Public has a right to film police, 10th Circuit rules

The federal appeals court covering Colorado and five neighboring states on Monday for the first time affirmed that the public’s right to film police is protected under the First Amendment — a landmark ruling celebrated by press freedom organizations.

“Based on First Amendment principles and relevant precedents, we conclude there is a First Amendment right to film the police performing their duties in public,” Judge Scott M. Matheson Jr. wrote in a published opinion on behalf of a threejudge panel of the 10th U.S. Circuit Court of Appeals in Denver.

The U.S. Supreme Court has not yet taken up the issue.

The ruling centers on the case of a Youtube journalist, Abade Irizarry. On May 26, 2019, Irizarry and three others took out their phones to film a DUI traffic stop in Lakewood, only for officers to intentionally obstruct their line of sight.

One officer, Ahmed Yehia, also shone a bright light into their cameras and then gunned his police cruiser directly at the journalists while blasting his air horn, according to the ruling.

Irizarry sued Yehia, claiming the officer violated his First Amendment rights. A district court judge threw out the lawsuit, saying Yehia was entitled to qualified immunity as a law enforcement officer.

But Monday’s ruling reversed the decision, with the 10th Circuit judges concluding Irizarry’s right to film police “falls squarely within the First Amendment’s core purposes to protect free and robust discussion of public affairs, hold government officials accountable and check abuse of power.”

In the opinion, Matheson cited previous rulings in six of the nation’s 12 circuit courts of appeal affirming the right to film police as a basis for the 10th Circuit’s decision.

Press freedom organizations applauded Monday’s ruling, calling the right to record police “extremely critical” for holding law enforcement agencies accountable.

“It’s a huge victory,” said Dan Shelley, president and CEO of the Radio Television Digital News Association and Foundation. “It’s one we hope is replicated by the remaining circuit courts of appeal that have not yet spoken on this issue.”

Colorado law states that “officers may not threaten or intimidate individuals who are recording police activities.” But that doesn’t mean it doesn’t happen.

In 2018, journalist Susan Greene was detained and put in handcuffs after refusing to stop recording an arrest on a public sidewalk. The Denver police officers took Greene’s phone, telling her to “act like a lady.” The Denver Police Department later disciplined the officers for violating policy.

“It’s absurd it needed a court case to get the point across that we have basic First Amendment rights in the 10th Circuit to watchdog police and other officials who work on the public’s dime,” Greene said Monday. “It’s a no-brainer.”

It’s not just reporters who need this ruling, Greene stressed. It’s every person with a phone.

“To a large extent, (reporters) really are only as good as people’s willingness to record something they see as questionable,” she said.

The U.S. Supreme Court declined last year to take a case on this issue, leaving it to the circuit courts of appeal to rule for themselves. Members of Congress also planned to introduce legislation last year that would enshrine the right into law, but the bill never made it to a vote.

Without a Supreme Court ruling or act by Congress, Shelley said, the patchwork system of protections will continue to exist.

“It’s long overdue for Congress to act on this legislation,” he said.

Shelley and other press freedom advocates heavily protested a recent bill signed into law by Arizona Gov. Doug Ducey, which will it make illegal for people to record videos within eight feet of police activity.

First Amendment attorneys say the law could have a chilling effect on citizens recording arrests. Video evidence in the cases of George Floyd in Minneapolis or Eric Garner in New York provided shocking evidence of police brutality that helped spawn racial justice movements across the country.

“Every day in the United States, in encounters between law enforcement officers and the public, something happens that winds up in dispute,” Shelley said. “Only by having citizens protected by right-to-record laws can activities of police involved in those disputes be resolved.”

In addition to Colorado, Monday’s ruling is applicable in Kansas, New Mexico, Oklahoma, Utah and Wyoming.

“It’s absurd it needed a court case to get the point across that we have basic First Amendment rights in the 10th Circuit to watchdog police and other officials who work on the public’s dime. It’s a no-brainer.”

— Susan Greene, journalist