Petition for Writ of Certiorari — Levi Frasier, Petitioner v. Christopher L. Evans, et al.

No. 21-____

IN THE

LEVI FRASIER,

Petitioner,

v.

CHRISTOPHER EVANS ET AL.,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

Elizabeth Wang

LOEVY & LOEVY

2060 Broadway, Suite 460

Boulder, CO 80302

Kendall Turner

O’MELVENY & MYERS LLP

1625 Eye Street, NW

Washington, DC 20006

Yaira Dubin

O’MELVENY & MYERS LLP

7 Times Square

New York, NY 10036

Jeffrey L. Fisher

Counsel of Record

Edward C. DuMont

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

(650) 724-7081

jlfisher@stanford.edu

QUESTIONS PRESENTED

1. Whether training or law enforcement policies

can be relevant to whether a police officer is entitled to

qualified immunity.

2. Whether it has been “clearly established” since

at least 2014 that the First Amendment protects the

right of individuals to record police officers carrying

out their duties in public.

ii

PARTIES TO THE PROCEEDING

The petitioner, plaintiff below, is Levi Frasier.

Respondents, defendants below, are Christopher

L. Evans, Charles C. Jones, John H. Bauer, Russell

Bothwell, and John Robledo.

The City of Denver was also a defendant in the

district court. But the court dismissed the claim

against the City, and petitioner did not appeal that

holding.

iii

RELATED PROCEEDINGS

Frasier v. Evans, D.C. No. 1:15-CV-01759-REBKLM (D. Colo. 2018)

Frasier v. Evans, No. 19-1015 (10th Cir. 2021)

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ i

PARTIES TO THE PROCEEDING ............................ ii

RELATED PROCEEDINGS ...................................... iii

TABLE OF AUTHORITIES ........................................vi

PETITION FOR A WRIT OF CERTIORARI ..............1

OPINIONS BELOW .....................................................1

JURISDICTION ...........................................................1

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS ................................1

INTRODUCTION .........................................................2

STATEMENT OF THE CASE .....................................4

A. Factual background .........................................4

B. Procedural history ...........................................8

REASONS FOR GRANTING THE WRIT .................11

I.

The Court should resolve whether officer

training or law enforcement policies can be

relevant to the qualified immunity inquiry .......12

A. The courts of appeals are divided over

this question ..................................................12

B. The question is recurring and important .....14

C. This case is an excellent vehicle for the

Court to address the issue.............................15

D. The Tenth Circuit’s holding that officer

training and law enforcement policies

are categorically irrelevant is wrong ............16

v

II. The Court should address whether the

First Amendment clearly establishes that

individuals may record police officers

carrying out their duties in public ......................23

A. The circuits are openly split over this

issue................................................................23

B. The issue is vitally significant ......................25

C. This case is an ideal vehicle for resolving

the conflict......................................................26

D. The Tenth Circuit incorrectly held that

the First Amendment right here is not

clearly established .........................................26

CONCLUSION ...........................................................31

APPENDIX

Appendix A, Opinion of the United States

Court of Appeals for the Tenth Circuit

(March 29, 2021) ..................................................1a

Appendix B, District Court’s Order Granting

Plaintiff’s Motion to Reconsider Dismissal

of First Amendment Claim on Qualified

Immunity Grounds (November 2, 2018) ..........64a

vi

TABLE OF AUTHORITIES

Page(s)

Cases

ACLU of Illinois v. Alvarez,

679 F.3d 583 (7th Cir. 2012) .................... 11, 23, 27

Anderson v. Creighton,

483 U.S. 635 (1987) ........................................ 18, 22

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) .............................................. 27

