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Frasier v. Evans.

No. 19-1015. D.Colo. Judge Holmes. First Amendment Right to Record Police Officers—Retaliation Claim—Conspiracy Claim—Qualified Immunity.

March 29, 2021


Plaintiff video-recorded Denver police officers while they were arresting a suspect in a drug deal. The video captured one officer hitting the suspect in the face six times in rapid succession and the officers’ physical interaction with a woman who approached the struggle. After the suspect was handcuffed, plaintiff returned to his parked vehicle. Officer Evans followed plaintiff to his vehicle and asked him to bring identification and the video of the arrest to the officer’s patrol car. Plaintiff brought his license, but not his tablet containing the video, to the patrol car.

Officer Evans then told plaintiff he needed a witness statement from him and handed him a form. When asked whether he had a video of the arrest, plaintiff claimed he did not. On the witness statement, plaintiff wrote that he did not see any inappropriate police conduct, that the officers stopped using force as soon as they had the suspect in custody, and that he only took a snapchat photo of the arrest, which he no longer had. Plaintiff later stated that his answers were lies made because he was afraid if he told the truth, he would have been incarcerated and the video would have been taken away. After he was encircled by several officers, plaintiff retrieved the tablet and showed it to Officer Evans, who grabbed the tablet and searched for the video. Plaintiff objected to the search. Officer Evans was unable to find the video and returned the tablet. Plaintiff left about 23 minutes after the officer first approached him.

Plaintiff filed a civil action against several officers and the City and County of Denver (Denver). As relevant here, he claimed the individual defendants retaliated against him for filming the suspect’s arrest in violation of the First Amendment, that they detained him and searched the tablet in violation of the Fourth Amendment, that they conspired to commit the constitutional violations, and that Denver was liable for the First Amendment violations due to its failure to train.

The officers successfully moved to dismiss the First Amendment claim on the basis of qualified immunity, because plaintiff’s right to record them in the performance of their official duties in public spaces was not clearly established at the time of their alleged conduct. The district court later granted summary judgment to Denver on the failure to train claim, based on the officers’ testimony that they understood that plaintiff had a right to record them. Based on this ruling, the court reinstated the First Amendment claim against the officers because the record supported a finding that at the time of the conduct the officers actually knew, based on their training, that plaintiff’s right existed. The court denied the officers’ motion for summary judgment based on qualified immunity on the reinstated claim. The court granted summary judgment to the officers on the Fourth Amendment claim, holding that Officer Evans had reasonable suspicion that plaintiff had violated Colorado law by making false statements to the police. The court also denied summary judgment on the conspiracy claim pertaining to the Fourth Amendment claim.

The officers filed an interlocutory appeal from the orders partially denying their qualified immunity defenses. As to plaintiff’s First Amendment retaliation claim, the officers contended that the court should have granted them immunity once it held that judicial precedent did not clearly establish plaintiff’s First Amendment right to record them at the time of the conduct. Judicial decisions are the only valid interpretive source of the content of clearly established law, and a defendant’s eligibility for qualified immunity is judged by an objective standard, so what the officers subjectively understood the law to be was irrelevant to this test. Thus, the training the officers received about First Amendment rights was not relevant to the clearly established law inquiry. Accordingly, the district court erred in denying the officers qualified immunity on the First Amendment retaliation claim.

Further, because the officers were entitled to qualified immunity on the First Amendment retaliation claim, it necessarily followed that they were also entitled to qualified immunity on the conspiracy claim as it related to the First Amendment right.

The officers also argued that the district court’s order denying them qualified immunity on plaintiff’s Fourth Amendment conspiracy claim was erroneous. Here, the court’s factual findings were not sufficient to support a legal conclusion that officers conspired to violate plaintiff’s Fourth Amendment rights by unlawfully searching plaintiff’s tablet. Further, any Fourth Amendment rights that plaintiff possessed were not clearly established under the particular facts of this case. Therefore, the district court erred in denying the officers qualified immunity with respect to plaintiff’s Fourth Amendment conspiracy claim.

The partial denial of the officers’ motions for summary judgment on the grounds of qualified immunity was reversed and the case was remanded for further proceedings.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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