ABADE IRIZARRY v. A. YEHIA
No. 21-1247
United States Court of Appeals for the Tenth Circuit
July 11, 2022
Appellate Case: 21-1247 Document: 010110708555 PUBLISH FILED Christopher M. Wolpert Clerk of Court
PUBLISH
FIRST AMENDMENT SCHOLARS; JANE BAMBAUER; ASHUTOSH BHAGWAT; CLAY CALVERT; ALAN K. CHEN; MARGOT E. KAMINSKI; SETH F. KREIMER; JUSTIN F. MARCEAU; HELEN NORTON; SCOTT SKINNER-THOMPSON; NATIONAL POLICE ACCOUNTABILITY PROJECT; CATO INSTITUTE; ELECTRONIC FRONTIER FOUNDATION; UNITED STATES OF AMERICA, Amici Curiae.
Appeal from the United States District Court for the District of Colorado (D.C. No. 1:20-CV-02881-NYW)
Andrew T. Tutt, Arnold & Porter Kaye Scholer LLP, Washington, D.C. (Robert Reeves Anderson and David S. Jelsma, Arnold & Porter Kaye Scholer LLP, Denver, Colorado; Max Romanow, Arnold & Porter Kaye Scholer LLP, Chicago, Illinois; E. Milo Schwab, Ascend Counsel, LLC, Denver, Colorado, with him on the briefs) for Plaintiff - Appellant.
Alexander James Dorotik, City of Lakewood, Lakewood, Colorado, for Defendant - Appellee.
Natasha N. Babazadeh (Kristen Clarke, Assistant Attorney General, Nicholas Y. Riley, Attorney, with her on the brief), U.S. Department of Justice, Washington, D.C., filed an amicus curiae brief for the United States of America.
Mukund Rathi, Sophia Cope, and Adam Schwartz, Electronic Frontier Foundation, San Francisco, California, filed an amicus curiae brief on behalf of Plaintiff - Appellant, for the Electronic Frontier Foundation.
Clark M. Neily III and Jay R. Schweikert, Cato Institute, Washington, D.C., filed an amicus curiae brief on behalf of Plaintiff - Appellant, for the Cato Institute.
Lauren Bonds, National Police Accountability Project, New Orleans, Louisiana, and David Milton, Boston, Massachusetts, filed an amicus curiae brief on behalf of Plaintiff - Appellant, for the National Police Accountability Project.
Matthew R. Cushing and Elizabeth Truitt, University of Colorado Law School Appellate Advocacy Practicum, Boulder, Colorado, filed an amicus curiae brief on behalf of Plaintiff - Appellant, for the First Amendment Scholars.
Before MATHESON, KELLY, and McHUGH, Circuit Judges.
Early in the morning on May 26, 2019, Abade Irizarry, a YouTube journalist and blogger, was filming a DUI traffic stop in Lakewood, Colorado. Officer Ahmed Yehia arrived on the scene and stood in front of Mr. Irizarry, obstructing his filming of the stop. When Mr. Irizarry and a fellow journalist objected, Officer Yehia shined a flashlight into Mr. Irizarry‘s camera and
I. BACKGROUND
A. Factual Allegations
“In reviewing a motion to dismiss, we accept the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff.” Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016). Because Mr. Irizarry proceeded pro se before the district court, we liberally construe the pleadings. See Diversey v. Schmidly, 738 F.3d 1196, 1199 (10th Cir. 2013). Under these standards, we summarize the allegations in the complaint.
Mr. Irizarry is a “Youtube journalist and blogger” who “regularly publishes stories about police brutality and conduct or misconduct.” App. at 9 ¶ 10, 11 ¶ 24. On May 26, 2019, he and three other “YouTube journalists/bloggers” were filming a DUI traffic stop with their cell phones and cameras “for later broadcast, live-streaming, premiers, and archiving for their respective social medial channel[s].” Id. at 9 ¶¶ 10-11.1
Officers on the scene contacted Officer Yehia to report that four males were filming the traffic stop.2 Officer Yehia drove to the scene “in full regalia in a Marked cruiser, with every single light . . . turned on.” Id. at 9 ¶ 13. He exited his vehicle and “intentionally positioned himself directly in front of [Mr. Irizarry] . . . to make sure he intentionally obstructed the camera view of the D.U.I. Roadside sobriety test.” Id. at 9 ¶ 14. Mr. Irizarry and another journalist, Eric Brandt, “voiced their disapproval of the intentional obstruction” and “began to loudly criticize” Officer Yehia. Id. at 10 ¶ 16. Officer Yehia shined an “extremely bright flashlight” in Mr. Irizarry‘s and Mr. Brandt‘s cameras, “saturating the camera sensors.” Id. at 10 ¶ 17.