Baxter v. Bracey,

140 S. Ct. 1862 (2020) ...................................... 2, 23

Booker v. South Carolina Dep’t of Corrections,

855 F.3d 533 (4th Cir. 2017) ................................ 13

Branzburg v. Hayes,

408 U.S. 665 (1972) .............................................. 29

Brosseau v. Haugen,

543 U.S. 194 (2004) (per curiam) .................. 22, 26

Brown v. Ent. Merchs. Ass’n,

564 U.S. 786 (2011) .............................................. 31

Butz v. Economou,

438 U.S. 478 (1978) .............................................. 21

Champion v. Outlook Nashville, Inc.,

380 F.3d 893 (6th Cir. 2004) ................................ 13

Channel 10, Inc. v. Gunnarson,

337 F. Supp. 634 (D. Minn. 1972) ....................... 27

Chestnut v. Wallace,

2018 WL 5831260 (E.D. Mo. 2018)........................ 5

City of Houston v. Hill,

482 U.S. 451 (1987) .................................. 29, 30, 31

Drummond v. City of Anaheim,

343 F.3d 1052 (9th Cir. 2003) .............................. 12

vii

Faragher v. City of Boca Raton,

524 U.S. 775 (1998) .............................................. 19

Fields v. City of Philadelphia,

862 F.3d 353 (3d Cir. 2017) ......................... passim

First Nat’l Bank v. Bellotti,

435 U.S. 765 (1978) ........................................ 28, 29

Fordyce v. City of Seattle,

55 F.3d 436 (9th Cir. 1995) ............................ 11, 27

Garcia v. Montgomery County,

145 F. Supp. 3d 492 (D. Md. 2015) ...................... 27

Gentile v. State Bar,

501 U.S. 1030 (1991) ............................................ 29

Gericke v. Begin,

753 F.3d 1 (1st Cir. 2014) .................................... 24

Glik v. Cunniffe,

655 F.3d 78 (1st Cir. 2011) .......................... passim

Harlow v. Fitzgerald,

457 U.S. 800 (1982) .............................. 3, 14, 21, 22

Higginbotham v. City of New York,

105 F. Supp. 3d 369 (S.D.N.Y. 2015)................... 27

Hope v. Pelzer,

536 U.S. 730 (2002) ...................................... passim

Houchins v. KQED, Inc.,

438 U.S. 1 (1978) .................................................. 29

Illinois v. Krull,

480 U.S. 340 (1987) .............................................. 19

Jackson v. City of Cleveland,

925 F.3d 793 (6th Cir. 2019) .................................. 2

Kelly v. Borough of Carlisle,

622 F.3d 248 (3d Cir. 2010) ................................. 24

viii

Kisela v. Hughes,

138 S. Ct. 1148 (2018) .......................... 2, 21, 22, 30

Lambert v. Polk County,

723 F. Supp. 128 (S.D. Iowa 1989) ...................... 27

Lewis v. City of New Orleans,

415 U.S. 130 (1974) ........................................ 30, 31

Malley v. Briggs,

475 U.S. 335 (1986) .................................... 9, 21, 22

Marbury v. Madison,

5 U.S. (1 Cranch.) 137 (1803) .............................. 20

Maye v. Klee,

915 F.3d 1076 (6th Cir. 2019) .............................. 13

McCullough v. Maryland,

17 U.S. (4 Wheat.) 316 (1819).............................. 20

Mills v. Alabama,

384 U.S. 214 (1966) ........................................ 29, 31

Monell v. Dep’t of Social Servs.,

436 U.S. 658 (1978) .............................................. 19

Mullenix v. Luna,

577 U.S. 7 (2015) (per curiam) ............................ 21

Okin v. Village of Cornwall-on-Hudson Police Dep’t,

577 F.3d 415 (2d Cir. 2009) ................................. 13

Raiche v. Pietroski,

623 F.3d 30 (1st Cir. 2010) .................................. 12

Saucier v. Katz,

533 U.S. 194 (2001) .............................................. 22

Smith v. City of Cumming,

212 F.3d 1332 (11th Cir. 2000) ...................... 11, 27

Sorrell v. IMS Health Inc.,

564 U.S. 552 (2011) .............................................. 28

ix

Stanton v. Sims,

571 U.S. 3 (2013) (per curiam) ...................... 21, 28

Taylor v. Riojas,

141 S. Ct. 52 (2020) (per curiam) ........................ 29

Treats v. Morgan,

308 F.3d 868 (8th Cir. 2002) ................................ 13

Tucker v. City of Shreveport,

998 F.3d 165 (5th Cir. 2021) .................................. 2

Turner v. Lieutenant Driver,

848 F.3d 678 (5th Cir. 2017) .............. 10, 24, 27, 30

United States v. Ross,

32 F.3d 1411 (9th Cir. 1994) ................................ 19

Vazquez v. City of Kern,

949 F.3d 1153 (9th Cir. 2020) ........................ 12, 13

White v. Pauly,

137 S. Ct. 548 (2017) (per curiam) ...................... 21

Wilson v. Layne,

526 U.S. 603 (1999) ............................ 17, 18, 27, 28

Zadeh v. Robinson,

928 F.3d 457 (5th Cir. 2019) ............................ 2, 20

Constitutional Provisions

U.S. Const., amend. I ......................................... passim

U.S. Const., amend. IV ..................................... 8, 17, 19

U.S. Const., amend. VIII ...................................... 16, 17

U.S. Const., amend. XIV ............................................ 13

Statutes

28 U.S.C. § 1254(1) ....................................................... 1

42 U.S.C. § 1983 ................................................. passim

x

Other Authorities

Baude, William, Is Qualified Immunity

Unlawful?, 106 Cal. L. Rev. 45 (2018) .................. 2

Br. for United States as Amicus Curiae, No.

16-1650, Fields v. City of Philadelphia, 862

F.3d 353 (3d Cir. 2017) ........................................ 16

Consent Decree, United States v. City of New

Orleans, 35 F. Supp. 3d 788 (E.D. La. 2013) ...... 16

Denver Police Dep’t, Operations Manual (rev.

March 2016)............................................................ 8

Famous Trials: Original Statement Issued by

the Minneapolis Police Department on the

Death of George Floyd: “A Medical

Incident” (May 25, 2020)...................................... 25

Koeberi, Chris, Fox31 News Denver, Denver

Police Accused of Using Excessive Force

(Nov. 25, 2014) ....................................................... 8

Montgomery County Police, Citizen

Videotaping Interactions (January 2013) ............. 5

Schwartz, Joanna C., The Case Against

Qualified Immunity, 93 Notre Dame L.

Rev. 1797 (2018) ..................................................... 2

Settlement Agreement, United States v. Town

of E. Haven, No. 8:12-cv-03592 (D. Conn.

Dec. 20, 2012) ....................................................... 16

Statement of Interest of the United States,

Garcia v. Montgomery Cty., No. 8:12-cv03592 (D. Md. March 4, 2013) ............................. 16

U.S. Dep’t of Justice, Civil Rights Division, Re:

Christopher Sharp v. Baltimore City Police

Dep’t (May 14, 2012) ........................................ 4, 16

PETITION FOR A WRIT OF CERTIORARI

Petitioner Levi Frasier respectfully seeks a writ of

certiorari in this case to the United States Court of

Appeals for the Tenth Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Tenth Circuit (Pet. App. 1a-63a) is published at

992 F.3d 1003. The relevant order of the district court

(Pet. App. 64a-72a) is unpublished but available at

2018 WL 6102828.

JURISDICTION

The court of appeals entered its judgment on

March 29, 2021. Pet. App. 1a. On March 19, 2020, this

Court entered a standing order that extends the time

to file a petition for a writ of certiorari in this case to

August 26, 2021. This Court has jurisdiction under 28

U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

The First Amendment provides in relevant part:

“Congress shall make no law . . . abridging the

freedom of speech, or of the press.”

42 U.S.C. § 1983 provides in relevant part: “Every

person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory

or the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other

person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in equity,

or other proper proceeding for redress.”

2

INTRODUCTION

In recent years, some Justices have called for a

reexamination of the qualified-immunity doctrine. See

Baxter v. Bracey, 140 S. Ct. 1862, 1865 (2020)

(Thomas, J., dissenting from the denial of certiorari)

(expressing “strong doubts” about doctrine); Kisela v.

Hughes, 138 S. Ct. 1148, 1162 (2018) (Sotomayor, J.,

dissenting) (doctrine “sends an alarming signal to law

enforcement officers and the public”). Several lower

court judges have echoed these calls, expressing

“unease” with the doctrine and urging “recalibration of

contemporary immunity jurisprudence.” Zadeh v.

Robinson, 928 F.3d 457, 479-80 (5th Cir. 2019)

(Willett, J., concurring); see also, e.g., Jackson v. City

of Cleveland, 925 F.3d 793, 822 (6th Cir. 2019)

(“Qualified immunity has outgrown its original

justifications.”); Tucker v. City of Shreveport, 998 F.3d

165, 186 (5th Cir. 2021) (Higginson, C.J., dissenting)

(“highlight[ing] the importance of recent attention

given to the issue of qualified immunity”). Prominent

academics also have explained how qualified

immunity has become increasingly unmoored from

any statutory text or historical practice—and, indeed,

is threatening to undermine the rule of law itself. See,

e.g., William Baude, Is Qualified Immunity

Unlawful?, 106 Cal. L. Rev. 45 (2018); Joanna C.

Schwartz, The Case Against Qualified Immunity, 93

Notre Dame L. Rev. 1797 (2018).

Regardless of whether this Court might wish to

reconsider qualified immunity as a whole, this case

presents a timely opportunity to resolve two divisions

of authority and to curb an unjustified distortion of the

doctrine. At the time of the remarkable incident in this

case, the respondent police officers’ training and

3

departmental policies expressly advised them that the

First Amendment protects the right of citizens to

record officers performing their duties in public. All

four federal court of appeals decisions on the issue said

the same thing, consistent with this Court’s precedent.

Yet the Tenth Circuit granted the respondents

immunity for doing exactly what they had been told

was unconstitutional. The Tenth Circuit reasoned (1)

that the training and law enforcement policies are

“irrelevant” to the qualified-immunity analysis and (2)

that existing legal precedent was insufficient on its

own to make the right here clearly established. Pet.

App. 29a; see also id. 19a-38a.

Both of these holdings conflict with the law in

other circuits. Several courts of appeals have held that

training and policies are relevant in the qualifiedimmunity analysis. And the First Circuit concluded a

decade ago that case law clearly established that the

First Amendment protects the “right to videotape

police carrying out their duties in public.” Glik v.

Cunniffe, 655 F.3d 78, 82-85 (1st Cir. 2011).

Furthermore, as the district court observed, it

“makes no sense” under the circumstances here to

confer qualified immunity. Pet. App. 66a. The

qualified-immunity doctrine was created to prevent

officers from being held unexpectedly liable based on

constitutional rules they “neither knew nor should

have known” existed. Harlow v. Fitzgerald, 457 U.S.

800, 819 (1982). The officers here all testified that they

knew they were violating petitioner’s rights. Their

training, department policies, and precedent all

underscored that reality. Whatever the outer

boundaries of qualified immunity may be, this case is

far beyond them. Certiorari should be granted.

