DENVER, Colo. — Defying clearly established First Amendment jurisprudence that protects the right to record police in public without fear of retaliation, a federal appeals court has given police the green light to intimidate and threaten individuals who record police brutality and misconduct.
In dismissing a lawsuit by a man who was detained and questioned by police and threatened with arrest after recording police violently punching and head-slamming a suspect, a panel of the Tenth Circuit Court of Appeals held in Frasier v. Evans that police are protected by qualified immunity. The Rutherford Institute had filed a friend-of-the-court brief arguing that individuals have a First Amendment right to collect information about government activities, which includes the right to record police carrying out their duties in public.
Affiliate attorney Chris Moriarty assisted The Rutherford Institute in presenting its arguments.
“Police body cameras will never serve as an effective check on police misconduct as long the cameras can be turned on and off at will and the footage remains inaccessible to the public. However, technology makes it possible for Americans to record their own interactions with police and they have every right to do so without fear of intimidation or arrest,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Mobile devices have proven to be increasingly powerful reminders to police that they are not all powerful. The ability to record police interactions in public provides for greater accountability when it comes to police interactions with the citizenry and should be preserved as a necessary right of the people.”
In August of 2014, Levi Frasier saw two plainclothes Denver police officers in the process of arresting a man suspected of drug dealing. Frasier moved about 15 feet away and began recording the incident with a tablet. The recording showed the police pinning the suspect’s head to the pavement and punching him in the face numerous times, causing his head to repeatedly and violently hit the pavement. One of the police saw Frasier and called out “Camera!” Frasier continued to record the incident as the suspect’s girlfriend approached the police, only to be grabbed by the leg and pulled to the ground by one of the officers. Frasier then stopped recording and took the tablet to his truck, which was parked nearby. One of the police followed and ordered Frasier to come back to the police car with the video and his identification. Although Frasier showed the police his license, he denied having any recording of the incident, fearing that the police would make it “disappear.” One officer then told Frasier, “Well, we could do this the easy way, or we could do this the hard way,” gesturing toward the back seat of the squad car, which Frasier interpreted as a threat to take him to jail if he did not produce the video. The police surrounded Frasier and repeatedly asked for the video, holding and questioning him for about 30 minutes. Frasier eventually produced the tablet and the police searched through its digital files, but did not find the video. The video was later released to the media, which resulted in an internal investigation of the incident by the Denver Police Department. Frasier then brought a lawsuit asserting that police retaliated against him for exercising his First Amendment right to record the actions of the officers. After the trial court upheld Frasier’s claim, the police filed an appeal seeking dismissal of the lawsuit, arguing that the public’s right to record police was not clearly established.
The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.
Article posted with permission from John Whitehead
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