Update: On March 29, 2021, the U.S. Court of Appeals for the Tenth Circuit reversed the district court’s decision, ruling that the officers are entitled to qualified immunity. The court remanded the case to the district court for further proceedings.
RCFP and 38 media organizations filed an amicus brief in Frasier v. Evans, a case before the Tenth Circuit. Plaintiff Levi Frasier brought a Section 1983 suit alleging First and Fourth Amendment claims against five Denver police officers after the officers detained, questioned, and threatened him with arrest after he filmed them on his tablet arresting and beating someone on a public street. As relevant to this amicus brief, the district court held that, although the First Amendment right to record police in public in the performance of their official duties is not clearly established in the Tenth Circuit, the officers were not entitled to qualified immunity because they had actual knowledge of the right as a result of workplace training; the officers appealed. The media coalition’s amicus brief urges the Tenth Circuit to recognize the First Amendment right to record the police in public and hold that it was clearly established in 2014, when Frasier encountered the officers, and is clearly established today. The amicus brief highlights examples of bystander recordings of police that the news media have used to report the news, and it discusses caselaw from the other circuits holding that the First Amendment protects the right to record police in public in the performance of their official duties. The media coalition was represented on this brief by local counsel from Ballard Spahr LLP.