly established law." The ruling expands the number of federal court districts that now recognize filming the police as a protected First Amendment activity.  

"Irizarry has shown that a reasonable officer would know that this conduct would chill a person of ordinary firmness from continuing to engage in protected activity," reads the ruling. "It follows that a reasonable officer also would know that Officer Yehia committed a First Amendment retaliation violation when Mr. Irizarry's protected activity motivated Officer Yehia's actions."

The 10th Circuit explicitly said that the lower court erred in claiming that Irizarry's suit covered only Yehia blocking his view and shining a light into his camera, and correctly noted that Irizarry's complaint "alleged that all of Officer Yehia's actions, including driving and honking at Mr. Irizarry, violated his First Amendment rights."

This detail is particularly important, as Yehia's most egregious actions occurred behind the wheel of a police cruiser—and were all but ignored by the lower federal court that had granted him qualified immunity. According to the 10th Circuit's ruling, after being told by other officers to stop harassing Irizarry and fellow journalist Eric Brandt, Yehia entered his cruiser, then "drove right at [Irizarry] and Mr. Brandt, and sped away." After taking one threatening pass at the men, Yehia pulled a u-turn and "gunned his cruiser directly at Mr. Brandt, swerved around him, stopped, then repeatedly began to blast his air horn at [the two men]." The U.S. District Court for Colorado granted qualified immunity without considering Yehia's most dangerous—and arguably most speech-chilling—actions.  

The ruling makes the 10th Circuit the seventh court jurisdiction to find that individuals have a clearly established right to record police activity. However, the Supreme Court has declined to rule on the matter outright. For now, individuals' ability to record police—and to sue when that right is obstructed by officers—is contingent on the jurisdiction in which they reside.