U.S. government lawyers on Wednesday asked the appeals court overseeing four western and two midwestern states to recognize that the First Amendment guarantee of free speech gives people the right to film police as they do their work in public — a decision that would allow officers to be sued if they interfere with bystanders trying to record them.
Six of the nation's 12 appeals courts have recognized that right, but the 10th Circuit Court of Appeals has not — and justices heard arguments in the case of a YouTube journalist and blogger who claimed that a suburban Denver officer blocked him from recording a 2019 traffic stop.
Natasha Babazadeh, an attorney for the Justice Department's Civil Rights Division, urged a three-judge panel from the court to rule that filming police is a constitutional right and said there has been an increase in the number of lawsuits filed against police by people saying they could not record them in public. The appeals court has jurisdiction over Oklahoma, Kansas, Colorado, Wyoming, New Mexico and Utah, and the parts of Yellowstone National Park that lie in Idaho and Montana.
The First Amendment issue intersects with the controversial legal doctrine calledwhich shields police officers from misconduct lawsuits unless their actions violate clearly established laws. If the appeals court decides people have a right to record police, police departments and officers who work in the court's region would be put on notice that they could be sued for violating that right.
In the Colorado lawsuit, Abade Irizarry said he was filming a police traffic stop in the city of Lakewood when he claimed Officer Ahmed Yehia stood in front of the camera to block Irizarry from recording. The officer allegedly shined a flashlight into Irizarry's camera and the camera of another blogger. Then Yehia left the two, got into his cruiser and sped the cruiser toward the two bloggers, the lawsuit said. The cruiser swerved before reaching the bloggers and they were not hit, according to the lawsuit.
The case was heard in federal court in Denver, where a magistrate judge dismissed it last year — agreeing with Yehia's lawyers, who contended the right to record police was not clearly established by the time of the incident in 2019.
Irizarry appealed and U.S. government lawyers joined the case to support the public's right to record police.
Alex Dorotik, the lawyer for Yehia and the city of Lakewood, said in court documents that the appeals court panel should uphold the lower court ruling.
Pointing out that Yehia allegedly drove towards Irizarry, appeals court Judge Carolyn McHugh said officers can be held liable for actions which are so egregious that all officers should should know that they violate people's rights.
Dorotik told the appeals court panel that the motivation for why Yehia drove toward Irizarry would have to be considered but later acknowledged that it would be fair to infer it was motivated by Irizarry's efforts to film the traffic stop.
The Justice Department lawyers did not take a position on whether Yehia should be granted qualified immunity.
But they said the appeals court can rule on the constitutional question of whether people have the right to record police regardless of whether the lawsuit against Yehia is reinstated. Legal documents filed by the Justice Department lawyers stressed the importance of eyewitness video in its investigations of police departments and for the investigative hunt for suspects who attacked police during the Jan. 6 insurrection at the U.S. Capitol.
Alan Chen, a University of Denver law professor and one of the First Amendment experts who have also urged the appeals court to rule on the right of people to record police, said courts tend to address cases narrowly instead of weighing in on constitutional issues.
But the video of the killing of George Floyd brought national attention to the importance of people having the right to record police as they work, he said.
"The more uncertainty there is, the more people might be afraid to pull out their phones and record the police," Chen said.
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