In July 2017, the Third Circuit Court of Appeals held that a police officer violated Amanda Geraci’s First Amendment rights by pinning her against a pillar to prevent her from recording the arrest of an antifracking protestor outside the Philadelphia Convention Center.
That conduct constituted illegal retaliation against the exercise of a constitutional right to record police activity in public.
The court reached the same conclusion about the Philadelphia police officers who arrested Rick Fields for filming the breakup of a Temple University house party.
Yet the police officers in both cases were immune from liability. According to the court, the right to record, although constitutionally protected, was not “clearly established” at the time of the incidents, at least not within the Third Circuit.
The Fields court acknowledged that it joined a “growing consensus”
by following the First,
Circuits in recognizing a constitutional right to record the police. Cellphone videos have become a regular feature of public life in the United States. Recordings of police misconduct occupy a place of particular importance in the national conversation on criminal justice, from the beating of Rodney King in 1991,
to the suffocation of Eric Garner in 2014.
The proliferation of citizen recording has lent legitimacy to the activity, which is now recognized by the federal government and local police departments alike.
The Supreme Court has yet to rule on the issue. But every federal appellate court to address the constitutional question has concluded that the First Amendment protects the right of citizens to document the police.
Yet within those circuits that have remained silent on the matter, trial courts continue to hold that the right is not “clearly established,” thereby entitling law enforcement defendants to qualified immunity.
Qualified immunity is a defense to civil rights suits that insulates government officials from damages liability unless they violate “clearly established statutory or constitutional rights of which a reasonable person would have known.”
The Supreme Court promotes an expansive view of qualified immunity protection, imposing a high bar for showing that conduct violates clearly established law. Prior case law must define the established right with sufficient particularity, and that definition must correspond to the facts of the case at hand.
But the Court’s qualified immunity jurisprudence provides lower courts with scant guidance on a central component of the analysis: the proper sources of “clearly established law.”
In response to the uneven jurisprudence on this issue, lower courts tend to resort to a restrictive definition of clearly established law that requires a controlling precedent, either from the Supreme Court, the court of appeals in that circuit, or the highest court of the state where the violation took place.
The inquiry focuses exclusively on binding case law, without interrogating other sources that might educate a reasonable person on prevailing norms of constitutional rights.
This approach evokes formalism by promoting a predictable bright-line rule at whiwhile giving little weight to the underlying objectives of qualified immunity.
As applied to the First Amendment right to record police, this formalist approach to qualified immunity doctrine has produced an “artificial” circuit split.
In six circuits, law enforcement defendants can be held to account for interference with citizen recorders. Everywhere else in the country, police are immune from liability. Despite the near-nationwide agreement on the merits of the right, courts generally refuse to look beyond controlling decisions to determine whether the right is clearly established. Yet the Supreme Court has never commanded federal courts to limit the geographical scope of their analysis. Doctrinally, this restrictive definition of clearly established law strays from the underlying purpose of qualified immunity: providing fair warning to public officials about the state of the law.
In practice, qualified immunity formalism impedes the development of First Amendment jurisprudence and deters valuable social activity.
This Note critiques the formalism of qualified immunity doctrine in the context of the First Amendment right to record public police activity. Part I describes the relevant legal background, beginning with the definition of “clearly established law” and then examining its application to the right to record police activity. Part II assesses the prevailing qualified immunity framework in light of the contemporary legal status of the right to record. Lastly, Part III proposes a more functional approach to qualified immunity, in which a “robust consensus of persuasive authority” suffices to establish federal rights.
I. Qualified Immunity, Clearly Established Law, and the Right to Record
When a public official asserts a qualified immunity defense, courts engage in a two-part inquiry, asking (1) whether the facts alleged by the plaintiff make out a violation of a constitutional right, and (2) whether, at the time of the defendant’s alleged misconduct, the right at issue was clearly established such that a reasonable person would have known of it.
Courts need not conduct their analysis in that order.
The Supreme Court has encouraged courts to begin on the second prong to avoid expending judicial resources on constitutional questions that are effectively advisory.
In practice, such discretionary sequencing allows courts to dispose of cases on the question of clearly established law without engaging with the merits of the right.
This Part describes qualified immunity doctrine, in general and as applied to the right to record police activity. Section I.A canvasses the Supreme Court’s definitions of clearly established law and the various applications of this precedent by the courts of appeals. Section I.B examines the application of qualified immunity to the right to record police, addressing both prongs of the analysis: the question of clearly established law and the merits of the constitutional right.
A. Defining “Clearly Established Law”
The Supreme Court established the baseline for evaluating qualified immunity in Harlow v. Fitzgerald: Government officials are immune from liability “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
The standard of clearly established law represents an objective proxy for reasonable behavior.
Given the continual evolution of the law, public officials cannot reasonably be expected to anticipate legal developments and should not be held accountable for conduct previously identified as lawful.
The clearly established standard ensures that officers are subject to liability only when the law provides “‘fair and clear warning’ of what the Constitution requires.”
This section describes the Supreme Court’s exposition of this standard and the interpretation of that precedent by the courts of appeals.
1. The Supreme Court’s View. — The Supreme Court promotes a robust conception of qualified immunity
in which it is very difficult to show that conduct violates clearly established law.
The message from the Court is clear: Qualified immunity should be difficult to overcome.
Yet precedent provides little practical guidance to lower courts on how to define clearly established law.
Harlow expressly declined to determine whether “the state of the law” should be evaluated by reference to Supreme Court opinions, or those of the relevant courts of appeals or district courts.
More than thirty-six years later, the Court has yet to decide which types of authority are relevant to the analysis. It remains unclear, for example, whether a Supreme Court ruling is necessary to clearly establish a right or whether other controlling precedent suffices.
In its qualified immunity jurisprudence, the Court has cited various bodies of law, leaving it to lower courts to determine whether those sources are appropriate for their own cases.
As a result, the doctrine remains ambiguous with respect to the nature of authority required to find a clearly established right.
In lieu of specific guidance, the Court has broadly asserted that “existing precedent” should place the constitutional question “beyond debate.”
Jurisprudence on the effect of contrary authority is unambiguous: Public officials are not subject to liability for picking the wrong side of an ongoing debate on a constitutional question.
