992 F.3d 1003
10th Cir.2021Background:
- On Aug. 14, 2014 Levi Frasier filmed Denver police using force during an arrest; he later hid the tablet with the recording and returned to his parked car.
- Officer Christopher Evans and four other officers approached Frasier, asked for a statement, and pressed him to turn over the recording; Frasier initially lied that he had no video because he feared arrest.
- Frasier ultimately retrieved his tablet; Evans took it, searched it without a warrant or Frasier’s consent for ~30–45 seconds, then returned it; Frasier later claimed the video was deleted but forensic review showed it remained on the device.
- Frasier sued under 42 U.S.C. § 1983 for First Amendment retaliation (for recording police), Fourth Amendment unlawful detention and search, and civil conspiracy; the City was also sued but later dismissed on summary judgment.
- The district court granted qualified immunity on some Fourth Amendment claims but denied it on the First Amendment retaliation claim (finding officers actually knew via training that the public has a right to record police) and denied summary judgment on a conspiracy-to-search claim; the officers appealed.
- The Tenth Circuit reversed: it held subjective knowledge or training cannot substitute for clearly established law and concluded the asserted First Amendment right was not clearly established in Aug. 2014; it also reversed the denial of qualified immunity on the Fourth Amendment conspiracy claim.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether officers lose qualified immunity on First Amendment retaliation because they actually knew (via training/policy) the public could record police | Frasier: officers admitted they knew training/policy protected recording, so they knowingly violated his First Amendment rights and cannot claim qualified immunity | Officers: qualified immunity is an objective test; subjective knowledge/training is irrelevant to whether law was clearly established | Court: Reversed district court; subjective knowledge/training irrelevant; officers entitled to qualified immunity because right was not clearly established in Aug. 2014 |
| Whether a First Amendment right to record police was clearly established in Aug. 2014 (sufficiently particularized) | Frasier: general First Amendment principles (speech/newsgathering) and out-of-circuit decisions established the right | Officers: no controlling Tenth Circuit precedent; authority was split among circuits so officers lacked fair notice | Court: Right was not clearly established with particularity; circuit split and general principles insufficient; qualified immunity applies |
| Whether denial of qualified immunity on § 1983 conspiracy claim (to search tablet) was proper given the district-court factual findings (surrounding, heated discussion, acquiescence) | Frasier: presence, heated discussion, and his coerced acquiescence permit a reasonable jury to infer an agreement to force a search | Officers: mere parallel presence/requests and lawful investigative objective insufficient to show meeting of the minds or a conspiratorial agreement; no evidence others knew of Evans’s alleged search | Court: Reversed; plaintiff failed to carry burden to show an unlawful, clearly established conspiracy to search; qualified immunity applies |
| Whether an official who actually knows he is violating the law can be denied qualified immunity (Brennan concurrence argument) | Frasier: Harlow concurrence and some prior language support denying immunity when an official actually knows law is violated | Officers: Harlow established an objective standard; subjective belief is irrelevant; Brennan concurrence is non-binding | Court: Rejected the subjective-knowledge exception; Harlow’s objective standard controls |
Key Cases Cited
- Harlow v. Fitzgerald, 457 U.S. 800 (qualified immunity requires objective inquiry)
- Anderson v. Creighton, 483 U.S. 635 (officials entitled to immunity unless unlawfulness is apparent in light of pre-existing law)
- Ashcroft v. al-Kidd, 563 U.S. 731 (clearly established law requires that reasonable official would know conduct unlawful)
- District of Columbia v. Wesby, 138 S. Ct. 577 (courts must not define clearly established law at high level of generality)
- Riley v. California, 573 U.S. 373 (searches of data on cell phones generally require a warrant)
- Snell v. Tunnell, 920 F.2d 673 (10th Cir.) (elements and proof required for § 1983 civil conspiracy)
- Hope v. Pelzer, 536 U.S. 730 (general precedents may supply fair warning only in rare, obvious cases)
- Taylor v. Riojas, 141 S. Ct. 52 (extreme circumstances may make general principles clearly established)