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Irizarry v. Yehia.

No. 21-1247. 7/11/2022. D.Colo. Judge Matheson. 42 USC § 1983—First Amendment Retaliation Claim—Motion to Dismiss—Qualified Immunity.

July 11, 2022

Plaintiff, a YouTube journalist and blogger, filmed a DUI traffic stop in Lakewood, Colorado. Defendant, an officer with the Lakewood Police Department, was called to the scene by the other officers. According to the complaint, when he arrived, defendant stood in front of plaintiff, obstructing his filming of the DUI roadside sobriety test. When plaintiff and a fellow journalist objected, defendant shined a flashlight into plaintiff’s camera. A fellow officer told defendant to stop. The complaint alleges that defendant then got back into his police cruiser and drove the vehicle in the direction of the two journalists. He then blasted his air horn repeatedly.

Plaintiff sued under 42 USC § 1983, alleging that defendant violated his First Amendment rights. The district court determined that plaintiff alleged a constitutional violation but held that defendant was entitled to qualified immunity because the violation was not one of clearly established law. The court therefore dismissed the complaint for failure to state a claim under FRCP 12(b)(6). Plaintiff appealed.

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

The Tenth Circuit first concluded that plaintiff alleged facts showing he was exercising his First Amendment right to film the police. Several First Amendment principles show that filming the police performing their duties in public is protected activity. Additionally, a Tenth Circuit decision provides that the First Amendment protects the filming of a police encounter, and precedent from every circuit also supports such a right.

Second, the Tenth Circuit held that plaintiff also showed that defendant’s actions against him would chill a person of ordinary firmness from continuing to engage in protected filming activity. Defendant’s actions made it difficult if not impossible for plaintiff to continue recording a potentially critical moment of the police activity. Further, defendant directed violence toward plaintiff by driving his police cruiser at him and his nearby colleague.

Third, the Tenth Circuit determined that the complaint alleged that plaintiff’s protected filming activity motivated defendant’s adverse actions, meeting the third element of the retaliation claim. The complaint alleged that defendant arrived on scene at the behest of his colleagues, and it was reasonable to infer his arrival was due to plaintiff recording the encounter. Moreover, because the physical interference with filming and driving the police vehicle at plaintiff served no legitimate law enforcement purpose, it was reasonable to infer that the filming substantially motivated defendant’s actions.

Finally, the Tenth Circuit held that plaintiff also demonstrated that defendant violated his clearly established right to be free from retaliation for filming police performing their public duties. General statements of law can clearly establish a right for qualified immunity purposes if they apply with obvious clarity to the specific conduct in question. In May 2019, when the incident occurred, plaintiff had a clearly established right to film the traffic stop based on the persuasive weight of authority from six other circuits and a Tenth Circuit decision arising from another context. The Tenth Circuit therefore concluded that as to all three elements of First Amendment retaliation, plaintiff demonstrated a violation of clearly established law, and defendant was not entitled to qualified immunity.

The district court’s decision was reversed and 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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