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  • Jim Chapman

Tenth Circuit joins six other circuits in holding that it’s ok to video the police.

Author: Jim Chapman

 

In Irizarry v. Yehia, ___ F.4th ___, 2022 WL 2659462 (10th Cir. July 11, 2022), the United States Court of Appeals for the Tenth Circuit was faced with an issue confronted by other courts of appeals across the country. Specifically, the Tenth Circuit was asked to determine whether a police officer violates a journalist’s First Amendment rights by obstructing the filming of a traffic stop. The relevant facts are as follows.

Plaintiff/Appellant Abade Irizarry is a “YouTube journalist and blogger” who regularly publishes stories about police brutality, conduct, and/or misconduct. On May 26, 2019, Irizarry and three other “YouTube journalists/bloggers” were filming a DUI traffic stop with their cell phones and cameras for later broadcast, live-streaming, premiers, and archiving for their respective social medial channels.

Officers on the scene contacted Defendant/Appellant Officer A. Yehia to report that four males were filming the traffic stop. Officer Yehia drove to the scene in a marked police cruiser with his car’s lights turned on. Upon arrival, Officer Yehia exited his vehicle and intentionally positioned himself directly in front of Irizarry to make sure that he intentionally obstructed the camera view of the DUI roadside sobriety test. Accordingly, Irizarry and another journalist voiced their disapproval of the intentional obstruction and began to loudly criticize Officer Yehia. In response, Officer Yehia shined an extremely bright flashlight in Irizarry’s and the other journalist’s cameras, thereby saturating the cameras’ sensors.


Thereafter, Officer Yehia continued harassing Irizarry and the other journalist until another officer told Officer Yehia to stop. Officer Yehia then got back into his cruiser, drove towards Irizarry, and sped away. Officer Yehia proceeded to make a U-turn, “gunned” his cruiser directly at the other journalist, swerved around the other journalist, stopped, and repeatedly began to blast his air horn at Irizarry and the other journalist. Eventually, Officer Yehia was instructed to leave the scene due to his “disruptive and uncontrolled behavior.”


Subsequently, Irizarry (proceeding pro se) sued Officer Yehia under 42 U.S.C. § 1983, claiming that Officer Yehia had violated his First Amendment rights. Specifically, Irizarry alleged: (1) that Officer Yehia’s actions amounted to a blatant prior restraint of his First Amendment rights and (2) that Officer Yehia deprived him of his First Amendment rights to freedom of the press. Irizarry’s Complaint also alleged that Officer Yehia sought to punish him for exercising his rights. Thereafter, Officer Yehia moved to dismiss Irizarry’s Complaint against him pursuant to Federal Rule of Civil Procedure 12(b)(6), asserting a qualified immunity defense.


After Officer Yehia’s motion was ripe for ruling, the United States District Court for the District of Colorado granted the motion. In granting Officer Yehia’s motion to dismiss, the District Court concluded that Irizarry’s Complaint alleged a First Amendment Constitutional violation based on prior restraint and retaliation. The District Court noted that, although the Tenth Circuit had not previously recognized a First Amendment right to record police officers performing their official duties in public, the District Court, relying on out-of-circuit decisions, held that the First Amendment guarantees such a right, subject to reasonable time, place, and manner restrictions.


Nevertheless, the District Court held that Officer Yehia was immune from this suit based upon the doctrine of qualified immunity because Irizarry had not shown a violation of clearly established law. Specifically, the District Court found that Irizarry had “failed to direct the court to a case which demonstrates that Officer Yehia was on notice that . . . standing in front of and shining a flashlight into [Mr. Irizarry’s] camera . . . violated Mr. Irizarry’s First Amendment rights.” As a result, the District Court dismissed Irizarry’s suit against Officer Yehia with prejudice. Irizarry timely appealed to the Tenth Circuit.


On appeal, the Tenth Circuit held that, because Irizarry’s Complaint alleged a First Amendment retaliation claim under clearly established law, Officer Yehia was not immune from this suit based upon the doctrine of qualified immunity. Accordingly, the Tenth Circuit reversed the District Court’s dismissal of Irizarry’s suit.


In reaching this conclusion, the Tenth Circuit explained that, in order to state a First Amendment retaliation claim, a plaintiff must allege facts showing: (1) that he was engaged in Constitutionally protected activity; (2) that the defendant’s actions caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the defendant’s adverse action was substantially motivated as a response to the plaintiff’s exercise of constitutionally protected conduct.


In this case, the Tenth Circuit found that Irizarry’s Complaint contained each of these essential elements. First, as to the Constitutionally protected activity, the Tenth Circuit acknowledged that it had not (as of yet) recognized a First Amendment right to film the police performing their duties in public. However, the Tenth Circuit recognized that such a right exists and that the right was clearly established when the incident occurred that formed the basis for Irizarry’s Complaint against Officer Yehia. Because Irizarry had alleged facts showing that he was exercising his First Amendment right to film the police, the Tenth Circuit found that Irizarry had met the first element of his retaliation claim under clearly established law.


Second, the Tenth Circuit held that Irizarry’s allegations also showed that Officer Yehia’s actions against him would chill a person of ordinary firmness from continuing to engage in protected filming activity. Because these actions obviously infringed protected activity and equaled or exceeded those in comparable Tenth Circuit and out-of-circuit cases, the Tenth Circuit held that Irizarry had met the second element of his retaliation claim under clearly established law.


Third, the Tenth Circuit found that the Complaint had alleged that Irizarry’s protected filming activity motivated Officer Yehia’s adverse actions, thereby meeting the third element of the retaliation claim under clearly established law. As a result, the Tenth Circuit held that, as to all three elements of First Amendment retaliation, (1) the Complaint alleged a Constitutional violation, and (2) Irizarry had shown that the violation is one of clearly established law.


Accordingly, the Tenth Circuit reversed the District Court’s dismissal of this case. In reaching this conclusion, the Tenth Circuit joined the First, Third, Fifth, Seventh, Ninth, and Eleventh Circuits in holding that citizens and journalists possess the right under the First Amendment to film police officers performing their job duties in while in public.


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