Looking For Answers On Blank Pages

Qualified immunity and the 10th Circuit’s choice

If anything was clear on May 26, 2019, it was that Abade Irizarry was filming , and Officer Ahmed Yehia was blocking his shot. Where and why Officer Yehia stood in the way posed hard questions with murky answers and ignited a quiet fire under the seats of criminal law reformers and First Amendment enthusiasts. The fire continues today. 

Now, though, the details of Irizarry v. Yehia seem clearer. Irizarry is a YouTube journalist who regularly posted videos and analyses on criminal justice topics in 2019. May 26 was no different, according to Irizarry’s original filed complaint. Irizarry alleged that he and three colleagues filmed a roadside sobriety check, until they couldn’t. After being radioed by his fellow officers conducting the sobriety check that journalists were recording, Officer Yehia left his car and planted himself between the cameramen and the scene, blocking both their view and their shot. Then, alleges the complaint, Yehia shined his flashlight into their camera lenses, “saturat[ing] the camera sensors.” To top it off, Yehia allegedly drove his vehicle straight at Irizarry, then at a colleague while sounding an air horn. 

Irizarry’s original lawsuit, in which he represented himself, claimed that Yehia “intentionally obstructed” the journalists’ view and violated a First Amendment right to film police officers in public areas. Last year, a three-judge panel from the 10th Circuit of Appeals — which includes in its jurisdiction Colorado, Oklahoma, Kansas, New Mexico, Wyoming, Utah, and portions of the Yellowstone National Park — dismissed Irizarry’s claims. Now, the court is poised to hear the appeal again, this time with a large firm representing Irizarry. A decision is expected soon. 

Irizarry, a man whose career meant chasing stories on criminal justice and law reform issues, will have his name attached to a case that will answer one fundamental question for the 560,625 squares miles around him: 

Does the First Amendment provide a right to record police officers performing their duty in public places? 

The 10th Circuit’s answer isn’t only important because it clarifies a First Amendment right in six states. An affirmative ruling points to a more significant phenomenon in U.S. criminal justice law reform that has surged over the last two years — a belated reexamination of a legal principle called qualified immunity that has denied citizens remedial justice for decades. Qualified immunity shields government officials “from lawsuits alleging that the official violated a plaintiff’s rights,” but only “where officials violated a ‘clearly established’ statutory or constitutional right.” This leaves little room for plaintiffs to do anything other than file complaints to police departments in instances of police misconduct and/or violence. 

As this article explores, qualified immunity is one of the thorniest reform issues in criminal law. The answer of what to do about it has evaded scholars, lawyers, and judges for decades. But if the 10th Circuit affirms a citizen’s First Amendment right to film police officers in public spaces, other districts that haven’t yet specified the right may follow. As more hesitant districts see their neighbors rolling laws like these back, the problems that come with qualified immunity may finally start to dwindle. 

Irizarry comes amid several nationwide “qualified immunity experiments” — where one community rolls back all or some aspects of qualified immunity, and the nation observes and reacts. As we’ll explore, these experiments have been promising. They offer a bright future for an area of law that has perpetually denied citizens of relief and judicial remedies.  Irizarry is an apt example of how difficult the process can be. 

To understand why qualified immunity is worthy of criticism and why even a small specification of First Amendment rights could resurge larger currents, we should start with the set of near-impossible hurdles that the rule imposes on American plaintiffs — as well as the legal paradox that keeps them standing. 

The Circular Problem

Unraveling qualified immunity at even the municipal level would be and has been difficult. But right now, the burden of difficulty is only felt by plaintiffs seeking the relief that the law supposedly guarantees them. 

A plaintiff like Irizarry must prove that their violated constitutional right was clarified in a past court ruling nearly to the letter. Again, under qualified immunity, the courts only consider “suits where officials violated a ‘clearly established’ statutory or constitutional right,” which means “courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights.” For the officer to know of the law, the reasoning goes, the case law must be nearly identical to their situation. 

Acceptable precedent typically extends to only finely-tailored appellate or Supreme Court cases. Rest assured that if you cited a court example that cemented your right  not to be arbitrarily tased by a police officer, it would not help you if you were arbitrarily maced by one (this happened). 

You might ask: how would one create new laws when their creation requires that they were already clearly established? Lower courts have asked too, and yet, no national standard exists. This is the circular problem: when a new law’s reasoning must be based on some previously specified illegality, it is impossible for anything new to develop. 