4

STATEMENT OF THE CASE

A. Factual background

1. Since as early as 2007, the City of Denver has

trained its police officers “that the public has the right

to record them performing their official duties in

public spaces.” Pet. App. 13a. The training bulletin

issued that year also “had the force and effect of official

policy.” A_1033.1 Starting in 2010, the Denver Police

Department also provided a mandatory course for

supervisors entitled Perspectives on Policing, which

reiterated that citizens have a First Amendment right

to record officers. A_1031; see also A_370. An

additional course that commenced in 2012 included a

slide to the same effect: “[C]itizens have a First

Amendment right to videotape the actions of police

officers in public places.” A_391, 1031.

These directives and recognitions are of a piece

with others from around the country. In 2012, the U.S.

Department of Justice issued guidance on the issue,

recognizing “individuals’ First Amendment right to

observe and record police officers engaged in the public

discharge of their duties.” U.S. Dep’t of Justice, Civil

Rights Div., Re: Christopher Sharp v. Baltimore City

Police Dep’t at 1 (May 14, 2012). Other major police

departments have likewise long had policies “advising

officers not to interfere with a private citizen’s

recording of police activity because it [i]s protected by

the First Amendment.” Fields v. City of Philadelphia,

862 F.3d 353, 356 (3d Cir. 2017) (Philadelphia Police

Department memorandum issued in 2011); see also

1

Citations to “A_” are to the Appellants’ Appendix in the

Tenth Circuit. “SA_” refers to the Appellant’s Supplemental

Appendix.

5

Chestnut v. Wallace, 2018 WL 5831260, at *3 (E.D.

Mo. 2018) (St. Louis Metropolitan Police Department

special order issued in 2009 recognizing this

“unambiguous First Amendment right”); Montgomery

County Police, Citizen Videotaping Interactions 1-2

(January 2013) (same).

2. On August 14, 2014, respondent John Bauer, a

detective in the Denver Police Department, saw what

he thought was a drug transaction involving a silver

car. He radioed for backup and followed the car to a

parking lot. Exiting his vehicle, Detective Bauer then

announced “police.” Pet. App. 8a. When the driver of

the car, David Flores, did not immediately show his

hands, Bauer “pulled him from the car and pinned him

against it.” Id.

As respondent Sergeant Russell Bothwell arrived

to assist, Flores “removed a sock from his waistband

and stuffed it in his mouth.” Pet. App. 8a. There was

no indication that Flores was armed or dangerous. But

the officers assumed the sock contained drugs, so they

ordered him to “spit it out.” Id. The officers then “fell

to the ground” with Flores as they tried to remove the

sock. Id.

Petitioner Levi Frasier was observing this tussle

from nearby in the parking lot. Detective Bauer

initially “asked him for help” getting the sock out of

Flores’s mouth. Pet. App. 8a. Petitioner briefly

assented. But as other officers arrived, they asked

petitioner to step back. Petitioner “moved about ten

feet away and started video-recording the event using

his tablet computer.” Id. Nothing he did interfered

with the officers’ actions. SA_101, 111; A_268.

What petitioner recorded was dramatic. While

Flores refused to release the sock from his mouth, one

6

of the officers pinned his forearm on Flores’s head.

Another officer pinned Flores’s arms behind his back.

Respondent Officer Charles Jones then punched

Flores “in the face six times in rapid succession,” Pet.

App. 8a; SA_75. As petitioner later described it: “[T]he

punches were punishing, but what must have hurt

even more was the cement hitting Mr. Flores back in

the face. . . . [I]t seemed like after one strike, [Officer

Jones] could have stopped and, . . . manually pulled

out the sock.” SA_75. “There wasn’t a need for the

second or the third, for sure the fourth, fifth, or sixth.

Each one seemed to get more violent and powerful.” Id.

Flores’s girlfriend, Mayra Lazos-Guerrero, who

was seven-and-one-half-months’ pregnant, began

screaming and approached the officers. “Officer Jones

pushed her away, and then Officer Evans grabbed her

ankle and pulled her off her feet.” Pet. App. 9a. She fell

onto her stomach and face, hitting the pavement.

As petitioner recorded the violent interaction,

Sergeant Bothwell called out, “Camera!” Pet. App. 9a.

All of the officers had attended the Denver Police

Department’s trainings explaining that citizens have

a First Amendment right to record the police while

performing their duties in public. Id. 66a, 70a. And

they all were aware that this constitutional rule

“protected [Frasier’s] right to record them.” Id. 13a,

66a, 70a. Nevertheless, as petitioner stopped filming

and returned to his parked car, Officer Evans followed

him “and asked him to bring his identification and the

video of the arrest to the officer’s patrol car.” Id. 9a.

Petitioner brought his driver’s license, but not his

computer tablet, over to the patrol car. He was afraid

that if he let the officers have access to the video, they

would make it “disappear.” Id. 9a. As petitioner

7

explained, “I had just witnessed an officer that I didn’t

feel had the power to be able to strike somebody in the

face, and I was the only one with video evidence of his

wrongs.” SA_33, 78. Officer Evans continued to ask for

the video. Gesturing to the back seat of his patrol car,

he told petitioner, “Well, we could do this the easy way

or we could do this the hard way.” Pet. App. 9a. When

petitioner still did not respond, Officer Evans asked

him to fill out a witness statement form. Upon further

prodding from Officer Evans to disclose whether he

filmed the incident, petitioner wrote (falsely) in his

statement that “he took only a Snapchat photo of the

arrest.” Id. 10a. He added that he “no longer had a

copy” of the photo on his “phone” because “Snapchat

removes [footage] as soon as you send [it].” Id.

(alterations in court of appeals opinion).

Officer Evans told petitioner to go get his phone.

As petitioner returned from his car, another officer

said, “That’s not it” and indicated that his recording

device had been larger. A_1014-15. At that point, all

five of the officers encircled petitioner and demanded

the video. Believing he would be taken to jail if he

refused any longer, petitioner retrieved his tablet. Pet.

App. 11a. Officer Evans then “grabbed the tablet out

of [petitioner’s] hands” and began searching for the

video of the arrest. Petitioner objected that this was

improper without a warrant, but Officer Evans

continued to scan files on the tablet. Id. He then

announced to the other officers, “I don’t see the video

in here. I can’t find it.” Id. Another officer responded,

“As long as there’s no video, it’s okay. . . . [I]f there’s

just a photo, that’s fine, as long as there’s no video.”

Id.; SA_89, 96. The officers then gave petitioner back

his tablet and his driver’s license, and he left.

8

Mr. Flores was taken away in an ambulance,

bleeding from the back of his head. The record does not

disclose the extent of his injuries.

3. After the incident, petitioner provided a copy of

his video to the Denver Police Department and Fox31

News Denver. The media outlet aired an investigative

report on the officers’ use of force and produced several

follow-up reports.2 After the incident was publicized,

the Department changed its use-of-force policy to

prohibit officers from using “physical force solely to

stop a person from swallowing a substance or to

retrieve evidence from the person’s mouth.” A_1098

(DPD Ops. Manual § 116.06(3)(b), rev. March 2016).

B. Procedural history

1. Petitioner sued the respondent officers and the

City and County of Denver under 42 U.S.C. § 1983.