Officer Yehia continued “harassing” Mr. Irizarry and Mr. Brandt until another officer told him to stop. Id. at 10 ¶ 19. Officer Yehia got back into his cruiser, “drove right at [Mr. Irizarry] and Mr. Brandt, and sped away.” Id. at 10 ¶ 20. He made a U-turn, “gunned his cruiser directly at Mr. Brandt, swerved around him, stopped, then repeatedly began to blast his air horn at [the two men].” Id. at 10 ¶ 21.3 Eventually, Officer Yehia was instructed to leave
B. Procedural History
Mr. Irizarry, proceeding pro se, sued Officer Yehia under
Officer Yehia moved to dismiss under
The district court nonetheless held that Officer Yehia was entitled to qualified immunity because Mr. Irizarry had not shown a violation of clearly established law. He “failed to direct the court to a case which demonstrates that Officer Yehia was on notice that . . . standing in front of and shining a flashlight into [Mr. Irizarry‘s] camera . . . violated Mr. Irizarry‘s First Amendment rights.” Id. at 108. The court therefore dismissed the suit against Officer Yehia with prejudice.
Mr. Irizarry timely appealed.
C. Legal Background
1. Rule 12(b)(6) Dismissal
“We review de novo a district court‘s ruling on a motion to dismiss a complaint because of qualified immunity.” Thompson v. Ragland, 23 F.4th 1252, 1255 (10th Cir. 2022). “We accept all well-pleaded factual allegations in the complaint as true, and we view them in the light most favorable to the nonmoving party.” Sinclair Wyo. Refin. Co. v. A & B Builders, Ltd., 989 F.3d 747, 765 (10th Cir. 2021) (citation, quotations, and alterations omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted).
2. Qualified Immunity
“Individual defendants named in a
3. First Amendment Retaliation
To state a First Amendment retaliation claim, a plaintiff must allege facts showing “(1) that [he] was engaged in constitutionally protected activity; (2) that the defendant‘s actions caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the defendant‘s adverse action was substantially motivated as a response to the plaintiff‘s exercise of constitutionally protected conduct.” Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000) (quotations omitted).6
II. DISCUSSION
The complaint alleged a First Amendment retaliation claim under clearly established law, so Officer Yehia is not entitled to qualified immunity.7 We reverse.
Analyzing the three elements of a retaliation claim stated in Worrell under the facts alleged in the complaint, we conclude as follows:
First, as to constitutionally protected activity, the Tenth Circuit has not recognized a First Amendment right to film the police performing their duties in public. We recognize that the right exists and was clearly established when the incident occurred. Because Mr. Irizarry has alleged facts showing he was exercising his First Amendment right to film the police, he has met the first element of his retaliation claim under clearly established law.
Second, Mr. Irizarry‘s allegations also show that Officer Yehia‘s actions against him would chill a person of ordinary firmness from continuing to engage in protected filming activity. Because these actions obviously infringed protected activity and equaled or exceeded those in comparable Tenth Circuit and out-of-circuit cases, Mr. Irizarry has met the second element of his retaliation claim under clearly established law.
Third, the complaint alleged that Mr. Irizarry‘s protected filming activity motivated Officer Yehia‘s adverse actions, meeting the third element of the retaliation claim under clearly established law.
Thus, as to all three elements of First Amendment retaliation, (1) the complaint alleged a constitutional violation, and (2) Mr. Irizarry has shown the violation is one of clearly established law. We expand on these points below.
The complaint plausibly alleged that Officer Yehia retaliated against Mr. Irizarry for exercising his First Amendment rights. It alleged facts satisfying all three elements of a First Amendment retaliation claim under Worrell.