If fine-tuned case law isn’t accessible, plaintiffs seeking remedies for a violation of their constitutional rights will not be able to sue — even if, indeed, a right of theirs was broken by an official. Here we have a system where plaintiffs are told to protect their constitutional rights by looking to precedent and are left to somehow find answers by looking back to blank pages — searching for rights infractions that may be clear and true but have no specific appellate or Supreme Court precedent. The circular problem carries an undeniable truth: you’d better hope that your violated constitutional right isn’t unique. 

Removing the Barriers

In theory — and arguably in practice, in Jessop v. City of Fresno, the Second Circuit’s decision in Allah v. Milling, and many other cases — an official with qualified immunity could commit any number of crimes without “clearly established” protections for victims. You could make a game out of playing roulette with eyebrow-raising cases where courts somehow granted qualified immunity and squelched the plaintiff’s lawsuit. 

However, we should acknowledge that there are understandable reasons why qualified immunity is so difficult to restructure. Justification for qualified immunity can be found in its purpose: to shield officials like police officers from the potential of being sued for small, split-second decisions. Put differently, qualified immunity takes the weight to perform perfectly off of officers’ shoulders. The common hypotheticals raised by defenders of qualified immunity go something like this: If an officer hesitates to fire at an active shooter out of the fear of being wrong and having to deal with a lawsuit in an already low-paying job, and then is shot by that subject, what defense for repealing qualified immunity could there be? They make a strong point. 

This perspective is apt in its acknowledgment that officers would surely feel an unnecessary amount of pressure if huge price tags loomed over each threat they assessed. No officer should have to choose between financial ruin and the slight chance that they’re wrong about a truly dangerous threat. But are we seriously to believe that our best option is continuing to allow qualified immunity to prevent us from accessing our constitutional rights? Certainly not. There are options to address the hesitancy in police departments that repealing qualified immunity could bring about. 

Emerging reform options for qualified immunity address the understandable fears of those high civil court settlements and the legal fees that officers might pay to fend them off. But they’ve also prioritized, for the first time in decades, what citizens have been promised but not given: judicial remedies. 

Remedies come in several forms, but most commonly in damages awards, rulings that certain evidence cannot be constitutionally used in court due to officers obtaining them illegally, and sometimes “an injunction against future violence,” according to University of Chicago  legal scholar Aziz Huq. With qualified immunity, constitutional remedies are typically left out of the conversation. A family that would normally receive financial support or institutional action after unconstitutional conduct that results in the death of their son may, and likely would, be given no remedy if the officer was protected by qualified immunity. 

For decades, the Court and lower courts have adhered to qualified immunity and the “fault rule,” which Huq describes as the phenomenon where remedies are only granted “when it is crystal clear that the official did not just violate a constitutional rule, but acted in a blatantly and manifestly unconstitutional way.” New reforms aim to take this pressure off of constitutionally violated plaintiffs. 

The spearhead qualified immunity experiment in the U.S. is in Colorado, which has implemented perhaps the most significant and reliable rollback of qualified immunity to date. The state repealed qualified immunity completely but capped the amount of damages awards a plaintiff can receive at $25,000. This allows families to receive some constitutionally guaranteed remedies while also not demanding a toppling amount of money from sued public officials. 

Colorado’s results have been encouraging for those seeking relief. Families have received remedies — usually money, but at the very least, recognition that the justice system chooses not to deny them of their purportedly constitutional rights. A moderate slate of lawsuits have been filed since Colorado repealed qualified immunity, with the first brought in early 2021. Right now, several other cases are gestating — most notably, a case filed in the Denver District Court aims to use Colorado’s new qualified immunity perspective to seek justice, not money, for allegations of warrantless police violence. Michael Jacobs, the plaintiff bringing the case against 15 officers, assured the Denver Post that the suit wasn’t about money. 

“If these officers are not reprimanded they just feel more empowered to do the same thing again,” Jacobs said.

Some other reform options are suitable, but most have a long way to go. The most promising might be that officers could purchase insurance to cover potential lawsuits, similar to medical malpractice insurance. Still, this leaves officers with a burden of payment in a typically lower-paying job and a variety of other regulatory hurdles. Other reforms suggest that the liability in civil suits be shifted to the police department rather than the officer to account for those costs, but in theory, those lose the accountability that remedies are meant to offer. 