Petitioner claimed, as relevant here, that the officers

violated the First Amendment by retaliating against

him for filming them while performing their duties in

public. Petitioner also alleged that the City and

County were liable for this violation because they

failed to train the officers adequately about the

public’s First Amendment rights.3

The district court initially granted the officers’

motion to dismiss on qualified immunity grounds,

2

The initial report, as well as petitioner’s video itself, can be

found

here:

https://kdvr.com/news/problem-solvers/denverpolice-accused-of-excessive-force-illegal-search/.

3

Petitioner also advanced Fourth Amendment claims based

on the officers’ detention of him and their search of his computer

tablet. His unlawful search claim against Officer Evans remains

pending for trial; other such claims were dismissed and are not

at issue here. Pet. App. 12a, 63a.

9

holding that the right to record officers’ performance

of their official duties in public places “was not clearly

established” at the time of the incident here. Pet. App.

12a-13a. After a period of discovery, in which the City

and County “presented evidence that the Denver

Police Department had been training its officers since

February 2007 that the public has the right to record

them performing their official duties in public spaces,”

the district court granted summary judgment against

petitioner on his failure-to-train claims. Id. 13a.

In light of the latter ruling, the district court

elected to reconsider its qualified immunity order, and

it reinstated petitioner’s First Amendment claims

against the officers. The district court reasoned that it

would “make[] no sense” to allow the City and County

to avoid liability on the ground that it had a “policy in

place” that the First Amendment protects citizens’

right to record police officers, while also granting the

officers qualified immunity on the ground that the law

was not sufficiently clear to put them on notice of the

illegality of their actions. Pet. App. 66a. “Although

qualified immunity ‘leaves ample room for mistaken

judgments,’” the district court explained, “it does not

protect ‘the plainly incompetent or those who

knowingly violate the law.’” Id. 67a (quoting Malley v.

Briggs, 475 U.S. 335, 341 (1986) (emphasis added)).

The officers later moved for summary judgment,

and the district court denied that motion. The court

reasoned that the officers knew that the First

Amendment protected petitioner’s filming of their

actions and that “the record supported a finding that

they had retaliated against [petitioner]” for doing so.

Pet. App. 15a.

10

2. The officers appealed the denial of qualified

immunity on petitioner’s First Amendment claim, and

the Tenth Circuit reversed.

As an initial matter, the court of appeals held that

the district court had erred in considering the officers’

training and law enforcement policies. The Tenth

Circuit gave two reasons for that holding. First, it

reasoned that “[j]udicial decisions are the only valid

interpretive source of the content of clearly

established law.” Pet. App. 28a (emphasis added).

Second, the Tenth Circuit asserted that the qualifiedimmunity doctrine is concerned exclusively with the

objective reasonableness of an officer’s actions. It is

therefore “irrelevant,” the court of appeals concluded,

whether “the officers [in this case] subjectively knew—

based on their training or from municipal policies—

that their conduct violated Mr. Frasier’s First

Amendment rights.” Id. 29a.

Having set aside the law enforcement training

and policies indicating that the officers’ conduct here

was unconstitutional, the Tenth Circuit asked

whether judicial opinions had clearly established by

2014 that the First Amendment protects the right to

record officers performing their official duties in public

places. The Tenth Circuit expressly recognized that

there is a “circuit split” on that issue: The First Circuit

held over a decade ago that this right is clearly

established, while the Third and Fifth Circuits have

held in cases like this that the right was not clearly

established. Pet. App. 37a; see also Glik v. Cunniffe,

655 F.3d 78, 82-85 (1st Cir. 2011); Fields, 862 F.3d at

362; Turner v. Lieutenant Driver, 848 F.3d 678, 687

(5th Cir. 2017). The Tenth Circuit then sided with the

latter circuits.

11

Citing precedent from this Court, the Tenth

Circuit acknowledged that the First Amendment

protects “the creation and dissemination of

information,” particularly when individuals are

engaged in “[n]ews gathering.” Pet. App. 31a (citations

omitted). But the court of appeals believed that those

principles operate at too high a “level of generality” to

give the requisite notice to police officers that their

conduct was unlawful. Id. 33a. The Tenth Circuit also

accepted that all four federal courts of appeals to

address the underlying constitutional issue before the

events at issue here had uniformly held “that there is

a First Amendment right to record the police

performing their duties in public spaces.” Id. at 35a

(citing ACLU of Illinois v. Alvarez, 679 F.3d 583 (7th

Cir. 2012); Glik, 655 F.3d at 82-84; Smith v. City of

Cumming, 212 F.3d 1332 (11th Cir. 2000); Fordyce v.

City of Seattle, 55 F.3d 436 (9th Cir. 1995)). But the

Tenth Circuit held that the lower court consensus on

the constitutional question was not enough to clearly

establish that rule. Id. 36a.

Finally, the Tenth Circuit refused to decide

whether the First Amendment in fact guarantees a

right to record the police in public spaces. Pet. App.

30a n.4. While every court of appeals to address the

issue has held that it does, the issue is now expressly

unresolved as a matter of Tenth Circuit law. Id.

REASONS FOR GRANTING THE WRIT

The Tenth Circuit’s decision creates one circuit

split and deepens another. At a minimum, this Court

should review the Tenth Circuit’s holding that officer

training and law enforcement policies are

categorically irrelevant to whether an officer is

entitled to qualified immunity. The Tenth Circuit’s

12

rule—which applies across all Section 1983 claims—

directly contravenes this Court’s precedent and is

deeply misguided. In addition, the Tenth Circuit’s

ultimate qualified-immunity holding also warrants

review. In a decision denying qualified immunity that

the Tenth Circuit expressly rejected, the First Circuit

held a decade ago that the right “to videotape police

carrying out their duties in public” is “a basic, vital,

and well established liberty safeguarded by the First

Amendment.” Glik v. Cunniffe, 655 F.3d 78, 82-85 (1st

Cir. 2011). The right is too important for its

enforceability against individual officers under

Section 1983 to wax and wane depending on

geography.

I.

The Court should resolve whether officer

training or law enforcement policies can be

relevant to the qualified immunity inquiry.

A.

The courts of appeals are divided over this

question.

The Tenth Circuit’s decision splits with other

circuits over whether law enforcement training and

policies (reflected in manuals, internal directives, and

the like) can be relevant to whether an officer is

entitled to qualified immunity.

1. The First, Second, Sixth, and Ninth Circuits all

hold that, in addition to judicial decisions, “[t]raining

materials” and law enforcement policies “are also

relevant” in the qualified-immunity analysis. Vazquez

v. City of Kern, 949 F.3d 1153, 1164 (9th Cir. 2020);

see also Drummond v. City of Anaheim, 343 F.3d 1052,

1062 (9th Cir. 2003) (“training materials” were

“relevant” to finding law clearly established); Raiche

v. Pietroski, 623 F.3d 30, 39 (1st Cir. 2010) (denying

qualified immunity in part based on departure from

13

“officer’s training”); Okin v. Village of Cornwall-onHudson Police Dep’t, 577 F.3d 415, 436-37 (2d Cir.

2009) (officers’ defiance of “extensive professional

training” and state law provided “strong support” for

denying qualified immunity); Booker v. South

Carolina Dep’t of Corrections, 855 F.3d 533, 546 (4th

Cir. 2017) (denying qualified immunity in part based

on “internal policies”); Champion v. Outlook

Nashville, Inc., 380 F.3d 893, 904 (6th Cir. 2004)

(denying qualified immunity in part based on “the

training these Officers received”); Maye v. Klee, 915

F.3d 1076, 1087 (6th Cir. 2019) (same regarding

internal “policy”).

