Free Speech

Police Officer's Intentionally Blocking Citizen Videorecording Could Violate First Amendment


From Magistrate Judge Nina Y. Wang in Irizarry v. Yehia (D. Colo.), decided yesterday:

"[N]ews gathering is an activity protected by the First Amendment." … [T]his right is not limited to professional journalists or established media companies: "The First Amendment right to gather news is, as the Court has often noted, not one that inures solely to the benefit of the news media; rather, the public's right of access to information is coextensive with that of the press." …

With these principles in mind, the court agrees that "[g]athering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting 'the free discussion of governmental affairs.'" Mr. Irizarry alleges that he recorded government officials performing their official duties in a public space [in this case, engaging in a traffic stop -EV] for the purpose of disseminating the collected information to the public. Indeed, Mr. Irizarry describes himself as a "journalist who regularly publishes stories about police brutality and conduct or misconduct."

He further alleges that Officer Yehia intentionally turned on all of his lights and positioned himself in front of Mr. Irizarry to purposefully obstruct Mr. Irizarry's ability to record the DUI stop. Plaintiff further alleges that Defendant took these actions in response to his recording, as he readjusted his position to make sure he was obstructing the camera view of the sobriety test and, after being criticized for such actions, "pulled out a large, extremely bright flashlight and began to shine it in both the plaintiff's camera as well as Mr. Brandt's saturating the camera sensors." …

Taking these facts as true as it must at this juncture, the court concludes that Mr. Irizarry has alleged sufficient facts at this stage to sufficiently allege a First Amendment violation based on either a theory of prior restraint or retaliation, i.e., that he was recording police conduct in a public forum and Officer Yehia's conduct did not amount to a reasonable time, manner, or place restriction….

The court concluded, though, that in this case the law wasn't sufficiently clearly established, and therefore Officer Yehia was entitled to qualified immunity:

Although there are a number of pre-2019 Circuit cases identifying a First Amendment right to record the police in public spaces while the police are performing their official duties, the court finds that Mr. Irizarry has 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. In other words, the court concludes that the cases cited by Plaintiff do not demonstrate "that a reasonable official would understand that what he is doing violates [the constitutional] right."

The court noted that past cases involved arrest, detention, and credible threat of prosecution, and not just interference with newsgathering. The court also noted two past cases that found no First Amendment violation based on such interference:

In Asociación de Periodistas de Puerto Rico v. Mueller, No. 06-1931 (JAF), 2007 WL 5312566 (D.P.R. June 12, 2007), aff'd in part, vacated in part on other grounds, remanded, 529 F.3d 52 (1st Cir. 2008), a number of individuals and media organizations alleged that their First Amendment rights had been violated when agents from the Federal Bureau of Investigation ("FBI") "intentionally interfered with the gathering of information and news" by "violently knock[ing] aside microphones and cameras in an attempt to prevent [an] event from being recorded" and when one agent "used his hand to block a video camera lens." Id. at *4. In the summary judgment context, the court concluded that the plaintiffs had failed to allege a violation of their First Amendment rights, noting that the plaintiffs "[d]id not contend that law enforcement instructed them to stop recording the event, … that the agents threatened to arrest them," or "that the agents asked Plaintiffs to turn over their cameras or film in violation of the First Amendment.". The court indicated that it was unable to find a case in which a court found a First Amendment violation "based on law enforcement agents pushing away a microphone or temporarily seeking to obstruct recording by placing a hand in front of a camera."

Similarly, in Reno v. Nielson, No. 19-00418 ACK-WRP, 2020 WL 2309250 (D. Haw. May 8, 2020), the plaintiff alleged that a police officer had violated his First Amendment rights by hindering his ability to record an interaction with that police officer. Specifically, the plaintiff alleged that, once the police officer realized the plaintiff was recording the interaction, the officer "stood too close to [the plaintiff], thereby obstructing the view of the camera." The court noted that the plaintiff "was not prevented from filming, but only had some portion of the camera's view blocked by [the police officer's] body." Ultimately, the court concluded that "standing uncomfortably close … all the while permitting Plaintiff to continue filming, … would not chill a person of ordinary firmness from filming police activity in the future."

The court noted that plaintiff had also alleged that, "after shining his flashlight at Mr. Irizarry's camera, Officer Yehia 'drove right at [Mr. Irizarry] and Mr. Brandt, and sped away,' and 'blasted his air horn at Mr. Irizarry and Mr. Brandt.'" But the court concluded that "[i]t does not appear that Mr. Irizarry bases his First Amendment claim on this conduct."

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  1. What is the difference between qualified immunity and restriction of the Right to a Free Press?

    1. What is the difference between QI and lawlessness?

      1. None in terms of deterrence of misconduct or injury to the plaintiff or tosociety. All immunities should end. They justify violence, which is supposed to be replaced by liability. That legal advance makes life livable. Otherwise, we are spending all our time on physical survival.