1. Constitutionally Protected Activity
Mr. Irizarry was engaged in protected First Amendment activity when he filmed the traffic stop. We recognize this right based on (a) core First Amendment principles and (b) relevant precedents from this and other circuits.
a. First Amendment principles
Three well-established First Amendment principles show that filming the police performing their duties in public is protected activity.
First, “[t]here is practically universal agreement that a major purpose of the First Amendment ‘was to protect the free discussion of governmental affairs.‘” Ariz. Free Enter. Club‘s Freedom Club PAC v. Bennett, 564 U.S. 721, 755 (2011) (quoting Buckley v. Valeo, 424 U.S. 1, 14 (1976) (per curiam)). This purpose enables “the press . . . to serve as a powerful antidote to any abuses of power by governmental officials.” Mills v. Alabama, 384 U.S. 214, 219 (1966). Filming the police and other public officials as they perform their official duties acts as “a watchdog of government activity,” Leathers v. Medlock, 499 U.S. 439, 447 (1991), and furthers debate on matters of public concern.
Second, “without some protection for seeking out the news, freedom of the press could be eviscerated.” Branzburg v. Hayes, 408 U.S. 665, 681 (1972). As the First Circuit noted, “An important corollary to this interest in protecting the stock of public information is that ‘there is an undoubted right to gather news from any source by means within the law.‘” Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011) (quoting Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978) (internal quotations and alterations omitted)). Filming the police is a form of news gathering.
Third, videorecording is “unambiguously” speech-creation, not mere conduct. Animal Legal Def. Fund v. Kelly, 9 F.4th 1219, 1228 (10th Cir. 2021), cert. denied, No. 21-760, S.Ct. ----, 2022 WL 1205840 (Apr. 25, 2022). “If the creation of speech did not warrant protection under the First Amendment, the government could bypass the Constitution by simply proceeding upstream and damming the source of speech.” W. Watersheds Project v. Michael, 869 F.3d 1189, 1196 (10th Cir. 2017) (quotations and alterations omitted); see also ACLU of Ill. v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012) (“The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected.“).8
b. Relevant precedents
In Western Watersheds, we indicated that the First Amendment protects the filming of a police encounter. W. Watersheds, 869 F.3d at 1196. There, plaintiffs challenged two Wyoming statutes that
Plaintiffs argued that the statutes violated the First Amendment. Id. at 1193. Relying on decisions from other circuits recognizing a First Amendment right to film the police in public, we held that the statutes regulated protected speech.9 Id. at 1197. We said that “[a]n individual who photographs animals or takes notes about habitat conditions is creating speech in the same manner as an individual who records a police encounter.” Id. at 1196.
Our statement in Western Watersheds finds support from every circuit to consider whether there is a First Amendment right to film the police in public. We summarize those opinions.
i. Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995)
Mr. Fordyce was videotaping police officers working a public protest, and one officer “attempted physically to dissuade” him from doing so. Fordyce, 55 F.3d at 438. Mr. Fordyce brought a
ii. Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000)
Mr. Smith alleged that city police prevented him and his wife from videotaping their actions. Smith, 212 F.3d at 1332. The Eleventh Circuit held that there is “a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct” rooted in the First Amendment right “to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.” Id. at 1333. The court, however, affirmed dismissal of the suit because the plaintiffs did not demonstrate that the defendants violated their First Amendment rights. Id.
iii. Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011)
Police arrested Mr. Glik for trying to film officers arresting a young man. Glik, 655 F.3d at 79. Mr. Glik sued the officers under
The court explained that “[t]he filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within” established First Amendment principles related to newsgathering and the public‘s right to receive information. Id. at 82. Relatedly, the court noted that “[g]athering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.‘” Id. (quoting Mills, 384 U.S. at 218). And that interest is especially prominent in matters involving law enforcement officials because they “are granted substantial discretion that may be misused to deprive individuals of their liberties.” Id.
iv. ACLU of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012)
The ACLU of Illinois brought a pre-enforcement challenge to the Illinois eavesdropping statute, which made it a class-one felony to create audio or audiovisual recordings of law enforcement officers performing their duties. Alvarez, 679 F.3d at 586. The Seventh Circuit, reviewing the denial of a preliminary injunction, held that the statute was “likely unconstitutional.” Id. at 608. The court explained that “[t]he act of making an audio or audiovisual recording is necessarily included within the First Amendment‘s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording.” Id. at 595. And because the statute “interferes with the gathering and dissemination of information about government officials performing their duties in public. . . the eavesdropping statute burdens speech and press rights and is subject to heightened First Amendment scrutiny.” Id. at 600.