The Ninth Circuit’s recent decision in Vazquez is

illustrative. The plaintiff claimed that a corrections

officer violated her Fourteenth Amendment right to

bodily integrity by spying on her while she was

undressing and showering in a juvenile detention

facility. This Court has no case law directly speaking

to this legal issue. The Ninth Circuit nonetheless held

that the officer was not entitled to qualified immunity,

relying on case law in the lower courts as well as the

“the Juvenile Hall administrative policies” prohibiting

the officer’s actions “and the training [the officer]

likely attended.” Vazquez, 949 F.3d at 1165.

2. Three circuits (two of those just mentioned

above, plus one more) have similarly held that

administrative

regulations

are

“relevant

in

determining whether an inmate’s right was clearly

established.” Treats v. Morgan, 308 F.3d 868, 875 (8th

Cir. 2002); see also Okin, 577 F.3d at 433-34 (Second

Circuit: “administrative provisions” also relevant);

Booker, 855 F.3d at 546 (Fourth Circuit: regulations

are “relevant in determining whether an inmate’s

14

right was clearly established”) (citation omitted).

These decisions also conflict with the Tenth Circuit’s

holding here that “[j]udicial decisions are the only

valid interpretive source of the content of clearly

established law.” Pet. App. 28a (emphasis added).

B. The question is recurring and important.

As the array of cases in the previous section

indicates, the question whether police officers’

training and law enforcement policies are relevant to

the qualified-immunity inquiry is a frequently

recurring issue. The issue also raises a basic

methodological question regarding the doctrine. The

issue can arise in a broad sweep of Section 1983

cases—from police search-and-seizure practices, to

retaliation for engaging in free speech or expression,

to alleged cruel and unusual treatment of prisoners.

Needless to say, the qualified immunity doctrine

itself is also immensely consequential. The doctrine

not only determines whether those who suffer

constitutional injuries can be compensated; it affects

the degree to which “[t]he public interest in deter[ing]

of unlawful conduct” in the first place is served.

Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). The

qualified-immunity doctrine further influences the

public’s perception of the law itself. When our legal

system fails to deliver justice to those who suffer

mistreatment at the hands of governmental agents,

the citizenry may wonder why those agents are not

held to account. And when those agents violated their

own training and policies, the public may wonder all

the more. This Court should not allow indeterminacy

in this respect to persist.

15

C. This case is an excellent vehicle for the

Court to address the issue.

This case provides an optimal opportunity to

resolve whether training and law enforcement policies

are, as the Tenth Circuit held here, categorically

irrelevant to qualified-immunity analyses.

To begin, the Tenth Circuit directly and expressly

framed this issue in its opinion and gave it extended

treatment. Pet. App. 19a-29a. The court of appeals

also held in absolute terms that training and law

enforcement policies are always “irrelevant” to

qualified-immunity analyses. Id. 20a, 23a, 29a. In fact,

the court of appeals held that such training and

policies must be ignored “even if the officers [in this

case] subjectively knew—based on their training or

from municipal policies—that their conduct violated

Mr. Frasier’s First Amendment rights.” Id. 29a.

This case is also the best possible scenario to test

the court of appeals’ categorical rule. The training and

departmental policies that applied here did not simply

proscribe certain behavior as a matter of police “best

practices” or the like. They specifically instructed the

officers regarding the dictates of the Constitution,

explaining that the First Amendment gives people a

“right[] to record the police in the public discharge of

their official duties.” Pet. App. 13a. The record also

demonstrates unambiguously that the officers here

had attended these trainings and knew that they

violated petitioner’s rights. Id.

Nor was this local training and policy somehow

idiosyncratic; it tracked direct guidance from the

federal government. In 2012, the Department of

Justice expressly recognized “individuals’ First

Amendment right to observe and record police officers

16

engaged in the public discharge of their duties.” U.S.

Dep’t of Justice, Civil Rights Div., Re: Christopher

Sharp v. Baltimore City Police Dep’t at 2 (May 14,

2012). In the two years preceding the events here, the

Government had reiterated that position in particular

cases. See Statement of Interest of the United States,

Garcia v. Montgomery County, No. 8:12-cv-03592 (D.

Md. March 4, 2013); Consent Decree at 44-45, United

States v. City of New Orleans, 35 F. Supp. 3d 788 (E.D.

La. 2013); Settlement Agreement at 20-21, United

States v. Town of E. Haven, No. 3:12-cv-01652 (D.

Conn. Dec. 20, 2012). After the events here, the

Government again reiterated this view. See Br. for

United States as Amicus Curiae, No. 16-1650, Fields

v. City of Philadelphia, 862 F.3d 353 (3d Cir. 2017).

Finally, the question whether the training and

policies are relevant was outcome-determinative

below. The district court held that the Denver Police

Department’s training and policies tipped the balance

in the qualified-immunity inquiry. See Pet. App. 65a71a. The Tenth Circuit did not dispute that these

features of the case would require the denial of

qualified immunity. Instead, it deemed them legally

“irrelevant.” Id. 29a.

D.

The Tenth Circuit’s holding that officer

training and law enforcement policies are

categorically irrelevant is wrong.

1. This Court’s precedent dictates that training

and law enforcement policies are relevant to the

qualified-immunity inquiry.

In Hope v. Pelzer, 536 U.S. 730 (2002), the Court

considered whether it was clearly established, as a

matter of Eighth Amendment law, that prison guards

could not handcuff prisoners to a “hitching post” as a

17

sanction for disruptive conduct. Partly “in light of . . .

an Alabama Department of Corrections (ADOC)

regulation, and a DOJ report” stating that the

hitching post could not be used in the manner at issue,

the Court held that the guards were not entitled to

qualified immunity. Id. at 741-42. Lest there be any

doubt that the regulations and DOJ report mattered,

the Court expressly stated that they were “[r]elevant”

and that they “len[t] support to” and “buttressed” the

view “that reasonable officials in the ADOC should

have realized that the use of the hitching post . . .

violated the Eighth Amendment.” Id. at 743-45. The

dissenting Justices disagreed with the majority’s

ultimate determination that the guards were not

entitled to qualified immunity, but they accepted the

legitimacy of “rel[ying] on” non-judicial materials to

reach that holding. Id. at 759 (Thomas, J., dissenting).

Similarly, in Wilson v. Layne, 526 U.S. 603 (1999),

the Court considered whether it was clearly

established that the Fourth Amendment prohibited

police officers from allowing members of the media to

accompany them while executing warrants in people’s

homes. “[I]mportant to [the Court’s] conclusion” that

the law was not clearly established in this regard was

“a Marshals Service ride-along policy that explicitly

contemplated that media who engaged in ride-alongs

might enter private homes with their cameras as part

of fugitive apprehension arrests.” Id. at 617. As in

Hope, the dissent disagreed with the majority’s

qualified immunity holding, but it accepted that

officers and courts could look to “such a document for

guidance.” Wilson, 526 U.S. at 625 (Stevens, J.,

dissenting).

18

The Tenth Circuit cited Hope nine times. Pet.

App. 19a, 31a, 33a, 34a, 38a, 61a. It cited Wilson as

well. Id. 36a. Yet the Tenth Circuit never mentioned

those cases’ express reliance on training and policies.