      2. Well, there are plenty of situations where it would seem appropriate to immunize a government employee from legal consequences for actions that are part of their normal job roles.

        The problem is that QI is too broad i.e. it immunizes things that are not part of their normal job roles, and the way it’s written provides a catch-22-like cul-de-sac in that there needs to be precedent for an identical set of circumstances in order to go to trial, but no new cases can be decided since anything novel is proscribed under QI.

        1. A professional standard of practice, as attested to by experts, should replace qualified immunity. Then, the police can police itself.

          1. They already have that in most Police Departments…. they do not police themselves… no-one polices themselves really.

            They have power and going to use it no matter what.

            The only way to stop them is getting rid of Qualified Immunity and prosecute them so much the Unions give in, from paying so much in legal fees they go broke, an police their members.

      3. The reason for QI is that without it, every time the Supreme Court found a new constitutional right, every police officer who ever arrested someone for violating it would become subject to a civil rights suit. So for example the day the Suoteme Court found sodomy laws unconstitutional, every police officer who ever enforced one could be dubject to suit.

        QI introduces the idea that police officers can only be held responsibke for the state of the law as it existed at the time of the underlying events, and not as it subsequently developed. This is a perfectly reasonable idea. Police officers couldn’t do their jobs if they had to worry that a future Supreme Court might someday reverse the current law and make them liable for violating the new law.

        The problem is the extent to which this perfectly reasonable idea has been taken and the absence of limits and countervailing considerations. QI now applies not just when the Supreme Court reverses itself, not just when it extends a new law in a non-obvious way, but even when it does something obvious. QI is often interpreted to apply unless there is a specific precedent finding the exact behavior unlawful under pretty mych identitical circumstances.

        1. “Well, we do acknowledge that there is precedent establishing that putting rat poison in the prisoners food is a violation of their rights, but that case involved *powdered* rat poison and our clients used *liquid* rat poison. So there is no precedent established and they get qualified immunity. How were my clients ever to know that liquid rat poison would be a problem?”

          1. Splitting those hairs is common in QI cases.

            Only way to not have abuse is to have noting to abuse.

  2. Leaving aside 1A precedent, of which I know nothing, I do find it hard to see how “free access to things you might want to speak about, so you can speak about them” falls within the concept of “freedom of speech.”

    It might be a good idea, but it’s a completely different idea. It’s true of course that if you are baulked from viewing something, what you can say in the capacity of eye witness, is reduced. But clothes do much the same thing and we’re not suggesting that police officers should be required to patrol in the nude, are we ? At least I sincerely hope not.

    Now whether shining bright lights in people’s faces so they can’t see things is, or ought to be, legal is certainly worth thinking about. But it’s nothing to do with freedom of speech.

    1. It might be a good idea, but it’s a completely different idea.

      That might be your theory, but SCOTUS has a different theory. They believe that freedom of the press includes the right to gather information, not just to disseminate it.

  3. “The First Amendment right to gather news is, as the Court has often noted, not one that inures solely to the benefit of the news media; rather, the public’s right of access to information is coextensive with that of the press.” …

    OK, perfect. Now explain how only a select subset of those ‘news gatherers’ gets special legal treatments like being libel proof. There should not be any special legal treatments, or privileges, for only the politically connected journalists. (sometimes jokingly referred to as professionals)

    1. What legal doctrine are you referring to? AFAIK, the press does not have any special protection from libel because it is the press. (There is a heightened requirement for libel against public figures. But everyone enjoys that.)

  4. It doesn’t seem to me that police officers have any obligation to facilitate people videoing them, as distinct from things like confiscating cell phones.

    It’s not clear to me this opinion clarifies the line between not actively preventing or punishing people for videoing, and having to go out of their way to make videoing easier.

    1. If you mean things like “they don’t have to pull you over in a wide open public place where you can be easily seen and videoed”, I agree, they don’t.


      1. They certainly shouldn’t be making law enforcement choices based on the likelihood of officer conduct being filmed. E.g., they shouldn’t say “I am going to pull this person over here rather than there because I don’t want to be filmed.”

      2. They shouldn’t be doing things like expanding closure areas and police lines beyond what is necessary to, e.g., protect a crime scene, to prevent filming.

      1. How about…

        “What do you mean, unlawful restraint? I’m under no obligation to facilitate anyone’s freedom!”

    2. You somehow managed to interpret…

      “intentionally turned on all of his lights and positioned himself in front of Mr. Irizarry to purposefully obstruct Mr. Irizarry’s ability to record the DUI stop”

      …as simply the absence of facilitation of the recording? Is theft simply the absence of facilitating the continued possession of property by its legal owner?

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