In other words, a circuit split all but guarantees qualified immunity.
The Court has repeatedly intimated that controlling precedent is not necessary to clearly establish a right. Invariably in the context of granting immunity, the Court has invoked the possibility that a consensus of persuasive authority may clearly establish a federal right.
The Court has never, however, applied the consensus standard nor held a right to be clearly established by persuasive authority alone.
In its recent qualified immunity cases, the Supreme Court has concentrated little attention on the relevant sources of law, instead focusing its holdings on the specificity with which the right must be defined.
The specificity requirement is grounded in the principle of fair warning that underlies all qualified immunity. The invoked right must be defined with sufficient clarity so that a reasonable official would understand that what she is doing violates that right.
The Court has spoken forcefully against broadly defined rights.
On the other hand, the Court has stated that the facts of a previous case need not be “materially similar” to the situation at hand.
Although the precise action in question need not have previously been proved unlawful, preexisting law must clearly demonstrate the unlawfulness of that action.
Reconciling the Court’s ambiguous pronouncements on specificity presents difficulties for lower courts.
The degree to which the specific facts of the violation need to match existing precedent remains unclear. Nonetheless, the Court has followed a distinct trend toward greater specificity in recent years, reversing several denials of qualified immunity for relying on prior precedent that established constitutional principles at a high level of generality.
The Court has been decidedly less clear about which sources of law should be relevant to the inquiry.
2. Circuit Court Approaches to Clearly Established Law. — Circuit courts differ markedly in their definitions of clearly established law.
The inconsistencies that mar the Supreme Court’s qualified immunity jurisprudence have trickled down to the circuit level. The inconsistencies tend to benefit defendants. In response to the Supreme Court’s broad view of qualified immunity, circuit courts ordinarily impose a rigorous standard for clearly established law.
This tendency manifests itself in a restricted view of applicable sources of law.
Circuit courts differ as to which bodies of law are relevant to the clearly established analysis. As a general rule, courts look first to binding case law from the Supreme Court or their own circuit.
When controlling authority is not dispositive, the circuit courts diverge in their approaches.
No court of appeals has articulated a cogent definition of clearly established law that it applies consistently.
In many circuits, different panels have announced conflicting approaches without acknowledging any deviation from precedent.
No federal appellate court has expressly prohibited courts in its jurisdiction from considering the decisions of sister circuits. Each acknowledges, if only as a possibility, that a consensus of cases of persuasive authority can clearly establish a right.
The biggest commonality among circuit court definitions of clearly established law may be irregularity in the approach to the question. In practice, courts err on the side of granting qualified immunity, often through a formalist conception of relevant law.
B. The Application of Qualified Immunity to the Right to Record Police Activity
Legal challenges involving citizen recording of police activity have tracked the growth of smartphone use.
Yet the Supreme Court has declined to address the constitutionality of the activity. In 2012, the Court denied a petition for certiorari
to determine “[w]hether the First Amendment guarantees the right of a non-participant to audio record a public conversation between a police officer and a civilian, where no party has consented to such a recording.”
The silence of the Supreme Court has forced lower courts to determine whether the right is clearly established within their own jurisdictions. This section surveys the application of both prongs of qualified immunity analysis—the merits of the right and whether it is clearly established—to the right to record police activity. Section I.B.1 identifies the divergent approaches of circuit courts to defining clearly established law in this context. The subsequent section examines appellate decisions on the merits of the constitutional question, which have uniformly held that citizen recording deserves First Amendment protection.
1. Clearly Established Law and the Right to Record. — Inconsistency in the definition of clearly established law has colored the treatment by federal appellate courts of the right to record police. Panels that have addressed the right have taken different approaches to the question, notably in terms of the bodies of law considered in the analysis.
In Szymecki v. Houck, the Fourth Circuit affirmed summary judgment for defendants on qualified immunity grounds.
Without discussing the facts of the case or canvassing the relevant law within the Fourth Circuit, the court held that the right to record police activities on public property was not clearly established in the circuit at the time of the alleged conduct.
The court declined to look beyond controlling precedent, noting that the recognition of the right in another circuit would not ordinarily defeat a qualified immunity defense.
Because neither the Supreme Court nor the Fourth Circuit had ruled on the issue, the question was easily dispensed with.
The court opted not to address the constitutional merits of the right. Although unpublished and nonprecedential, the decision has been cited as standing for the proposition that the right to record is not clearly established within the Fourth Circuit.
The First Circuit took the opposite approach in Glik v. Cunniffe, relying on general First Amendment precedent to find that the right to film police officers in a public space was clearly established at the time of the violation.
Glik is the only federal appellate case to find that the right to record was clearly established prior to the issuance of a controlling opinion in that circuit.
Notably, the court did not base its conclusion solely on the analysis of Supreme Court principles. It relied in part on a prior First Circuit holding that an officer who arrested a journalist for refusing to stop filming a public meeting lacked the authority to impede the exercise of a First Amendment right.
The court also pointed to authority from the Ninth and Eleventh Circuits to support the proposition that the right was self-evident, thus providing the defendants with fair warning that their conduct was unconstitutional.
Relative to the approach of its sister circuits, Glik is an outlier: The case made liberal use of persuasive precedent and defined the right at a high level of generality in order to incorporate Supreme Court jurisprudence.
The Third and Fifth Circuits adopted a more moderate approach. Each found that the right was not clearly established at the time of the violations.
Yet both courts opted to engage with the merits of the right and ultimately found that it was protected by the First Amendment. Looking principally at controlling precedent, both asked whether the contours of the right to film police were so clearly established that a reasonable official would understand that what she is doing violates that right.
The Fifth Circuit recognized that “a robust consensus of persuasive authority . . . that defines the contours of the right in question with a high degree of particularity” may theoretically suffice to clearly establish a right.
Existing authority, however, had not placed the question beyond debate.
The Third Circuit reached the same conclusion, downplaying the relevance of Philadelphia Police Department policy that recognized the right of citizens to record police in public.
Effectively, both courts would require a controlling precedent that specifically extends First Amendment protection to the recording of police.