Once the full reasoning in those cases is properly

taken into account, the court of appeals’ holding

cannot stand.

2. Instead of engaging with the pertinent analyses

in Hope and Wilson, the Tenth Circuit gave two

reasons for holding that training and law enforcement

policies are “irrelevant” to the qualified-immunity

analysis. First, the Tenth Circuit opined that

“[j]udicial decisions are the only valid interpretive

source of the content of clearly established law.” Pet.

App. 28a (emphasis added). Second, the Tenth Circuit

asserted that a court’s qualified-immunity analysis

turns exclusively on the clearly-established-law

inquiry—that is, “on the objective reasonableness of

an official’s conduct”—and never “on whether he

subjective[ly] belie[ved] his conduct was lawful.” Id.

22a (internal quotation marks and citations omitted).

Neither of these assertions affords license to disregard

this Court’s on-point precedent. But even on their own

terms, the assertions are misguided.

a. The “clearly established law” inquiry is

designed to determine whether a “reasonable officer”

in the situation at issue would have known that his

conduct was unlawful. Anderson v. Creighton, 483

U.S. 635, 639-41 (1987). As the Tenth Circuit

observed, this inquiry is an objective one. Pet. App.

22a.

But it does not follow that judicial opinions are the

only thing that can be relevant to whether the law is

clearly established. Past training or the existence of a

19

policy is also an objective fact, no different from the

existence of judicial precedent. That is, it requires no

assessment of an officer’s mind to determine whether

he was instructed that the conduct at issue was

unconstitutional or otherwise impermissible. It simply

requires taking testimony about the training that was

provided or reading the pertinent policy.

The Tenth Circuit also emphasized that only

judicial decisions can “authoritatively define the

boundaries of permissible conduct.” Pet. App. 28a.

That may be so, but it is a red herring. The qualifiedimmunity doctrine deals with remedies, not rights

themselves. And there is nothing that restricts courts

from considering legal prescriptions in training

manuals and the like in determining whether to hold

a defendant liable for damages. To the contrary, it is

commonplace in the realm of remedies to consider

things like whether a defendant followed a “stated

policy” prohibiting sexual harassment, Faragher v.

City of Boca Raton, 524 U.S. 775, 807 (1998), or—for

purposes of the Fourth Amendment’s exclusionary

rule—whether a police officer’s conduct complied with

an existing statute, Illinois v. Krull, 480 U.S. 340, 34950 (1987), or regulation, United States v. Ross, 32 F.3d

1411, 1415 (9th Cir. 1994).

In fact, municipal liability under Section 1983

itself turns not just on whether the defendant violated

the Constitution, but also on whether the violation

stemmed from a “policy” or practice. Monell v. Dep’t of

Social Servs., 436 U.S. 658, 690 (1978). As the district

court below observed, it “makes no sense” to enable a

municipal defendant to avoid liability on the ground

that it had a “policy in place” prohibiting the conduct

at issue, and then to turn around and ignore the

20

individual defendants’ violation of that policy when

assessing their own liability. Pet. App. 66a; see also id.

69a-70a. The same policies that absolve the police

department here of liability put the officers

unambiguously on notice that their conduct was

unconstitutional—and thus properly subjected them

to individual liability.

That leaves the Tenth Circuit’s invocation of

Marbury v. Madison, 5 U.S. (1 Cranch.) 137 (1803),

and McCullough v. Maryland, 17 U.S. (4 Wheat.) 316

(1819). Pet. App. 28a. It is, no doubt, “emphatically the

province and duty of the judicial department to say

what the law is.” Marbury, 5 U.S. (1 Cranch.) at 177;

see also McCullough, 17 U.S. (4 Wheat.) at 401

(similar). But there is considerable irony in invoking

that concept in a decision that expressly declines to

say what the law is. See Pet. App. 30a n.4. More

fundamentally, the notion that Marbury and

McCullough prevent courts from holding officials

accountable for violating constitutional rules of which

they had unambiguous notice reinforces that the

qualified-immunity

doctrine

has

become

so

disoriented that this Court’s attention is required. If

anything, the pertinent lesson from Marbury should

be that the United States is “a government of laws,

and not of men,” and “[i]t will certainly cease to

deserve that high appellation, if the laws furnish no

remedy for the violation of a vested legal right.” 5 U.S.

(1 Cranch.) at 163; see also Zadeh v. Robinson, 928

F.3d 457, 481 (5th Cir. 2019) (Willett, J., concurring).

b. Even if evidence of training and law

enforcement policies were instructive only as to an

officer’s subjective state of mind, they would still be

relevant to the qualified-immunity inquiry. The

21

qualified-immunity doctrine is designed to prevent

officers from being held liable based on constitutional

rules they “neither knew nor should have known”

existed. Harlow, 457 U.S. at 819 (emphasis added); see

also Butz v. Economou, 438 U.S. 478, 506 (1978) (“[I]t

is not unfair to hold liable the official who knows or

should know he is acting outside the law.” (emphasis

added). As noted above, the clearly-established-law

inquiry implements the “should have known” prong of

this test by identifying when any reasonable officer

must have known she was acting illegally. But that

analysis is unnecessary when the officer already knew

from her training and binding departmental policies

that she was acting illegally.

The Court stated as much in Malley v. Briggs, 475

U.S. 335 (1986), explaining that qualified immunity

does not shield “incompetent” officers “or those who

knowingly violate the law.” Id. at 341 (emphasis

added). The Court has reaffirmed this formulation

numerous times since, indicating time and again that

officers who know that their conduct is

unconstitutional are not entitled to qualified

immunity. See Kisela v. Hughes, 138 S. Ct. 1148, 1152

(2018) (per curiam); White v. Pauly, 137 S. Ct. 548, 551

(2017) (per curiam); Mullenix v. Luna, 577 U.S. 7, 1112 (2015) (per curiam); Stanton v. Sims, 571 U.S. 3, 6

(2013) (per curiam).4

4

As the Tenth Circuit noted, Justice Brennan made a

similar point in his concurrence in Harlow v. Fitzgerald, 457 U.S.

800 (1982). See Pet. App. 24a-25a. The Tenth Circuit reasoned

that Justice Brennan’s concurrence is “not binding.” Id. 24a

(citation omitted). But the actual-knowledge prong of qualifiedimmunity analysis derives from Harlow’s majority opinion, and

has been reaffirmed in Malley and numerous other decisions.

22

Ignoring all of this recent precedent, the Tenth

Circuit contended that Anderson v. Creighton

rendered “an officer’s ‘subjective beliefs’” categorically

“irrelevant.” Pet. App. 22a-23a (quoting Anderson, 483

U.S. at 641). But the officer in Anderson had no

subjective belief that his conduct was unlawful. Nor

did the Court’s opinion otherwise bar consideration of

subjective knowledge. To the contrary, the Court

explained that qualified immunity “generally turns on

the ‘objective legal reasonableness’ of the action.”

Anderson, 483 U.S. at 639 (emphasis added) (quoting

Harlow, 457 U.S. at 819). And the Court reaffirmed

Malley’s proviso that qualified immunity is not

available to officers “who knowingly violate the law.”

Id. at 638 (quoting Malley, 475 U.S. at 341).

