The Volokh Conspiracy
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Right to Videorecord Police Clearly Established, Violated by Blocking Camera and Shining Light Into It
From today's decision in Irizarry v. Yehia, decided by Judge Scott Matheson, joined by Judges Paul Kelly and Carolyn McHugh:
Early in the morning on May 26, 2019, Abade Irizarry, a YouTube journalist and blogger, was filming a DUI traffic stop in Lakewood, Colorado. Officer Ahmed Yehia arrived on the scene and stood in front of Mr. Irizarry, obstructing his filming of the stop. When Mr. Irizarry and a fellow journalist objected, Officer Yehia shined a flashlight into Mr. Irizarry's camera and then drove his police cruiser at the two journalists.
The court held that, if the facts were as alleged, then this behavior was unconstitutional, and clearly established to be so (and thus not protected by qualified immunity):
Analyzing the three elements of a [First Amendment] retaliation claim … under the facts alleged in the complaint, we conclude as follows:
First, as to constitutionally protected activity, … a First Amendment right to film the police performing their duties in public … exists and was clearly established when the incident occurred. {[V]ideorecording is "unambiguously" speech-creation, not mere conduct. "If the creation of speech did not warrant protection under the First Amendment, the government could bypass the Constitution by simply proceeding upstream and damming the source of speech."} Because Mr. Irizarry has alleged facts showing he was exercising his First Amendment right to film the police, he has met the first element of his retaliation claim under clearly established law.
{[The right to videorecord] is subject to reasonable time, place, and manner restrictions. But in this case, there is no "time, place, and manner" restriction issue because a "peaceful recording" of a traffic stop in "a public space that does not interfere with the police officers' performance of their duties is not reasonably subject to limitation."
Based on the allegations in the complaint, Mr. Irizarry did not interfere with the traffic stop or hinder law enforcement. Although Mr. Irizarry and Mr. Brandt "voiced their disapproval of [Officer Yehia's] intentional obstruction of content gathering … [and] loudly criticize[d] [Officer Yehia]," their protests did not impede officers from performing their duties. Further, the traffic stop occurred on a public street, a traditional public forum where "the rights of the state to limit the exercise of First Amendment activity are 'sharply circumscribed.'"}
Second, Mr. Irizarry's allegations also show that Officer Yehia's actions against him would chill a person of ordinary firmness from continuing to engage in protected filming activity. {Mr. Irizarry suffered an injury when Officer Yehia stood in front of his camera and shined a flashlight into it, making it difficult if not impossible to continue recording a potentially critical moment of the police activity. This injury alone would chill a person of ordinary firmness from continuing to film the traffic stop.
But there was more…. Officer Yehia … directed violence towards Mr. Irizarry by driving his police cruiser "right at" him and by "gunn[ing]" it at his nearby colleague, Mr. Brandt. These actions would be more than sufficient to chill a person of ordinary firmness from continuing to film the traffic stop.}
Because these actions obviously infringed protected activity and equaled or exceeded those in comparable Tenth Circuit and out-of-circuit cases, Mr. Irizarry has met the second element of his retaliation claim under clearly established law.
Third, the complaint alleged that Mr. Irizarry's protected filming activity motivated Officer Yehia's adverse actions, meeting the third element of the retaliation claim under clearly established law.
Thus, as to all three elements of First Amendment retaliation, (1) the complaint alleged a constitutional violation, and (2) Mr. Irizarry has shown the violation is one of clearly established law….
Although neither the Supreme Court nor the Tenth Circuit has recognized a First Amendment right to record the police performing their duties in public, we hold that the right was clearly established here based on the persuasive authority from six other circuits, which places the constitutional question "beyond debate." Our opinion in Western Watersheds v. Michael (10th Cir. 2017) also supports this conclusion….
"In the absence of binding precedent specifically adjudicating the right at issue, the right may still be clearly established based on a 'consensus of cases of persuasive authority' from other jurisdictions." And the weight of authority from other circuits may clearly establish the law when at least six other circuits have recognized the right at issue…. Moreover, in Western Watersheds, we indicated, without reservation, that filming the police performing their duties in public is protected under the First Amendment. ("An individual who photographs animals or takes notes about habitat conditions is creating speech in the same manner as an individual who records a police encounter."). Although this statement, on its own, may be insufficient to satisfy prong two of qualified immunity, it supports the conclusion that a reasonable officer would have known there was a First Amendment right to film the police performing their duties in public.
Finally, Mr. Irizarry's right to film the police falls squarely within the First Amendment's core purposes to protect free and robust discussion of public affairs, hold government officials accountable, and check abuse of power. We have no doubt that Mr. Irizarry had a clearly established First Amendment right to film the traffic stop in May 2019….