2. The Constitutional Merits on the Right to Record. — With regard to the constitutional question—the other prong of qualified immunity analysis—each and every federal appellate court that has addressed the merits of the right to record police has concluded that the activity is protected under the First Amendment. Those decisions agree on the scope of the constitutional protection of citizen recording, which encompasses the open recording of police engaged in official activities in public places. Taken together, the cases form a strong consensus on the constitutional merits of the right to record. This section outlines that consensus.
Reconciling citizen recording with existing free speech jurisprudence is not intuitive. Capturing video may represent an intrinsic precursor to speech or a form of speech itself.
Courts have taken a variety of approaches in their application of free speech doctrine to an emergent social context. Citizen recording implicates a number of the traditional justifications for First Amendment protection: conduct incident to speech,
the right to gather information of public interest,
and expressive conduct.
The major federal appellate decisions on the merits of the right to record have engaged in lengthy discussion to tie the right to record to one or more of the existing strains of free speech jurisprudence. The First Circuit decided the first major case on the subject, Glik v. Cunniffe,
in 2011, although the Ninth and Eleventh Circuits summarily recognized the right years earlier.
Glik declared that the right to film police during an arrest was so obviously protected by the First Amendment that it was clearly established.
According to the court, the right was encompassed in the protections afforded to conduct related to the gathering of information as well as the right to criticize public officials.
In 2012, the Seventh Circuit held that the application of an Illinois eavesdropping statute to the ACLU’s police accountability program—which involved the open recording of police officers in public places—directly burdened First Amendment rights.
Per the court, the right to make an audiovisual recording fell under the First Amendment’s guarantee of speech and press rights, as a corollary to the established rights to disseminate that recording and to gather information about government affairs.
No other circuit court addressed the merits of the right to record police until February 2017. In Turner v. Lieutenant Driver, the Fifth Circuit found that the right to film a police station fit comfortably within basic First Amendment principles, namely the protection of the free discussion of government affairs and the right to receive information and ideas.
A few months later, the Third Circuit in Fields focused on the narrow question of whether recording police activity requires “expressive intent” to fall under First Amendment protection.
Clarifying that the Constitution protects recording without regard to the intent of that conduct, the Third Circuit joined a “growing consensus” in declaring that “the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public.”
There is little contrary authority on the subject.
Only the Fourth Circuit has directly addressed the right to record without ruling on the merits, concluding that it was not clearly established in that jurisdiction.
The Second Circuit has “yet to weigh in” on the subject.
The Sixth, Eighth, Tenth, and D.C. Circuits have apparently not yet evaluated the constitutionality of recording police.
II. Collateral Consequences of the Prevailing Approach to Qualified Immunity
The prevailing approach to qualified immunity makes it very difficult for plaintiffs to show that conduct violates clearly established law. In practice, a right is not clearly established unless controlling precedent defines that right at a high level of factual specificity.
Limiting the sources of law in this manner makes for a restrictive and formalist assessment.
Seldom does a court engage with the question of whether a reasonable person would have known of the right at issue. Courts instead rely on the mechanical analysis of controlling precedent as a proxy for legally reasonable behavior.
On the one hand, this approach accords with the Supreme Court’s view that qualified immunity provides expansive protection.
On the other hand, the narrow view of relevant precedent makes the search for clearly established law increasingly unlikely to succeed, rendering qualified immunity “nearly absolute” and placing a heavy thumb on the scale in favor of government interests.
Ultimately, the formalist approach to clearly established law upsets the balance that qualified immunity is supposed to create between the vindication of constitutional rights and the insulation of public officials from insubstantial lawsuits.
The application of qualified immunity to citizen recording of police brings this imbalance into stark relief.
This Part critiques the formalist definition of clearly established law in the context of the First Amendment right to record police. Section II.A evaluates the application of clearly established law analysis to right-to-record cases in light of the policy considerations that undergird qualified immunity doctrine. Section II.B demonstrates that the restrictive view of clearly established law has manufactured an “artificial” circuit split that threatens to impede the development of First Amendment jurisprudence. Lastly, sections II.C and II.D discuss the social consequences of qualified immunity in this area, explaining how the doctrine prevents the vindication of meritorious First Amendment claims and deters private citizens from engaging in socially desirable conduct.
A. Policy Implications of Applying Qualified Immunity to the Right to Record
Qualified immunity is a judicially made defense, the contours of which are largely shaped by “policy considerations.”
It serves to quickly terminate insubstantial lawsuits against public officials and protect officials from the burdens of litigation regarding unclear doctrine.
The purpose of the defense is to protect good-faith mistakes of law by public officials.
Qualified immunity is meant to give state actors “breathing room to make reasonable but mistaken judgments about open legal questions.”
The lodestar of qualified immunity is notice or fair warning.
Requiring clarity in the establishment of the allegedly violated right allows officials to reasonably anticipate when their conduct may give rise to liability.
That requirement ensures that state actors are on notice that their conduct is unlawful before they are subjected to suit.
This section describes how the application of qualified immunity to the right to record deviates from these fair-warning principles. Section II.A.1 contends that the current state of the law provides public officials with more than sufficient notice about the constitutionality of interfering with citizen recorders. The subsequent section explains how the formalist definition of clearly established law fails to account for that notice.
1. The Current State of the Law and Fair Warning. — Recent decisions on the right to document police officers attest to a growing judicial consensus that such behavior merits First Amendment protection.
This issue has reached appellate courts in multiple circuits because large numbers of citizens have filed suit alleging the violation of their right to record. The quantity of litigation implies that the public perceives the right as well established. Yet federal courts continue to conclude that the right is not clearly established whenever there is no directly controlling precedent in that jurisdiction.
This approach deviates from the notice principle articulated in Harlow.
In asking whether a right is clearly established, courts are really asking whether the government official ought to have known about that right.
The underlying concern is whether the state of the law provides defendants with fair warning about the constitutionality of their behavior. Preexisting law should make the unlawfulness of particular conduct so apparent that reasonable officials could not disagree on the issue.
Given the weight of judicial authority on the subject, it is arguably unreasonable to believe that preventing a citizen from filming police activity is lawful. There is no legal debate about the constitutional merits of the right.
In addition to the guidance provided by appellate courts, federal and local policies alike have coalesced around the recognition of the right to record.
In May 2012, the Department of Justice issued a recommendation to all police departments to affirmatively set forth the First Amendment right to record police activity.