The Malley proviso also makes sense. “[T]he

focus” of the qualified-immunity inquiry “is on

whether the officer had fair notice that her conduct

was unlawful.” Kisela, 138 S. Ct. at 1152 (quoting

Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per

curiam)); see also Hope, 536 U.S. at 739 (qualified

immunity operates “to ensure that before they are

subjected to suit, officers are on notice that their

conduct is unlawful” (quoting Saucier v. Katz, 533 U.S.

194, 206 (2001))). The “clearly established” inquiry is

one way to establish the requisite notice, by way of a

legal rule that a reasonable officer is presumed to

know clearly established law. But when an officer

actually knew her conduct was unlawful, the fairnotice requirement is even more plainly satisfied.

Indeed, it would turn the qualified-immunity

doctrine’s fair-notice concept upside down to say that

officers may testify that they “knew—based on their

training or from municipal policies”—that their

23

conduct was unlawful, and then shield themselves

from liability on qualified-immunity grounds. Pet.

App. 29a. The fact that the Tenth Circuit held

otherwise here shows just how far some modern

qualified-immunity case law has strayed from the

doctrine’s origins. There may be some historical

support for granting qualified immunity where an

officer acted in accordance with local policy or

training. See Baxter v. Bracey, 140 S. Ct. 1862, 1864

(2020) (Thomas, J., dissenting from the denial of

certiorari). But there is zero historical support for

immunizing an officer where his unconstitutional

conduct flouted his training and local policy. Id.

II. The Court should address whether the First

Amendment clearly establishes that individuals

may record police officers carrying out their

duties in public.

The first question presented is certworthy in its

own right. The second question presented here—

whether the First Amendment clearly establishes that

individuals may record police officers carrying out

their duties in public—is also worthy of review.

A. The circuits are openly split over this issue.

As the Tenth Circuit acknowledged, the circuits

are “split on the clearly-established-law question” in

this case—namely, whether the First Amendment

clearly establishes that individuals may record police

officers carrying out their duties in public. Pet. App.

37a; see also ACLU of Illinois v. Alvarez, 679 F.3d 583,

601 & n.10 (7th Cir. 2012) (likewise noting “circuit

split” over whether the “right to record police” was

clearly established).

The first decision in this regard was issued in

2010. In that case, the Third Circuit held that there

24

was no clearly established right to record the police

while carrying out official duties in public. Kelly v.

Borough of Carslisle, 622 F.3d 248, 262 (3d Cir. 2010).

In a subsequent case involving events occurring just

months before the events here, the Third Circuit

reaffirmed this view, holding that officers who

retaliated against individuals for filming them were

entitled to qualified immunity. Fields v. City of

Philadelphia, 862 F.3d 353, 362 (3d Cir. 2017). About

the same time, the Fifth Circuit issued a decision to

the same effect, Turner v. Lieutenant Driver, 848 F.3d

678, 687 (5th Cir. 2017), and the Tenth Circuit

followed those decisions here. Pet. App. 36a-38a.

The First Circuit, by contrast, held shortly after

the Third Circuit initially staked out its position on

the issue that the First Amendment right “to

videotape police carrying out their duties in public” is

clearly established. Glik v. Cunniffe, 655 F.3d 78, 8285 (1st Cir. 2011). In Glik, an individual, “[c]oncerned

that the officers were employing excessive force to

effect [an] arrest,” stood roughly ten feet away and

“record[ed] video footage of the arrest on his cell

phone.” Id. at 79-80. After the officers retaliated

against him, he filed suit under Section 1983 claiming

a violation of the First Amendment. The First Circuit

rejected the officers’ assertion of qualified immunity,

stressing that “a citizen’s right to film government

officials, including law enforcement officers, in the

discharge of their duties in a public space is a basic,

vital, and well-established liberty safeguarded by the

First Amendment.” Id. at 85; see also Gericke v. Begin,

753 F.3d 1, 9-10 (1st Cir. 2014) (applying this holding

in context of recording a traffic stop).

25

In short, if this case had arisen in New England

instead of the Mountain West, the officers would not

have been entitled to qualified immunity. Only this

Court can resolve this conflict.

B. The issue is vitally significant.

The question whether individuals have a clearly

established right to film police officers performing

their duties in public is vitally significant. Such

recordings play a central role in facilitating the

public’s awareness and scrutiny of police tactics.

Sometimes such recordings build public trust. They

may also evoke sympathy for the difficult and

dangerous tasks officers can be required to perform.

Other times recordings reveal abuses of authority

and produce public outcry that leads to reform. The

recent recording of the killing of George Floyd—which

emerged shortly after the Minneapolis Police

Department characterized the killing as a “medical

incident during police interaction”5—is one prominent

example. The 1991 recording of the beating in Los

Angeles of Rodney King is another. Though less

explosive, the recording in this case is still another.

Like those other recordings, the recording here aired

on the local news. After that publicity, the Denver

Police Department changed its policy regarding when

officers may use physical force on persons suspected of

holding potential evidence in their mouths. SA_92;

A_1098. Yet so long as the right to record uniformed

police officers in public spaces is not protected and

enforceable, this method of participating in selfgovernment and instigating policy change is at risk.

5

https://www.famous-trials.com/george-floyd/2720-originalmpd-statement-on-floyd-a-medical-incident.

26

C. This case is an ideal vehicle for resolving the

conflict.

As with the first question presented, this case is

an excellent vehicle for resolving whether individuals

have a clearly established right to film police officers

performing their duties in public spaces. The facts of

this case cleanly present the issue. There is no

contention, for instance, that petitioner somehow

interfered with the officers’ ability to perform their

duties or that the officers were carrying out those

duties in nonpublic spaces. The Tenth Circuit also

considered the legal issue at length.

The Tenth Circuit framed its analysis in terms of

whether the asserted First Amendment right was

clearly established “in August 2014.” Pet. App. 29a.

But specific framing poses no difficulty. An inherent

feature of every qualified-immunity case is that it

involves looking backwards to decide whether the law

was clearly established “at the time of the conduct” at

issue. Brosseau v. Haugen, 543 U.S. 194, 198 (2004)

(per curiam). And there has been no legal development

since the events here that undercut the relevancy of

the judicial precedent that then existed. Accordingly,

answering the question whether the First Amendment

right at stake here was clearly established by 2014 will

not only resolve the circuit split over this issue but

should also resolve the question whether the law is

clearly established right now.

D. The Tenth Circuit incorrectly held that the

First Amendment right here is not clearly

established.

The robust consensus of federal appellate

decisions demonstrates that the underlying right of

individuals to record police officers performing their

27

duties in public spaces has been clearly established

since before the events at issue here. This Court’s First

Amendment precedent confirms that reality.

1. The clearly-established-law inquiry does not

require a case from this Court that is “directly on

point,” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011),

or even “materially similar” to the situation at hand,

Hope v. Pelzer, 536 U.S. 730, 741 (2002). A “robust

‘consensus of cases of persuasive authority’” can also

clearly establish a legal rule. al-Kidd, 563 U.S. at 742

(quoting Wilson v. Layne. 526 U.S. 603, 617 (1999)).

Put another way, the “weight of authority from other

courts” can itself create clearly established law. Pet.

App. 37a (citation omitted).

When the events here occurred, all four federal

courts of appeals to have considered the constitutional

issue had held that “there is a First Amendment right

to record the police performing their duties in public

spaces.” Pet. App. 35a (citing ACLU of Illinois v.