So, as the nation considers the difficulty of qualified immunity reform and eyes its experiments, the 10th Circuit has a choice: scale back qualified immunity by recognizing the First Amendment right to film officers in public places or remain stationary. The issue, of course, is that qualified immunity makes things far more complicated than merely recognizing a constitutional right that could exist. 

The 10th Circuit’s Choice

Here, then, is where the 10th Circuit is tangled up. Judge Nina Wang, who wrote the opinion and order to dismiss Irizarry’s case last year, saw the lack of clearly established precedent as the primary reason for dismissal — not whether the First Amendment right actually existed. 

Wang mentions that the Tenth Circuit encountered this potential First Amendment right in a prior case, Frasier v. Evans. In that case, the court concluded that the right was not clearly established in 2014 but did not preclude the right from being recognized later. In the 2021 opinion to dismiss Irizarry, she mentions that their decision in Frasier “[did] not consider, nor opine on, whether [the plaintiff] actually had a First Amendment right to record the police performing their official duties in public spaces.” It wasn’t until Irizarry that the 10th Circuit did. 

Wang confirms that, indeed, such a right seems to exist despite not being “expressly recognized” by the 10th Circuit. Yet she refused to say whether or not the 10th Circuit acknowledged the right. Her words should stand on their own: 

“Against this out-of-Circuit authority, this court is persuaded that it is appropriate to decide this  preliminary  question  and  concludes  that  a  right  to  record  police  officers  performing  their  official duties in public, subject to reasonable time, place, and manner restrictions, exists under the First Amendment” (emphasis added). 

None of it seemed to matter, at least not for Irizarry, as he faced the circular problem. 

The reason Wang and the two other judges dismissed the case had nothing to do with the merits of Irizarry’s allegations and everything to do with qualified immunity. The rights and remedies that a plaintiff is supposedly guaranteed under the Constitution, state constitutions, and statutes, unfortunately, came in second. 

Yes, the right is “clearly established.”

Two main tactics are open for Irizarry’s representation on this appeal. The most obvious is that six surrounding circuit courts have established the right in the years since Frasier. Moreover, since Frasier only ruled that the law wasn’t clearly established in 2014, not 2019, a five-year gap is unaccounted for. It wouldn’t be a reversal of precedent to note a change in what could be called “clearly established” across five years. 

The district courts that have implemented this freedom moved through this tedious “clearly established” process, loosening up other districts to do so, too. In Smith v. City of Cumming, which was determined in 2000, the 11th Circuit innovatively ruled that the First Amendment right to filming officers in public was protected, indeed hinging itself on clearly established case law. Over time, the 1st Circuit, 3rd Circuit, 5th Circuit, and 7th Circuit ruled similarly. An affirmative decision from the 10th Circuit would add to this conglomerative process. 

Of course, we can’t assume that the 10th Circuit will see these cases as similar enough to meet the clearly established standard. But the facts of several of these cases are remarkably similar, especially  Fields v. Philadelphia, determined in 2017 by the 3rd Circuit. In 2012, Amanda Geraci was filming an anti-fracking protest as a legal observer, marked clearly by her pink bandanna. As she filmed an arrest, an officer pinned her against the wall for several minutes,preventing her from capturing any more video. Richard Fields, a Temple University student at the time, saw the scene and took a photograph. An officer ordered Fields to leave, and Fields refused, citing that there was no legal reason for the order. Officers arrested Fields and confiscated his phone, later searching it. Geraci and Fields brought the case and ultimately, five years after the event, won. 

Fields,Geraci, and Irizarry were all stopped from filming routine police conduct in public. As strange and illogical as it may be that the 10th Circuit would say Fields is inapplicable, it is very possible that they will. Failure to acknowledge that the right exists in both instances would spell out a gross reversion to even stronger notes of qualified immunity that have been at hand since the 1980s and only recently reduced. 

In Closing

There is no definitive answer for how an affirmative decision in Irizarry would change things. At the very least, though — barring any of its high potential to help turn the national dial farther  away from strict qualified immunity — it will return the citizens of the 10th District their rightful privilege to constitutional remedies for instances like Irizarry. These wins may feel small, but that isn’t a bad thing. Laws take time to calcify, and nationwide legal movements have a habit of starting small until they behave like dominoes across regions (especially in appellate and Supreme Court decisions). In Irizarry and with respect to qualified immunity, it is long past time that a damaged citizen and a violated constitutional right are held in higher regard than the officials who violate them.