Lawyers urge appeals court overseeing 6 states to recognize constitutional right to film police

U.S. attorneys on Wednesday asked the appeals court, which oversees four western and two midwestern states, to recognize that the First Amendment guarantee of free speech gives people the right to film police while they do their work in the state. make it public – a decision that would allow officers to be prosecuted if they interfere with bystanders attempting to record them.

Six of the country’s 12 appellate courts have recognized that right, but the 10th Circuit Court of Appeals has not — and judges heard arguments in the case of a YouTube journalist and blogger who alleged that an agent in the suburbs of Denver blocked him from recording a traffic stop in 2019.

Natasha Babazadeh, a lawyer for the Justice Department’s Civil Rights Division, urged a three-member jury to rule that the filming of police is a constitutional right and said there has been an increase in the number of lawsuits brought against the police. police are brought in by people who say they could not record them publicly. The appeals court has jurisdiction over Oklahoma, Kansas, Colorado, Wyoming, New Mexico and Utah, and the portions of Yellowstone National Park that are in Idaho and Montana.

The issue of the first amendment intersects with the controversial legal doctrine called “qualified immunity”, which protects police officers from lawsuits for misconduct unless their actions violate clearly established laws. If the appeals court rules that people have the right to report to the police, police and officers working in the court’s region would be advised that they could be prosecuted for violating that right.

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A protester records video on his cell phone as he faces sheriffs outside the County Courthouse during demonstrations against the shooting of Jacob Blake in Kenosha, Wisconsin on Aug. 25, 2020.

KAMIL KRZACZYNSKI/AFP via Getty Images


In the Colorado lawsuit, Abade Irizarry said he was filming a police traffic stop in the town of Lakewood when he alleged that Officer Ahmed Yehia was in front of the camera to prevent Irizarry from recording. The agent shone a flashlight into Irizarry’s camera and into another blogger’s camera. Then Yehia left the two, got into his cruiser and rushed the cruiser to the two bloggers, the lawsuit said. The cruiser swerved before reaching the bloggers and they were not hit, the lawsuit said.

The case was heard in federal court in Denver, where a magistrate dismissed the case last year — in agreement with Yehia’s lawyers, who argued that the right to record police had not been clearly established at the time of the incident in 2019. .

Irizarry appealed and US government lawyers joined the case to support the public’s right to include police.

Alex Dorotik, the attorney for Yehia and the City of Lakewood, said in court documents that the appeals court must uphold the lower court’s ruling.

Appeals Court Judge Carolyn McHugh pointed out that Yehia was allegedly driving towards Irizarry and said agents could be held liable for actions so blatant that all agents should know they are violating people’s rights.

Dorotik told the appeals court panel that the motivation for Yehia driving to Irizarry should be considered, but later acknowledged it would be reasonable to conclude that this was motivated by Irizarry’s efforts to film the traffic stop.

Justice Department lawyers have not taken a position on whether Yehia should receive qualified immunity.

But they said the appeals court can rule on the constitutional question of whether people have the right to record police, whether or not the lawsuit against Yehia is reinstated. Legal documents filed by Attorneys at the Department of Justice emphasized the importance of eyewitness footage in the police investigation and in the search for suspects who attacked police during the January 6 U.S. Capitol uprising.

Alan Chen, a law professor at the University of Denver and one of the First Amendment experts who also urged the appeals court to rule on people’s right to police police, said that courts tend to hear cases closely rather than meddling in constitutional issues.

But the video of George Floyd’s murder brought national attention to the importance of people having the right to record the police while they are at work, he said.

“The more uncertainty there is, the more people are afraid to pick up their phones and answer the police,” Chen said.

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