38 F.4th 1282
10th Cir.2022Background
- On May 26, 2019 Abade Irizarry (a YouTube journalist) and others filmed a DUI traffic stop in Lakewood, CO; Officer Ahmed Yehia arrived, stood in front of Irizarry’s camera, shined a bright flashlight into the camera, and later drove his cruiser toward the journalists and blasted the horn before being told to leave.
- Irizarry sued under 42 U.S.C. § 1983 alleging First Amendment violations (prior restraint/retaliation) and that Yehia sought to punish him for recording; he proceeded pro se in district court.
- The magistrate judge granted Yehia’s motion to dismiss under Rule 12(b)(6) on qualified immunity grounds: the court found a constitutional violation sufficiently alleged but concluded the right was not clearly established and dismissed with prejudice.
- On appeal the Tenth Circuit accepted the complaint’s allegations as true, recognized a First Amendment right to film police in public, and analyzed the three-element retaliation test from Worrell v. Henry (protected activity; chilling injury; retaliatory motive).
- The panel held Irizarry plausibly alleged each retaliation element (filming is protected; flashlight/blocking and driving a cruiser at them would chill a person of ordinary firmness; Yehia was motivated by the filming) and that the right was clearly established in May 2019 by a consensus of other circuits and this circuit’s Western Watersheds decision.
- The Tenth Circuit reversed the dismissal and remanded for further proceedings, ruling Yehia is not entitled to qualified immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Is filming police performing public duties protected by the First Amendment? | Irizarry: Yes — filming is newsgathering/speech. | Yehia: Not recognized in Tenth Circuit; law not clearly established. | Held: Yes; Tenth Circuit recognizes the right and it was clearly established by May 2019. |
| 2. Did Yehia’s actions (blocking, flashlight, driving cruiser at them) constitute retaliatory conduct that would chill protected activity? | Irizarry: Actions physically/interferingly impeded recording and threatened violence, satisfying Worrell. | Yehia: Conduct did not violate clearly established rights / was lawful. | Held: Allegations plausibly show injury that would chill a person of ordinary firmness and meet retaliation elements. |
| 3. Is Yehia entitled to qualified immunity? | Irizarry: No — right and chilling conduct were clearly established by other circuits and Western Watersheds. | Yehia: Yes — no prior Tenth Circuit case put officer on notice; plaintiff points to out-of-circuit law only. | Held: Not entitled to qualified immunity; consensus of circuits + Tenth Circuit authority clearly established the law. |
| 4. May persuasive out-of-circuit authority clearly establish law in this circuit? | Irizarry: Yes — a consensus of circuits can establish clearly established law. | Yehia: Tenth Circuit precedent required for clearly established rule. | Held: Yes; when multiple circuits (here six) and this circuit’s Western Watersheds point to the same conclusion, the right can be clearly established. |
Key Cases Cited
- Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) (recognizing a clearly established right to film police in public)
- Fields v. City of Philadelphia, 862 F.3d 353 (3d Cir. 2017) (holding First Amendment protects recording police subject to time, place, manner limits)
- Turner v. Lieutenant Driver, 848 F.3d 678 (5th Cir. 2017) (right to record police in public is protected speech)
- ACLU of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012) (making audio/ audiovisual recordings is protected and statute criminalizing recordings of police likely unconstitutional)
- Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995) (physical attempts to dissuade recording raise First Amendment concerns)
- Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000) (recognizing a right to photograph/videotape police subject to reasonable restrictions)
- Western Watersheds Project v. Michael, 869 F.3d 1189 (10th Cir. 2017) (indicating that creating recordings of public affairs is protected speech)
- Van Deelen v. Johnson, 497 F.3d 1151 (10th Cir. 2007) (physical and verbal intimidation can constitute chilling injury for retaliation claim)
- Worrell v. Henry, 219 F.3d 1197 (10th Cir. 2000) (articulating elements of a First Amendment retaliation claim)