v. Fields v. City of Phila., 862 F.3d 353 (3d Cir. 2017)
Fields was a consolidated appeal involving two incidents in which police interfered with the appellants’ ability to record the police. In the first incident, the appellant was trying to film an arrest during a protest when “[a]n officer abruptly pushed [her] and pinned her against a pillar for one to three minutes, which prevented her from observing or recording the arrest.” Fields, 862 F.3d at 356. In the second, the appellant took a photograph of the police breaking up a house party, and an officer ultimately “arrested him, confiscated his phone, and detained him.” Id.
The Third Circuit joined the “growing consensus” of circuit courts holding that “there is a First Amendment right to record police activity in public” subject to reasonable time, place, and manner restrictions. Id. at 355-56, 360. The court explained that “[t]he First Amendment protects actual photos, videos, and recordings, . . . and for this protection to have meaning the Amendment must also protect the act of creating that material.” Id. at 358 (citation omitted). Thus, the court concluded that “under the First Amendment‘s right of access to information the public has the commensurate right to record—photograph, film, or audio record—police officers conducting official police activity in public areas.” Id. at 360.
vi. Turner v. Lieutenant Driver, 848 F.3d 678 (5th Cir. 2017)
Mr. Turner videotaped a police station from a public sidewalk across the street. Turner, 848 F.3d at 683. Two officers approached
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Based on First Amendment principles and relevant precedents, we conclude there is a First Amendment right to film the police performing their duties in public.10
2. Injury That Would Chill Protected Activity
Mr. Irizarry adequately alleged that Officer Yehia‘s actions caused him “to suffer an injury that would chill a person of ordinary firmness from continuing to” film the traffic stop. Worrell, 219 F.3d at 1212 (quotations omitted). As to this second element of the Worrell test, “our standard for evaluating th[e] chilling effect on speech is objective, rather than subjective.” Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007) (quotations omitted). Physical and verbal intimidation can chill speech. Van Deelen v. Johnson is instructive. See Van Deelen, 497 F.3d at 1157-58.
In Van Deelen, the plaintiff brought several tax appeals challenging property tax assessments. Id. at 1153-54. At a meeting between the plaintiff and government tax appraisers, a sheriff‘s deputy “repeatedly and intentionally ‘bumped’ [the plaintiff].” Id. at 1154. The plaintiff also alleged that the deputy “held his hand on his gun and made menacing looks” during the meeting and that another county official “brow beat” the plaintiff “by scowling and staring” at him. Id. Finally, at the end of the meeting, the deputy told the plaintiff that county officials had instructed the deputy “to do whatever necessary to put a scare into you. If you show up for another tax appeal hearing, I might have to shoot you.” Id. (quotations omitted). We held that such “physical and verbal intimidation . . . surely suffice[s] under our precedents to chill a person of ordinary firmness from continuing to seek redress for (allegedly) unfair property tax assessments.” Id. at 1157.
Officer Yehia‘s actions would chill a person of ordinary firmness from continuing to film the traffic stop for two reasons.
First, Mr. Irizarry suffered an injury when Officer Yehia stood in front of his camera and shined a flashlight into it, making it difficult if not impossible to continue recording a potentially critical moment
Second, Officer Yehia did more than threaten violence, as the defendants did in Van Deelen. See Van Deelen, 497 F.3d at 1157. He directed violence towards Mr. Irizarry by driving his police cruiser “right at” him and by “gunn[ing]” it at his nearby colleague, Mr. Brandt.11 App. at 10 ¶¶ 20-21; see United States v. Garcia, 34 F.3d 6, 13 (1st Cir. 1994) (aiming car at an individual created a substantial risk of bodily injury). These actions would be more than sufficient to chill a person of ordinary firmness from continuing to film the traffic stop.
Thus, given the allegations in the complaint, Mr. Irizarry has satisfied the second element of the Worrell test.