Multiple settlements between the Obama Administration and police departments included provisions to protect the right to record police: New Orleans, Louisiana; East Haven, Connecticut; Ferguson, Missouri; and Newark, New Jersey.
The Obama Justice Department filed statements of interest in at least two right-to-record cases, indicating that “[t]he First Amendment protects the rights of private citizens to record police officers during the public discharge of their duties.”
Law enforcement organizations themselves have stated that the recording of police does not by itself establish legal grounds for arrest or other actions to restrict such recordings.
Those statements are consistent with official police policy in municipalities throughout the country, such as St. Louis, Missouri; New York, New York; Baltimore, Maryland; Montgomery County, Maryland; and Philadelphia, Pennsylvania, among others.
This combination of policy and judicial authority provides fair warning that the recording of public police conduct is lawful. Conversely, a number of courts have found that the right to record is not clearly established.
Such rulings arguably send conflicting messages to police officers. Yet a case that is silent on the merits of the right should not qualify as contrary authority. Decisions grounded in qualified immunity merely indicate to officials that there is an increased possibility of immunity from suit; they say nothing about the lawfulness of potential conduct and therefore should not be treated as precedential. The existence of such decisions does not meaningfully interfere with the notice to police officers and should not warrant immunity.
2. The Limitations of the Formalist Approach. — By fixating on controlling case law at the expense of all other authority, the prevailing approach fails to ask the crucial question of qualified immunity: whether a reasonable officer would have known that her behavior was unlawful. The presumption that public officials are aware of ongoing developments in constitutional law is well recognized as a legal fiction.
This fiction is valuable insofar as it creates incentives for officials to keep up with legal developments in order to stay on the right side of the law.
In practice, however, the legal education of police officers likely derives from formal training and policy directives, or the advice of counsel.
The formalist analysis ignores the influence of these materials, as well as that of persuasive judicial authority.
The restrictive approach to clearly established law produces perverse results. Its application to the right to record is a prime example. Granting qualified immunity because no prior case has held sufficiently similar conduct to be unconstitutional is defensible on fair-warning grounds. Immunizing a government official because no prior case in that jurisdiction has held similar conduct to be unconstitutional is less defensible. Judicial silence should not be accorded the same weight as contrary authority. A right is clearly established when “a reasonable person in a defendant’s position should know about the constitutionality of the conduct.”
Confining the analysis to controlling precedent arbitrarily limits the scope of that inquiry. As a result, police officers in six circuits have impunity to retaliate against citizen recorders for conduct that is evidently constitutional. Qualified immunity exists to protect reasonable mistakes, not knowingly illegal conduct.
B. The Artificial Circuit Split
Trial courts continue to dismiss right-to-record suits on qualified immunity grounds in incipient jurisdictions.
Despite the recognition of the right by six circuits, lower courts decline to find it clearly established by the weight of persuasive authority.
Most maintain that directly controlling authority is required to defeat a qualified immunity defense. Of those that acknowledge the potential role of persuasive authority in clearly establishing law, many improperly treat qualified immunity decisions as contrary authority. As a result, police officers who arrest or harass those seeking to record their official conduct continue to evade liability in those jurisdictions.
Qualified immunity has produced an artificial circuit split over the right to record police activity in public places.
Police officers in Baltimore are held to a different constitutional standard than their counterparts a hundred miles away in Philadelphia — not because of substantive disagreement over the First Amendment but because of the application of qualified immunity doctrine. The split did not arise because of local differences in the assessment of constitutional protection but rather because the Third Circuit opted to address the merits of the issue while the Fourth Circuit did not.
Under the approach restricting clearly established law to controlling precedent, this split will persist until each of the remaining circuit courts of appeals individually recognizes the right to record as clearly established.
This section analyzes the effects of the artificial split on the development of jurisprudence and how the misapprehension of contrary authority exacerbates those effects.
1. The Role of Qualified Immunity in Constitutional Development. — In theory, qualified immunity promotes the development of constitutional rights because it requires courts to decide whether an asserted right is cognizable under the Constitution.
The two-step procedure—deciding the merits of the constitutional right as well as the question of whether that right is clearly established—is “especially valuable” for the development of rights that “do not frequently arise in cases in which a qualified immunity defense is unavailable.”
The discretion to dodge the constitutional question if the right is not clearly established leads courts to dispose of cases without ruling on the merits.
While the practice promotes judicial economy, it impedes the role of qualified immunity as a mechanism for the development of constitutional law.
In the context of the right to record, there is considerable room for development: clarifying the meaning of reasonable time, manner, and place restrictions; determining what degree of civilian interference with police activity is permissible; and deciding to what degree the right extends to nonpublic fora.
If courts in incipient jurisdictions wait for courts of appeals, state supreme courts, or the U.S. Supreme Court to rule, the law may remain unsettled for many years, leaving “standards of official conduct permanently in limbo”
—and preventing plaintiffs with meritorious claims from vindicating their rights.
Because of discretionary sequencing,
qualified immunity has the perverse effect of preventing rights from becoming clearly established. The result is unsettled law, insulation from liability, and a stagnant jurisprudence that provides little guidance on the scope of constitutional rights.
The right to record police exemplifies this pathology.
By opting to address the merits, the 2017 cases from the Third and Fifth Circuits, Fields v. City of Philadelphia
and Turner v. Lieutenant Driver,
were outliers in this respect.
The Turner court grounded its merits-first approach in the unique importance of the right, which “continues to arise in the qualified immunity context.”
In Szymecki, the Fourth Circuit adopted the opposite method, leaving the constitutional question unsettled within that jurisdiction.
The Second Circuit took a third approach, disposing of a First Amendment retaliation claim on other grounds and declining to address whether police officers were entitled to qualified immunity for arresting a citizen recorder.
Trial judges in incipient jurisdictions typically opt not to reach the merits of the issue.
The preference for constitutional avoidance creates a negative feedback loop: When a court dismisses a case on qualified immunity grounds without deciding the underlying question of substantive law, the next time the same conduct occurs, the officer will once again be immune from suit because a court has never established the governing law.
2. The Misapplication of Contrary Authority. — Qualified immunity’s ossification of the law is exacerbated by the tendency to treat decisions decided on clearly established law grounds as evidence of a circuit split. Even when courts do consider persuasive authority in their analysis, they often treat qualified immunity rulings as contrary authority. A substantive circuit split provides dispositive evidence that the law is unsettled and therefore not clearly established.
