When Levi Frasier witnessed an altercation between police officers and a drug suspect in a parking lot, he took out his tablet and recorded the scene—capturing officers hitting the suspect in the face and knocking a pregnant woman onto the ground. Once the suspect was subdued, the officers cornered Frasier and demanded that he turn over his tablet. The officers then searched the device in an attempt to locate the video. After satisfying themselves that the video had been deleted, they allowed Frasier to leave.

Frasier later sued the officers under Section 1983, a landmark civil rights statute that allows damages for violations of constitutional rights, asserting that the officers violated his First Amendment right to film them performing their duties in public. Despite Section 1983’s broad protections, Supreme Court precedent has created “qualified immunity,” a doctrine that shields government officers from liability for their constitutional violations unless the rights they violated were “clearly established” in factually similar circumstances.

The U.S. Court of Appeals for the Tenth Circuit dismissed the suit, holding that the officers were entitled to qualified immunity. Although these officers had specifically been trained that there is a First Amendment right to film the police in public, the Tenth Circuit labelled this “irrelevant,” holding that only judicial decisions can create “clearly established” law. The court then held that a right to film the police was not clearly established, even though the courts of appeals uniformly agreed on its existence and Supreme Court precedent made that conclusion obvious.

Frasier sought review of this decision in the Supreme Court, where CAC filed an amicus brief in support of his petition for a writ of certiorari.

Our brief argues that the Tenth Circuit’s decision expands qualified immunity beyond what the Supreme Court has prescribed, wrongly preventing police officers from being held accountable even when they knowingly violate a person’s constitutional rights. As we note, the Supreme Court’s modern qualified immunity doctrine itself lacks any basis in the text, history, or common law backdrop of Section 1983. But the Court at least has recognized that qualified immunity does not shield “those who knowingly violate the law.” The Tenth Circuit’s decision casts aside even that minimal safeguard, holding officers immune for engaging in conduct that they knew from their training was unconstitutional.

As we explain, this expansion of qualified immunity contradicts Supreme Court precedent and serves no legitimate purpose. It also puts qualified immunity doctrine even more at odds with the common law standards that were familiar to the legislators who enacted Section 1983 in the nineteenth century. At common law, government officers who deprived individuals of their legal rights were generally liable for damages in tort lawsuits. And even in situations where officers could not typically be sued over discretionary choices they made while performing their duties, those officers were still held liable if they knowingly violated the law. The Supreme Court should reaffirm that basic principle under Section 1983.

Next, our brief describes how the Tenth Circuit’s expansion of qualified immunity undermines vital rights that the First Amendment, the Fourteenth Amendment, and Section 1983 were meant to protect. The First Amendment was enshrined in the Constitution to protect the ability of the people to criticize their government without fear of retaliation. At the Second Founding, in response to rampant violations of free speech and other liberties by Southern governments, the nation adopted the Fourteenth Amendment to force the states to obey the safeguards of the Bill of Rights. Shortly thereafter, Congress enacted Section 1983 to provide a remedy in the courts for those whose constitutional rights were violated by state or local officials. Because the officers in this case violated clearly established First Amendment rights when they retaliated against a person for filming them in public, qualified immunity should not allow them to evade responsibility for their actions.

In November 2020, the Supreme Court denied the petition for a writ of certiorari.