3. Protected Activity Substantially Motivated Adverse Action
To satisfy the third element of Worrell, Mr. Irizarry needed to allege that Officer Yehia‘s actions were “substantially motivated as a response to [Mr. Irizarry‘s] exercise of constitutionally protected conduct.” Worrell, 219 F.3d at 1213 (quotations omitted). He did so by alleging that Officer Yehia drove to the scene of the traffic stop in response to officers already there advising him that “four males had arrived on [the] scene and were [] recording their D.U.I. traffic stop.” App. at 9 ¶ 12. From this, it is reasonable to infer that Officer Yehia came to the scene because Mr. Irizarry was recording the encounter. And because Officer Yehia‘s physical interference with the filming and his driving the cruiser at Mr. Irizarry served no legitimate law enforcement purpose,12 it is reasonable to infer that Mr. Irizarry‘s filming substantially motivated those actions.
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Mr. Irizarry has plausibly alleged that Officer Yehia committed a constitutional violation by retaliating against him for engaging in protected First Amendment activity. He has therefore satisfied prong one of qualified immunity.
B. Prong Two—Clearly Established Law
Mr. Irizarry also has shown that Officer Yehia violated his clearly established right to be free from retaliation for filming the police performing their public duties.
1. Clearly Established Law
“A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (quotations omitted). “The law is clearly established when a Supreme Court or Tenth Circuit precedent is on point or the alleged right is clearly established from case law in other circuits.” Lowe v. Raemisch, 864 F.3d 1205, 1208 (10th Cir. 2017). Thus, even without Supreme Court or Tenth Circuit precedent, persuasive authority from other circuits may clearly establish the law in this circuit when that authority would have put a reasonable officer on notice that his or her conduct was unconstitutional. See Ullery v. Bradley, 949 F.3d 1282, 1291-92 (10th Cir. 2020) (law was clearly established based on the consensus of persuasive authority from six other circuits); Anaya v. Crossroads Managed Care Sys., Inc., 195 F.3d 584, 595 (10th Cir. 1999) (same).
To determine whether the law is clearly established, the relevant “precedent is considered on point if it involves materially similar conduct or applies with obvious clarity to the conduct at issue.” Lowe, 864 F.3d at 1208 (quotations omitted). Thus, “[g]eneral statements of the law can clearly establish a right for qualified immunity purposes if they apply with obvious clarity to the specific conduct in question.” Halley v. Huckaby, 902 F.3d 1136, 1149 (10th Cir. 2018) (quotations omitted); see White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam). “When the public official‘s conduct is egregious, even a general precedent would apply with obvious clarity.” Lowe, 864 F.3d at 1210.
2. Analysis
To overcome qualified immunity here, Mr. Irizarry must show that when the incident occurred, it was clearly established that (1) he was exercising a First Amendment right to film the police performing their duties in public, (2) Officer Yehia‘s actions would chill a person of ordinary firmness from continuing to film the traffic stop, and (3) Mr. Irizarry‘s protected activity motivated Officer Yehia‘s actions. See Van Deelen, 497 F.3d at 1159.
In May 2019, when the incident occurred, Mr. Irizarry had a clearly established right to film the traffic stop based on the persuasive weight of authority from six other circuits and our decision in Western Watersheds. Officer Yehia‘s obvious interference with that right, motivated by Mr. Irizarry‘s protected conduct, was a violation of clearly established law.
a. Clearly established that Mr. Irizarry was engaged in protected activity
i. Clearly established First Amendment right to film the police
Although neither the Supreme Court nor the Tenth Circuit has recognized a First Amendment right to record the police performing their duties in public, we hold that the right was clearly established here based on the persuasive authority from six other circuits, which places the constitutional question “beyond debate.” Cummings v. Dean, 913 F.3d 1227, 1239 (10th Cir. 2019) (quotations omitted). Our opinion in Western Watersheds also supports this conclusion.