Finding contrary authority is thus outcome determinative in most qualified immunity cases.
For example, in Mesa v. City of New York,
a Southern District of New York court concluded that the right to document police misconduct was not clearly established in the Second Circuit at the time of the violation in question. Acknowledging that several courts of appeals had recognized the right, the court agreed that citizen recording of police “fits comfortably” within First Amendment principles.
However, the court then cited decisions from the Third and Fourth Circuits to claim that “other circuits have decided just the opposite, declining to extend First Amendment protections to the recording of police activity.”
Yet neither of the cited decisions had reached the merits of the constitutional question.
Both were decided exclusively on the clearly established prong.
Mesa is not an outlier. District courts across the country have adopted a similar approach, insisting that there is “a circuit split on the issue”
because of qualified immunity decisions that are silent on the underlying constitutional question.
Another Southern District of New York court held that the existence of a “considerable debate” among the circuit courts over the scope of the right was sufficient to demonstrate that the right was not clearly established.
Equating clearly established law rulings with contrary precedent on the merits of the constitutional question conflates the two prongs of qualified immunity analysis. Such cases purposefully avoided the constitutional issue, holding only that the right was not clearly established in the specific factual context before the court.
Because such holdings are irrelevant to determining whether there is a consensus on the existence of a constitutional right, they lack relevant precedential value. In other words, Szymecki does not stand for the proposition that the Fourth Circuit does not recognize the right to record, but only that such a right “was not clearly established in the Fourth Circuit as of sometime prior to 2009.”
Treating such cases as evidence of a circuit split turns qualified immunity into a self-fulfilling prophecy: If the right was not clearly established by another court in an analogous factual situation, it cannot be so held by a future court operating in a different jurisdiction and time. This reading fails to account for subsequent developments in the law.
Szymecki is a case in point. Since that unpublished decision in 2009, the legal landscape has changed dramatically: Four circuits have recognized the constitutional right to record,
and the federal government has issued guidance acknowledging the right to record police.
Yet as recently as 2018, Szymecki was cited as contrary authority.
The misapprehension of contrary authority threatens to perpetuate the artificial circuit split, until the Supreme Court rules on the issue.
3. The Supreme Court Is Not Likely to Address the Issue. — There is no judicial dispute on the merits of the right to record as that concept is typically understood in qualified immunity analysis.
The only “dispute” concerns whether the right is clearly established. Because there is no circuit split on the merits, the Supreme Court is not likely to weigh in on the question. Seventy percent of the Supreme Court docket addresses legal questions over which lower courts have differed, demonstrating that uniformity is a central consideration in case selection.
In 2012, the Court denied certiorari on this very question.
Unless a genuine circuit split emerges, it is unlikely that the Supreme Court will resolve the constitutionality of the right to record anytime soon.
C. Qualified Immunity Doctrine Impedes Vindication of the Right to Record
Qualified immunity, in addition to stunting jurisprudential development, may impede the remediation of constitutional rights. Doctrinally, qualified immunity applies only to a specific subset of cases, namely suits for damages against public officials acting in their individual capacities.
Although municipalities are subject to § 1983 under the Monell doctrine,
they cannot invoke the defense. Nor does it apply to suits for injunctive or declaratory relief.
In the case of the right to record police, however, money damages are often the only adequate form of relief. Defendants are therefore able to invoke the defense in almost all cases. This section analyzes how qualified immunity stands as a particular impediment to remedying violations of the right to record police. Section II.C.1 describes the nexus between the right to record and § 1983, and the following sections explain why alternate forms of relief generally are unavailable to plaintiffs in this context.
1. The Importance of § 1983 Claims to First Amendment Retaliation. — The vast majority of right-to-record causes of action stem from the conduct of individual police officers. To a lesser degree, they may implicate the pattern or practice of a particular law enforcement agency. Retaliatory arrests are more frequently justified under the pretext of catchall statutes—disorderly conduct, loitering, disturbing the peace—than state wiretapping or privacy laws.
These discretionary charges are easily used to curtail speech or retaliate against individuals for exercising First Amendment rights.
Right-to-record cases typically seek a remedy for a particular instance of rights deprivation, rather than relief from a burdensome piece of legislation. Legislative challenges, an avenue traditionally available for the vindication of constitutional rights, are less suited to this context.
The principal remedy for the unreasonable application of facially valid laws is § 1983, in which the qualified immunity defense generally applies.
2. Monell Liability Is Not a Useful Vehicle for Retaliation Against Citizen Recorders. — Municipalities, although subject to liability under § 1983, are barred from raising qualified immunity as a defense.
Under Monell, a municipality is vicariously liable for the conduct of persons for whom it is responsible only if the plaintiff’s injury is the result of a municipal policy, custom, or practice.
Whether or not the right violated by the municipal policy was clearly established is irrelevant.
Nor does dismissal of claims against individual police officers on qualified immunity grounds preclude municipal liability for the same violation.
Monell does not provide a separate cause of action but rather “extends liability to a municipal organization where that organization’s failure to train, or the policies or customs that it has sanctioned, led to an independent constitutional violation.”
Generally speaking, contemporary municipal policies on citizen recording of police activity are facially supportive of the First Amendment right.
Succeeding on a Monell claim, therefore, would likely require a plaintiff to demonstrate that a police department violated its own policy. That is a high bar to clear. A plaintiff must demonstrate that a municipality failed to act in the face of a pattern of misconduct, compelling the conclusion that it acquiesced to the unlawful actions of its subordinates.
Failure to train employees in a relevant respect must amount to “deliberate indifference” to the rights of persons with whom the untrained employees come into contact.
A pattern of similar constitutional violations is ordinarily necessary to demonstrate such indifference.
In the context of retaliation against individual recorders, it may be difficult for a plaintiff to demonstrate the numerous instances of unconstitutional conduct necessary to establish a custom or practice.
3. The Unavailability of Injunctive Relief. — Qualified immunity is not available in suits against individuals in their official capacities when the remedy is limited to injunctive relief.