Alvarez, 679 F.3d 583 (7th Cir. 2012); Glik v. Cunniffe,

655 F.3d 78 (1st Cir. 2011); Smith v. City of Cumming,

212 F.3d 1332 (11th Cir. 2000); Fordyce v. City of

Seattle, 55 F.3d 436 (9th Cir. 1995)).6 But, citing

6

More recently the Third and Fifth Circuits have agreed

with this conclusion, although they held that the right had not

previously been “clearly establish[ed].” See Fields, 862 F.3d at

362; Turner, 848 F.3d at 687. That brings the circuit tally on the

underlying constitutional issue to six, with none opposed. District

courts in several circuits that have not yet addressed the issue

also have recognized the right. See Garcia v. Montgomery

County, 145 F. Supp. 3d 492, 506-07 (D. Md. 2015); Higginbotham

v. City of New York, 105 F. Supp. 3d 369, 380 (S.D.N.Y. 2015);

Lambert v. Polk County, 723 F. Supp. 128, 133 (S.D. Iowa 1989);

Channel 10, Inc. v. Gunnarson, 337 F. Supp. 634, 638 (D. Minn.

1972).

28

Wilson, the Tenth Circuit held that respondents were

entitled to qualified immunity because the circuits

have “disagreed regarding whether this purported

First Amendment right to record [i]s clearly

established.” Pet. App. 36a.

The Tenth Circuit misread Wilson. That case

holds that qualified immunity is generally appropriate

where courts “disagree on a constitutional question.”

Wilson, 526 U.S. at 618 (emphasis added); see also

Stanton v. Sims, 571 U.S. 3, 10 (2014) (per curiam)

(same). But that is not the situation in this case. Here,

every circuit to consider the underlying constitutional

question has agreed on that question. The Tenth

Circuit simply confused the relevance of a split on the

issue of qualified immunity with a split on the

underlying constitutional question. Because there is

no disagreement on the underlying constitutional

question, qualified immunity is inappropriate here.

2. Even if the consensus in the courts of appeals

alone were not enough to establish that the right to

record the police in performance of their official duties

in public is clearly established, the Tenth Circuit’s

holding would still be erroneous. “Basic First

Amendment principles” long recognized by this Court

fortify the lower court consensus. Glik, 655 F.3d at 82.

In particular, “the First Amendment goes beyond

protection of the press and the self-expression of

individuals.” First Nat’l Bank v. Bellotti, 435 U.S. 765,

783 (1978). It also protects “the creation and

dissemination of information.” Sorrell v. IMS Health

Inc., 564 U.S. 552, 570 (2011). This right to capture

and disseminate information “has particular

significance” with respect to promoting the discussion

of governmental affairs. Bellotti, 435 U.S. at 777 n.11;

29

accord Mills v. Alabama, 384 U.S. 214, 218 (1966). “[I]t

is here that the state has a special incentive to repress

opposition and often wields a more effective power of

suppression.” Bellotti, 435 U.S. at 777 n.11.

“An important corollary” to the right to contribute

to the stock of public information about governmental

operations is that “[t]here is an undoubted right to

gather news ‘from any source by means within the

law.’” Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978)

(quoting Branzburg v. Hayes, 408 U.S. 665, 681-82

(1972)). This is especially true with respect to police

activity in public places. Given the vast discretion

accorded police officers in their day-to-day

undertakings, “[t]he public has an interest in [the]

responsible exercise” of police authority. Gentile v.

State Bar, 501 U.S. 1030, 1035-36 (1991); see also City

of Houston v. Hill, 482 U.S. 451, 461 (1987) (“[T]he

First Amendment protects a significant amount of

verbal criticism and challenge directed at police

officers.”). Gathering and “disseminat[ing] of

information relating to alleged governmental

misconduct” in this respect helps to deter abuses of

power and to formulate policy responses when abuses

occur. Gentile, 501 U.S. at 1034-35 (internal quotation

marks omitted).

The Tenth Circuit acknowledged that where

“general precedent applies ‘with obvious clarity,’ the

right can be clearly established notwithstanding the

absence of binding authority involving materially

similar facts.” Pet. App. 34a (discussing Hope, 536

U.S. at 741 (citations omitted)); accord Taylor v.

Riojas, 141 S. Ct. 52, 53 (2020) (per curiam). But the

Tenth Circuit reasoned that the “First Amendment

principles protecting the creation of speech and the

30

gathering of news” that exist this Court’s case law are

not clear enough to “put the unconstitutionality of the

officers’ allegedly retaliatory conduct ‘beyond debate.’”

Pet. App. 35a (quoting Kisela v. Hughes, 138 S. Ct.

1148, 1152 (2018)). The Tenth Circuit did not

elaborate on this contention; that is, it offered no

reason why the First Amendment might not protect

the right to record officers performing their duties in

public. But the Tenth Circuit apparently believed that

the absence of any precedent from this Court involving

expressive responses to police activity in the field was

fatal to petitioner’s claim. See id. 36a-37a (citing

Turner, 848 F.3d at 686).

This reasoning is mistaken. For one thing, it

improperly ignores the robust body of lower court

jurisprudence that is directly on point. The clearlyestablished-law inquiry is not a game of divide-andconquer. It is a holistic inquiry. See, e.g., Hope, 536

U.S. at 736-46. And here, the combination of precedent

from this Court and the lower courts (plus the officers’

training and departmental policies, see supra at 1623) renders the law clearly established.

Even so, the Tenth Circuit overlooked the salience

of this Court’s decisions in Hill and Lewis v. City of

New Orleans, 415 U.S. 130 (1974). In Hill, a bystander

observed police officers questioning someone holding

up traffic and shouted, “Why don’t you pick on

someone your own size?” 482 U.S. at 453-54. In Lewis,

a passenger in a car shouted obscenities at an officer

who asked to see her husband’s driver’s license. The

Court held in these cases that the First Amendment

guarantees citizens the right to direct “verbal

criticism” or “opprobrious” language at police officers

who are performing their duties in public. See Hill, 482

31

U.S. at 461; Lewis, 415 U.S. at 132. This is so even if

the individual’s speech “interrupt[s]” officers, making

it more difficult for them to conduct their duties. Hill,

482 U.S. at 462.

The First Amendment right here follows a fortiori.

Recording officers performing official duties in public

is expressive activity, equivalent to speaking to them

or disseminating a documentary regarding their

actions. See Brown v. Ent. Merchs. Ass’n, 564 U.S.

786, 792 n.1 (2011) (“Whether government regulation

applies to creating, distributing, or consuming speech

makes no difference.”). And peacefully undertaking

such expressive activity here does not interfere with

law enforcement operations in any way. What’s more,

filming police conduct such as the conduct here

contributes to “the free discussion of governmental

affairs,” Mills, 384 U.S. at 218, far more than hurling

sarcastic or foul language at the police. In light of

these precepts, any reasonable officer would have

understood that the First Amendment protected the

conduct at issue in this case—and the officers here had

been trained to respect that conduct. The Tenth

Circuit, therefore, had no justification to cloak the

officers in qualified immunity.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

32

Respectfully submitted,

Elizabeth Wang

LOEVY & LOEVY

2060 Broadway, Suite 460

Boulder, CO 80302

Kendall Turner

O’MELVENY & MYERS LLP

1625 Eye Street, NW

Washington, DC 20006

Yaira Dubin

O’MELVENY & MYERS LLP

7 Times Square

New York, NY 10036

July 8, 2021

Jeffrey L. Fisher

Counsel of Record

Edward C. DuMont

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

(650) 724-7081

jlfisher@stanford.edu