Brief asks 10th Circuit to affirm the public’s First Amendment right to record police

By Jeffrey A. Roberts
CFOIC Executive Director

The Colorado Freedom of Information Coalition joined other organizations Monday in urging the U.S. Court of Appeals for the 10th Circuit to affirm the public’s First Amendment right to record police.

“Recognizing this clearly established right will benefit police officers and ordinary members of the public alike, and by extension the news media who rely on recordings of police officers to report the news in communities across this country,” says a friend-of-the-court brief submitted by Denver attorney Steve Zansberg on behalf of the Reporters Committee for Freedom of the Press and numerous other organizations, including CFOIC.

The brief concerns a federal lawsuit filed by Levi Frasier, who in August 2014 recorded a video showing a Denver police officer punching an unarmed suspect in the face and tripping his pregnant girlfriend. Frasier alleges that officers threatened him with arrest and illegally searched his tablet for the video, which later was shown in a FOX31 news story.

crime scene

The incident, among others, prompted the enactment in 2015 of a state law that reinforces a civilian’s right to record police and spells out a process for an officer to obtain a recording made by a bystander.

The officers in the Frasier case are appealing a district court decision to deny them qualified immunity, which protects government officials from liability in civil lawsuits unless their conduct violated a clearly established statutory or constitutional right.

City attorneys, in their defense of the officers, contend there is not a “robust consensus” among appellate courts regarding the right to record police. But Zansberg, who is president of CFOIC’s board, cites decisions from the First, Third, Fifth, Seventh and 11th circuits that have “expressly recognized that members of the public possess a qualified right, grounded in the First Amendment, to photograph and record the police in public places, subject to reasonable time, place, and manner restrictions.”

The Ninth Circuit has recognized “a First Amendment right to film matters of public interest, which would include police officers performing their duties,” the brief adds.

The filing cites several examples of recordings of police made by non-journalists that “were critical to the news media’s ability to inform the public,” some of which have “long impacted societal issues like racial equality and civil liberties.” The most famous, it says, may be the pre-smartphone era video of the 1991 police beating of Rodney King in Los Angeles.

“Today, the first source of information from the scene of a newsworthy event is often an average person with a smartphone,” the brief says. “These individuals play a significant role in monitoring the functioning of government, particularly when they serve as a source for the news media, who can distribute the information more broadly.”

The list of amicus brief signers is long and includes national organizations and companies such as the American Society of News Editors, the Society of Professional Journalists, The New York Times Co., the National Freedom of Information Coalition, Digital First Media (owner of The Denver Post), TEGNA Inc. (owner of 9NEWS), Gannett Co. (owner of the Fort Collins Coloradoan) and E.W. Scripps Co. (owner of Denver7).

The list also includes the Colorado Press Association, the Colorado Broadcasters Association, The Colorado Sun and The Colorado Independent. Last summer, Colorado Independent Editor Susan Greene was handcuffed and detained while using her phone to record Denver police officers near the state Capitol.

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