The Supreme Court has repeatedly characterized qualified immunity as protecting “all but the plainly incompetent or those who knowingly violate the law.” Even taken at face value, that standard of care is depressingly low, especially with respect to law enforcement—i.e., the profession expressly charged with knowing and enforcing the law. But the Tenth Circuit’s recent decision in Frasier v. Evans illustrates how this oft-repeated maxim is itself highly misleading—because even when police officers do, in fact, know that they are violating someone’s rights, they can still receive qualified immunity.
The issue in this case is the First Amendment right to record police officers in the course of their public duty. While the Supreme Court itself has not directly addressed this question, the First, Third, Fifth, Seventh, Ninth, and Eleventh Circuits have all upheld this right (the earliest of these decisions dates back to 1995), and no circuit has held to the contrary. But in 2014, a group of Denver police officers violated this right when they threatened to arrest and conducted an illegal search of Levi Frasier, all because Frasier had recorded them using excessive force in the course of making a drug arrest.
Since 2007, the City of Denver has trained its officers that people have a First Amendment right to observe and record the police in public. This training included multiple courses for officers—which the defendants in this case had completed just a year before the incident—with a slide explicitly instructing that “citizens have a First Amendment right to videotape the actions of police officers in public places and that seizure or destruction of such recordings violates constitutional rights.”
Nevertheless, the Tenth Circuit held that these officers were entitled to qualified immunity. Even though, at the time of the incident, four circuits had already held that such conduct was unconstitutional, this particular right was not yet “clearly established” in the Tenth Circuit. Therefore, according to the court, the fact that the officers were explicitly on notice that their actions were unlawful was irrelevant.
Frasier v. Evans is an important case for understanding qualified immunity because, as appalling as the outcome is, it’s not obvious that the panel’s decision was actually at odds with current doctrine. To the contrary, this case illustrates how qualified immunity applies not in an exceptional case, but in a typical one, and it’s therefore an instructive primer on nearly all of qualified immunity’s perverse features. Consider the following basic tenets of qualified immunity, and how they’re applied in this case.
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