However, injunctions in the § 1983 context are difficult to obtain due to the standing requirements that the Supreme Court established in City of Los Angeles v. Lyons: A plaintiff must demonstrate “remedial standing”—not just standing to bring a lawsuit but standing to pursue each specific remedy.
For an injunction, a plaintiff must demonstrate that she will be subject again to the challenged conduct.
The Court found that Lyons failed to allege that a “uniform City practice or policy” of chokeholds violated his rights.
The same obstacle applies, if not with greater force, to citizen recorders alleging retaliation. Unlike the chokehold—a discrete practice that can be directly prohibited—restrictions on the right to record are often justified by pretextual arrests under discretionary statutes.
In other cases, police may simply prevent citizens from recording, either through physical means or by demanding that the recorder leave the scene.
It would therefore be difficult to fashion an effective injunction against retaliation.
Law enforcement resistance to civilian filming typically happens on an ad hoc basis, ranging from commands for bystanders to stop filming to arrests of individuals for interference with police work.
Because injunctive relief and Monell liability are generally not available, money damages represent the best—albeit imperfect
—remedy for vindicating this particular right. As the Supreme Court concluded about instances of individual abuse of office, “[A]n action for damages may offer the only realistic avenue for vindication of constitutional guarantees.”
Qualified immunity therefore stands as an obstacle to citizen recorders seeking redress. To vindicate the right—and to guarantee the court reaches the constitutional issue—a plaintiff must show that the challenged conduct violates clearly established law.
D. The Unsettled Nature of the Right to Record Police Chills Socially Valuable Activity
In the First Amendment context, qualified immunity decisions have the potential to directly influence citizen behavior. Unlike the Fourth Amendment protection against unreasonable search and seizure or the Eighth Amendment prohibition of cruel and unusual punishment—the rights implicated in the vast majority of qualified immunity decisions
—First Amendment jurisprudence governs the conduct of private citizens. Because of qualified immunity doctrine, the current legal framework sends a mixed message to potential civilian recorders: Although the right is protected under the First Amendment, there is no remedy for a violation. Absent legal guarantees, those seeking to document police activity run the risk of being arrested, even when the act of recording does not interfere with law enforcement duties.
The threat of arrest presents a potent deterrent, especially to spontaneous recorders who may “have no deep commitment to capturing any particular image.”
Deterring citizen recorders is troublesome because the documentation of police conduct serves a number of social goals. Recording furthers the interest in promoting constitutional policing, as documented interactions with police carry greater accuracy and legitimacy than testimonial evidence.
Cellphone videos have both exposed police misconduct and exonerated officers from wrongful charges.
Citizen recording contrasts with the use of police body cameras, which can be turned off or forgotten to be turned on.
Given the ubiquity of recording devices in the contemporary United States and the growing prevalence of civilian cop-watch organizations, it is perhaps no surprise that cases of police retaliation against citizen recorders arise frequently.
There is little reason to believe that citizen recorders will cease to bring legal claims, forcing courts to grapple with qualified immunity.
Qualified immunity is meant to discourage the filing of insubstantial cases,
not to discourage the filing of meritorious cases, and certainly not to discourage private citizens from engaging in constitutionally protected behavior. In doing so here, the defense is not performing the proper function assigned to it by the Supreme Court.
III. Framework for a Less Restrictive Approach: A Robust Consensus of Persuasive Authority
The proposition that the First Amendment protects the right of citizens to record police activity now enjoys a strong judicial consensus.
In more than half of U.S. states, federal courts have clearly established the right to record, allowing citizen recorders to pursue legal remedies when that right is violated. In the other half of the country, however, qualified immunity doctrine effectively precludes vindication of the right.
Without an effective remedy, the right to record exists in a state of legal limbo. Yet any public official should know that interfering with citizen recording violates the Constitution, given the state of the law on the issue.
Sufficient notice cannot be defined by jurisdictional boundaries. Granting qualified immunity in this context is no longer justified by the fair-warning principles that undergird the defense. In applying qualified immunity to the right to record, courts have misinterpreted precedent and, as a result, struck the wrong balance between fairness and accountability for law enforcement officers.
The weight of existing authority has settled the constitutional question, arguably beyond debate.
As a result, lower courts would find the right clearly established were they to consider the weight of persuasive authority. Instead of waiting for controlling precedent that may never come, federal courts should apply an oft-cited but rarely used approach to qualified immunity: A robust
consensus of cases of persuasive authority may clearly establish a constitutional right.
The unanimity among six courts of appeals on the right to record, coupled with the absence of contrary authority, constitutes the robust consensus necessary to clearly establish law.
This Part argues that broadening the sources of law that can clearly establish rights—moving from an analysis limited to controlling precedent to one that considers the weight of persuasive authority—would better align qualified immunity doctrine with the policy considerations underlying the defense. Section III.A proposes a definition of “robust consensus” and applies it to the right to record police activity. Section III.B contends that this solution is both legally feasible and normatively desirable, addressing potential counterarguments to a more expansive definition of clearly established law.
A. A New Framework of Clearly Established Law
Principles of fair warning should guide the robust-consensus analysis. Courts should begin by canvassing controlling precedent, as is common practice now. When binding authority is silent on the issue at hand, courts should look to persuasive authority to determine whether a consensus view provides fair warning to officials about the lawfulness of their conduct. This section outlines a definition of robust consensus based on the existing jurisprudence on the subject and then applies that analysis to the right to record.
1. The Precedent of Robust Consensus. — The Supreme Court has never provided a definition of a robust consensus of cases of persuasive authority. The Court’s treatment of the concept is cursory, in dicta, and styled as a counterfactual. In Wilson v. Layne, the Court granted qualified immunity because the plaintiff failed to identify “a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful.”
Justice Scalia’s majority opinion in Ashcroft v. al-Kidd added the qualifier “robust” to the consensus of cases that was theoretically necessary to establish a right in the absence of controlling precedent.
The Court’s most recent discussion of the subject suggests that it remains an open question whether such a consensus suffices to overcome a qualified immunity claim.
In none of these opinions did the Court offer a rationale for its caveats or acknowledge that it may have been departing from precedent.
Although a number of lower courts have determined rights to be clearly established on the basis of persuasive authority,
no circuit has elaborated a formal test to determine when such authority is sufficient to clearly establish law. The Second Circuit at times will consider out-of-circuit precedent if those decisions foreshadow a particular ruling on the issue by a future court.