As we said in Ullery, “In the absence of binding precedent specifically adjudicating the right at issue, the right may still be clearly established based on a ‘consensus of cases of persuasive authority’ from other jurisdictions.” Ullery, 949 F.3d at 1294 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). And the weight of authority from other circuits may clearly establish the law when at least six other circuits have recognized the right at issue. See, e.g., id. (the constitutional question was “beyond debate” where six other circuits agreed on the issue and there was not “a single decision . . . shedding doubt on” the issue); Robbins v. Wilkie, 433 F.3d 755, 770 (10th Cir. 2006) rev‘d and remanded on other grounds, 551 U.S. 537 (2007); Anaya, 195 F.3d at 595. In this case, our source of clearly established law comes largely from other circuits.
As discussed, the First, Third, Fifth, Seventh, Ninth, and Eleventh Circuits have all concluded in published opinions that the First Amendment protects a right to film the police performing their duties in public. Four of those opinions—Fordyce, Glik, Fields, and Turner—involved facts materially similar to those here: the plaintiffs,
Moreover, in Western Watersheds, we indicated, without reservation, that filming the police performing their duties in public is protected under the First Amendment. W. Watersheds, 869 F.3d at 1196 (“An individual who photographs animals or takes notes about habitat conditions is creating speech in the same manner as an individual who records a police encounter.“). Although this statement, on its own, may be insufficient to satisfy prong two of qualified immunity, it supports the conclusion that a reasonable officer would have known there was a First Amendment right to film the police performing their duties in public.
Finally, Mr. Irizarry‘s right to film the police falls squarely within the First Amendment‘s core purposes to protect free and robust discussion of public affairs, hold government officials accountable, and check abuse of power.14 We have no doubt that Mr. Irizarry had a clearly established First Amendment right to film the traffic stop in May 2019.
ii. Officer Yehia‘s arguments
Officer Yehia argues that the right to film police officers performing their duties in public cannot be clearly established unless a previous Tenth Circuit case has already recognized the right. But we have repeatedly stated that “the weight of authority from other courts can clearly establish a right.” E.g., A.N. by & through Ponder v. Syling, 928 F.3d 1191, 1197 (10th Cir. 2019) (quotations omitted). And we have held that decisions from other circuits clearly established the law when at least six circuits had recognized the right at issue. See, e.g., Ullery, 949 F.3d at 1300-01; Anaya, 195 F.3d at 595.
Officer Yehia also argues that Frasier v. Evans, shows that the right to film police officers performing their duties in public was not clearly established as of May 2019. We disagree. In Frasier, the plaintiff filmed police officers arresting a suspect in 2014. Frasier, 992 F.3d at 1010. After the arrest, officers allegedly intimidated the plaintiff and threatened to arrest him if he did not hand the video over to them. Id. at 1010-11. The plaintiff brought a
We held the officers were entitled to qualified immunity because, when the incident occurred on August 14, 2014, the law was not clearly established that the First Amendment protected a right to record police officers performing their official duties in public. Id. at 1020. We rejected the plaintiff‘s argument that “general First
Frasier does not undercut our clearly-established-law analysis for two reasons.
First, the legal landscape has changed since August 2014 when the incident in Frasier occurred. Between August 2014 and May 2019, the Third and Fifth Circuits joined the four other circuits in concluding there is a First Amendment right to film the police performing their duties in public. See Fields, 862 F.3d at 360; Turner, 848 F.3d at 690. And, as noted above, we have held that the weight of authority from other circuits may clearly establish the law when at least six other circuits have recognized the right at issue. See, e.g., Ullery, 949 F.3d at 1294.
Second, when analyzing whether the weight of authority from other circuits clearly establishes the law in this circuit, we have said the relevant inquiry is whether there is consensus regarding the existence of the constitutional right at issue. See id. at 1300 (concluding that the weight of authority from other circuits clearly established the law where “persuasive out-of-circuit authority addressing the constitutional right in question was not divided or otherwise unclear” (emphasis added)). Courts determine whether a constitutional right exists and whether it has been violated from holdings made at the first step of qualified immunity. See, e.g., Ashaheed v. Currington, 7 F.4th 1236, 1245 (10th Cir. 2021) (citing Shrum v. City of Coweta, 449 F.3d 1132, 1139-44 (10th Cir. 2006)).
