First Amendment Protects The Right To Film Cops, Federal Court Reaffirms

Filming police officers at work is a right guaranteed by the First Amendment, the Tenth Circuit U.S. Court of Appeals declared in a ruling on July 11. Not only is the decision a win for free speech, it’s also a rare victory for government accountability, with the court rejecting legal immunity for an officer accused of retaliating against a YouTube journalist.

The “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,” Judge Scott Matheson wrote for a unanimous court.

The case dates back to May 26, 2019, when Abade Irizarry and three other men were filming a DUI traffic stop in Lakewood, Colorado. Police on the scene contacted Officer Ahmed Yehia and told him about the filming, who then promptly drove over. When he arrived, Yehia stood in front of Irizarry to block his view, then shined his flashlight into the camera lenses, saturating the sensors.

Because of his “disruptive and uncontrolled behavior,” Yehia was told to leave by his fellow officers. So after spending a little over a minute at the scene, Yehia climbed back in his cruiser, drove right at Irizarry and another man filming, before swerving and blasting his air horn.

Irizarry sued, asserting that Yehia had retaliated against him for exercising his First Amendment rights. In response, the officer argued he was entitled to “qualified immunity,” which protects police officers and other government employees from being sued, unless they violated a “clearly established” right. Last summer, a federal district court sided with Yehia and tossed the case.

But on appeal, the Tenth Circuit reversed and reinstated Irizarry’s lawsuit. By obstructing Irizarry’s camera, Yehia made it “difficult if not impossible to continue recording a potentially critical moment of the police activity,” noted Judge Matheson. “As of May 2019, a reasonable officer would have known that physically interfering with and intimidating an individual who was filming a DUI traffic stop can chill First Amendment activity,” he added.

The exact date of the filming was critical for the Tenth Circuit. Just last year, a different panel of Tenth Circuit judges ruled against a bystander who filmed Denver police officers punching a driver and tackling a pregnant woman during a traffic stop in August 2014. Those officers, the court ruled in Frasier v. Evans, were entitled to qualified immunity because at the time, the right to film police wasn’t “clearly established” in the Tenth Circuit. It was, however, already the law of the circuit in the First, Seventh, Ninth, and Eleventh Circuits.

But between August 2014 and May 2019, the Third and Fifth Circuits also handed down decisions “concluding there is a First Amendment right to film the police performing their duties in public.” For the Tenth Circuit, those additional rulings marked a legal tipping point. “The weight of authority from other circuits,” Judge Matheson noted, “may clearly establish the law when at least six other circuits have recognized the right at issue.”

The decision by the Tenth Circuit—which covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming—marks the seventh federal appellate court ruling of its kind. Thanks to those rulings, the right to film police is now expressly recognized under the First Amendment in at least 32 states.

“Today’s decision also adds to the consensus of authority on this important issue, bringing us a step closer to the day when this right is recognized and protected everywhere in the United States,” Irizarry’s lawyer, Andrew Tutt, told the Associated Press.

Hat tip to the Short Circuit podcast from the Institute for Justice.