Similarly, some panels of the Seventh Circuit look to whether the trend in the case law is sufficiently clear to assure the court that a recognition of the right by controlling precedent is “merely a question of time.”
Perhaps the most extensive recent analysis of robust consensus comes from the Fourth Circuit in Booker v. South Carolina Department of Corrections.
The Booker court noted that seven circuit courts had recognized the right at issue in published decisions, remarking on the consistency in their holdings. Unanimity among those circuit courts that had confronted the issue demonstrated that the constitutional question was “beyond debate,” supporting a conclusion that the right was clearly established.
2. Defining “Robust Consensus.” — Federal courts have not elaborated on the meaning of robust consensus. This Note fills that gap by proposing a definition of robust consensus grounded in the bedrock principle of qualified immunity: The state of the law must provide clear notice to public officials about the constitutional limits of their behavior. Notice manifests itself in a number of ways. First, circuit court decisions must be sufficiently consistent to foreshadow a similar ruling by a future court. Second, rulings must be unanimous on the existence and general scope of the right in question. Third, jurisprudence must have developed to such an extent that it constitutes a consensus. In sum, the body of persuasive authority must justify the conclusion that no reasonable public official would believe that her actions are lawful, regardless of the jurisdiction in which she finds herself. These principles form the basis of the operational definition of a “robust consensus of persuasive authority.”
As a threshold matter, the expansion of the analysis beyond controlling precedent requires a delineation of what bodies of law constitute relevant persuasive authority. The Supreme Court has not taken a consistent position on this issue but has suggested that decisions from the courts of appeals may be a dispositive source of clearly established law.
Circuit courts that discuss the robust consensus have more clearly indicated that the universe of relevant decisional law centers on federal appellate cases.
Courts should look primarily to precedential decisions by courts of appeals, with other case law playing a lesser role.
Consensus means general agreement.
When applied to persuasive authority, the threshold marker of consensus is unanimity on the merits of the right in question. Substantive uniformity exists when the contours of a particular right can be gleaned from a review of the relevant holdings: when “various courts have agreed that certain conduct is a constitutional violation under facts not distinguishable in a fair way from the facts presented in the case at hand.”
On the other hand, a consensus cannot exist when sources of law conflict. Any contrary authority by a higher court—whether a federal or state appellate court—should be dispositive. A strict unanimity requirement is consistent with the Supreme Court’s broad conception of qualified immunity.
Nonetheless, courts must be careful to distinguish between cases that engage with the substance of the right and those decided on qualified immunity grounds. Prior decisions that merely held that the right in question was not clearly established should have no relevance in the robust-consensus analysis.
The body of persuasive authority should sufficiently clarify the scope of the right. Taken together, circuit court decisions must make the unlawfulness of conduct apparent to the extent that a reasonable official understands that what she is doing violates that right.
Introducing persuasive authority to the definition of clearly established law would not interfere with existing jurisprudence on the particularity with which rights need be defined. Courts should look to the agreed-upon contours of the right that emanate from prior decisions to determine whether the constitutional rule applies with clarity to the specific conduct in question.
The only change wrought by the robust-consensus approach would be to broaden the scope of the analysis from one line of controlling precedent to the decisions of multiple courts.
The next inquiry concerns the weight of authority: when a consensus becomes sufficiently “robust” to render a right clearly established. By definition, consensus requires more than the decision of a single court. While judges should be mindful that a sufficient number of courts have ruled on the issue, a rigid mathematical formula would be inherently arbitrary.
Courts should look to the trends of appellate decisions. The emergence of a discernable tendency may put public officials on notice of their potential liability. Consistent movement in one direction would foreshadow the recognition of the right by other courts yet to address the precise issue. This approach would prevent outlier cases from gaining national significance. Courts would have to evaluate the context to determine when an emerging trend matures into a robust consensus. Ultimately, that decision must be made case by case, based on whether the body of decisional law provides sufficient clarity about the legal status of the right in question. That analysis should consider the number of cases, the depth of analysis conducted in those cases, and the particular detail with which the challenged right was described.
In line with the guiding principle of fair warning, courts should adopt the perspective of a reasonable official and consider decisional law in a real-world context.
The analysis of persuasive authority may—and perhaps should—extend to other relevant sources of law such as internal policies and statutory or administrative provisions.
These sources, which may well be informed by developments in constitutional law, exert a more direct influence on the behavior of a public official than appellate decisions.
Alone, administrative provisions cannot defeat qualified immunity.
Nonetheless, when relevant, they should be examined in conjunction with prevailing circuit law to determine whether defendants were on notice about the legality of their behavior.
Consideration of such sources would help the court determine whether there was actual ambiguity about the boundaries of the plaintiff’s constitutional rights, from the perspective of a reasonable official in the position of the defendant.
In certain circumstances—such as the right to record police officers—the broader context in which the case arose may help the court address whether a defendant should have known that her behavior was unconstitutional.
The robust-consensus approach provides a coherent alternative to the restrictive focus on controlling precedent. The consideration of persuasive authority would permit courts in incipient jurisdictions to meaningfully engage with the clearly established question. Although lacking the simplicity of the formalist approach, “robust consensus” can be defined with sufficient precision to guide lower courts. Courts may draw on objective indicia of such a consensus: uniformity in substance, weight of existing authority, and support from statutory and administrative sources. These factors are substantially similar to the principles that animate the few courts that have looked to persuasive authority. The test provides guidelines for the court to determine the underlying question of qualified immunity: whether the state of the law provided fair warning to public officials.
3. Applying the Robust Consensus to the Right to Record. — The current state of the law on the right to record provides a prime example of a robust consensus. Six circuit courts have determined that First Amendment protection extends to civilian recorders. No higher court has ruled otherwise. Recent appellate decisions indicate a consistent tendency toward recognition of the right. Since the First Circuit decided Glik v. Cunniffe in 2011, three other circuits have aligned themselves with that position.
Each successive court has drawn from existing precedent. The Fields court expressly acknowledged that its decision joined a “growing consensus,” citing the five circuit decisions that preceded it.
The judicial consensus accords with administrative authority in many police departments and the recognition of the right by the federal government.