As of May 2019, six circuits had determined that the First Amendment guarantees a right to film the police performing their duties in public. No other circuit has concluded otherwise. The substantial weight of this authority, along with our decision in Western Watersheds, would have put a reasonable officer in Officer Yehia‘s position on notice that Mr. Irizarry had a right to film the police conducting the traffic stop.
b. Clearly established that Officer Yehia caused injuries sufficient to chill a person of ordinary firmness from continuing to film the traffic stop
It also was clearly established that Officer Yehia caused injuries sufficient to chill a person of ordinary firmness from filming the traffic stop. As of May 2019, a reasonable officer would have known that physically interfering with and intimidating an individual who was filming a DUI traffic stop can chill First Amendment activity. Officer Yehia‘s conduct
(i) infringed Mr. Irizarry‘s First Amendment right with obvious clarity.
Also, his conduct was at least as egregious as police conduct found unconstitutional in
(ii) our sibling-circuit cases and
(iii) this circuit‘s Van Deelen opinion.
i. Obvious clarity
In Worrell we described the objective retaliation element as actions causing injury that would chill a person of ordinary firmness from continuing to engage in protected activity. Although this is a general statement of the law, it can supply clearly
ii. Sibling circuits
The filming cases from other circuits lend strong support because the retaliating conduct here was at least as egregious as it was in those cases. The First, Third, and Fifth Circuits held that officers committed constitutional violations when they arrested or detained plaintiffs for filming the police performing their duties in public. See Turner, 848 F.3d at 683-84; Fields, 862 F.3d at 356;15 Glik, 655 F.3d at 80. And the Ninth Circuit has indicated that “attempt[ing] physically to dissuade” a citizen from recording the police would violate the First Amendment. Fordyce, 55 F.3d at 438. The police interference with protected activity in those cases caused a chilling effect that is materially the same as that caused by the injury here. Driving his car at Mr. Irizarry was at least as egregious as arresting an individual or physically interfering with filming in the other circuit cases. Apart from the obvious infringing conduct here, the relevant out-of-circuit cases would put an officer on notice that attempting to deter an individual from filming the police through physical interference and threats causes injury sufficient to chill the speech of a person of ordinary firmness.
iii. Van Deelen
Our opinion in Van Deelen also helps Mr. Irizarry to overcome qualified immunity. There, a sheriff‘s deputy threatened to use lethal force against the plaintiff if he brought more tax appeals, and the deputy physically “bump[ed]” the plaintiff during a meeting. Van Deelen, 497 F.3d at 1154. Other county officials “scowl[ed]” and “star[ed]” at the plaintiff. Id. We held the defendants who made the alleged threats were not entitled to qualified immunity because, as of 2005, it was “unremarkabl[e]” that “a reasonable government official should have clearly understood . . . that physical and verbal intimidation intended to deter a citizen” from engaging in protected First Amendment activity violates that citizen‘s constitutional rights. Id. at 1159.
Officer Yehia‘s conduct was at least as serious as the defendants’ conduct in Van Deelen for two reasons. First, rather than merely discouraging Mr. Irizarry from engaging in protected First Amendment activity—as the defendants did in Van Deelen—Officer Yehia physically interfered with protected conduct by standing in front of Mr. Irizarry and shining a flashlight into his camera. App. at 10 ¶¶ 14, 17. Second, Officer Yehia went beyond threatening violence against Mr. Irizarry. When he drove his police cruiser “right at” him and “gunn[ed]” the vehicle at his colleague, he could have caused serious injury or even death. Id. at 10 ¶¶ 20-21; see Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1315 (10th Cir. 2009) (acknowledging that an officer‘s vehicle can inflict serious bodily
c. Officer Yehia‘s motivation for retaliation
As explained in our prong one qualified immunity discussion, Mr. Irizarry has plausibly alleged the three elements of a First Amendment retaliation constitutional tort, including the subjective element that his protected activity motivated Officer Yehia‘s conduct. Because Mr. Irizarry has shown that a reasonable officer would know that this conduct would chill a person of ordinary firmness from continuing to engage in protected activity, it follows that a reasonable officer also would know that Officer Yehia committed a First Amendment retaliation violation when Mr. Irizarry‘s protected activity motivated Officer Yehia‘s actions.
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Thus, as to all three elements of First Amendment retaliation, Mr. Irizarry has shown a violation of clearly established law. Officer Yehia is not entitled to qualified immunity.
III. CONCLUSION
We reverse and remand for further proceedings consistent with this opinion.
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