Our View: Supreme Court whiffs on right to record cops

The Supreme Court had an opportunity this week to protect your right to record the misbehavior of rogue police officers. Instead, the court looked the other way while cops who sought to seize such a recording are shielded from accountability. So much for First Amendment protections.

By declining to hear a case from a federal appellate court, the Supreme Court let stand a dangerous ruling granting qualified immunity to Denver police officers accused of snatching a computer tablet from a man who had used it to record them punching a suspect in the face and grabbing his pregnant girlfriend, causing her to fall to the ground.

In recent years, such recordings have been vital to a national movement against racial injustice and excessive police force. In a few cases, the recordings have been a key to holding police accountable for a person’s brutal death.

Take, for example, the brave bystanders who recorded Minneapolis police officer Derek Chauvin kneeling on George Floyd’s neck for more than nine minutes while Floyd begged for his life. Without their videos, Chauvin might never have been tried and convicted of Floyd’s murder. Nor would there have been nationwide protests that helped launch police reform efforts.

By refusing to take Frasier v. Evans, the justices managed to set back both the public’s right to record police and efforts to hold police accountable for violating citizens’ constitutional rights.

Your rights vs. your ZIP code

The decision in this case makes the 10th Circuit Court of Appeals an outlier and leaves people living in the six states it covers – Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming – with weakened constitutional rights. Six other federal appeals courts, covering nearly half of the states, have ruled that citizens have a clear constitutional right to record police in public.

Because of this split, the Supreme Court needs to rule on the issue so Americans’ rights won’t depend on where they happen to live.

The Denver case began in 2014, when Levi Frasier, a bystander, recorded police officers beating a suspect. According to the lawsuit Frasier later filed, police retaliated, demanding to see his tablet computer, grabbing it from him and searching for the video – all without a warrant and in violation of Frasier’s rights. After failing to find the video, they let Frasier go with his tablet. Later he gave a copy of the video to a local news station, which aired it, and to the police department, which changed its use- of- force policy.

The officers involved said they struck the suspect in the face to try to get him to release a sock in his mouth, which they believed contained contraband. They argued they did not violate any clearly established law by trying to obtain the video evidence from Frasier and therefore deserved qualified immunity – a broad shield against police accountability that courts have too often taken to extremes.

The trial court rejected the cops’ immunity request after finding that the Denver Police Department had trained officers since 2007 that citizens have a First Amendment right to record police in public.

In 2013, training also focused on a Justice Department declaration that “seizure or destruction of such recordings violates constitutional rights.”

Twisting qualified immunity

The officers clearly should have known they were violating Frasier's rights. Nevertheless, the 10th Circuit threw out Frasier’s case, ruling that training was “irrelevant” to whether the officers knew they were violating a “clearly established law.” The only thing that renders a law clearly established in the 10th Circuit, the court stated, is a ruling from the Supreme Court or the 10th Circuit.

If that sounds absurd, it’s because it is. It shows how far courts have gone to twist the doctrine of qualified immunity to let officers off the hook for egregious behavior.

Now, advocates from across the political spectrum seeking to limit qualified immunity are running out of options. Earlier this year, when the U. S. Senate tried to eliminate qualified immunity for police, Republican opposition killed that effort.

This week, the Supreme Court could have reined in qualified immunity and ensured the public’s right to record police officers in action. Instead, it whiffed.

Unless Congress or the Supreme Court changes course, police officers will continue to have impunity in civil cases when they violate people’s rights, and Americans will lose even more trust in law enforcement.