Each case involved an in-depth discussion of the constitutional merits, placing the right to record into the general context of free speech jurisprudence.
The scope of the right can be gleaned by reference to the narrowest holding common to these six decisions. The right involves four elements: (1) the open recording
(2) of officers who are performing public duties
(3) in public places, (4) where the manner of recording is otherwise lawful.
Each case involved the filming of police officers while they were engaged in police work.
Recording has uniformly taken place in a traditional public place: on the street
or in a city park.
Whether and to what degree the right extends to other types of spaces to which the public has access, such as police stations, courtrooms, or government buildings, remains an open question.
Determining whether the manner of recording is otherwise lawful will likely present the greatest difficulties in future litigation. As with the right to engage in other activity protected by the First Amendment,
the right to record is not absolute but “subject to reasonable time, place, and manner restrictions.”
Police officers and legislators may have legitimate reasons for restricting the act of filming, namely to promote public safety.
Courts have yet to explore the permissibility of those limitations to the recording of police.
In that context, courts will have to determine the degree to which restrictions on citizen recording are required in order to allow police officers to carry out their responsibilities effectively.
The reasonableness of restrictions is especially relevant as filming often involves “provocative behavior” that inevitably irritates police officers.
B. The Legal and Practical Effects of the Robust-Consensus Approach
Application of the robust-consensus proposal would effect a number of normatively desirable results. A more searching analysis of notice would promote greater accountability for officials who knowingly violate constitutional rights. Expanding the analysis of clearly established law would also help promote the development of constitutional law in light of the obstacles created by discretionary sequencing.
In sum, the positive effects would extend to the two principal functions of federal courts: dispute resolution and law declaration.
Introducing persuasive authority into the clearly established law analysis would be a positive step toward reconciling extant qualified immunity doctrine with the policy justifications for the defense. By removing the implicit restriction to controlling precedent, courts would be able to conduct a more meaningful inquiry into whether the defendant had sufficient notice about the contours of the right, without requiring additional discovery or any inquiry into the knowledge of any individual defendant. The mere absence of controlling authority holding identical conduct unlawful should not guarantee qualified immunity.
The defense was not meant to protect the discretion to act in illegal ways.
The introduction of persuasive authority would align judicial analysis with the perspective of a reasonable official and permit courts to determine legal ambiguity from a real-world context.
Expanding the clearly established analysis to encompass persuasive authority would also encourage the development of constitutional law. Courts tend to avoid reaching the merits of the constitutional question when a right is not clearly established in that jurisdiction.
A more functional approach to clearly established law would increase the rate at which courts address the constitutional merits of the cases that come before them. More engagement with rights would promote the further development of the contours of those rights. In the context of citizen recording, removing the obstacles that qualified immunity places in the way of constitutional development would help courts to better calibrate the balance between free speech and the countervailing interests of privacy and public safety.
The robust-consensus approach would promote consistency in constitutional interpretation nationwide, preventing the emergence of artificial circuit splits.
Incipient jurisdictions would be able to draw from out-of-circuit precedent without having to wait for their own circuit courts to issue opinions. Federalism advocates may argue that geographical differences in constitutional interpretation reflect the diversity of the nation.
In the same vein, Justice Kennedy has warned that “too expansive a view of ‘clearly established law’ would risk giving local judicial determinations . . . de facto national significance.”
That concern is alleviated by the weight-of-authority requirement. A clear trend must be discerned in order to qualify as a robust consensus. Furthermore, the change in the view of clearly established law in no way jeopardizes the ability of circuit courts to adopt different interpretations of the Constitution. Recognizing persuasive authority simply prevents courts from treating silence by the controlling circuit as equivalent to a dissenting opinion.
By broadening the bodies of law that can clearly establish rights, this proposal potentially exposes public officials to greater liability or, at a minimum, increased litigation. Such a result would run counter to a steady trend of Supreme Court cases that strengthen qualified immunity protections.
Recent cases send a signal to lower courts that they should err on the side of immunity.
However, those decisions hinged on the particularity with which relevant precedents defined the right.
The question of which courts can create clearly established law has not occupied the Supreme Court’s attention. The robust-consensus approach does not affect the particularity analysis about which the Court has signaled such concern. Only when the body of persuasive authority defines a right with sufficient particularity can a right be deemed clearly established. As a result, the robust-consensus approach will not jeopardize the role of qualified immunity in sorting frivolous from meritorious suits at an early stage. The expanded definition of clearly established law does not interfere with qualified immunity’s protection of public officials from insubstantial lawsuits.
Nor will consideration of out-of-circuit precedent effect a sea change in qualified immunity analysis.
The proposal does not require intervention by the legislature or much innovation by courts. Lower courts at both the appellate and trial level would be able to consider persuasive authority in their definitions of clearly established rights without deviating from existing precedent. The robust-consensus proposal does not change the foundations of qualified immunity analysis, nor affect the trans-substantive nature of the doctrine by asking courts to conduct a special analysis for First Amendment cases.
Doctrinally, the robust-consensus approach is universally applicable. In practice, however, persuasive authority will clearly establish law only in rare instances. The standard remains exacting. Rare are cases when every circuit court that chooses to address the merits of a right reaches the same conclusion.
The right to record police constitutes a unique instance of applying long-held principles to an emerging medium and social context.
Consequently, those courts that have addressed the issue have reached the same result, producing a robust consensus.
This Note proposes a move away from qualified immunity formalism in order to preserve the substance of qualified immunity. The consideration of persuasive authority would allow courts to make commonsense determinations of whether the state of the law provided fair warning to an official about the constitutionality of her conduct. A broader conception of clearly established law would encourage the development of constitutional law and prevent qualified immunity from manufacturing artificial circuit splits on the substance of constitutional rights.
The right of citizens to record police is a paradigmatic example of the need for a robust-consensus approach. Given the weight of authority on the subject, the conclusion that citizen recording is anything but a clearly established right of which a reasonable official would have known defies common sense. Yet current qualified immunity doctrine effectively forces such a conclusion. Courts should look beyond binding precedent, embrace the robust consensus of persuasive authority, and recognize the right to record police. If the state of the law on this right does not constitute a robust consensus, then that phrase is mere dicta, devoid of any meaning.