Qualified Immunity and the First Amendment Right to Record Police

Abstract:     
Two Circuits have recently affirmed the First Amendment right to record police officers in public. Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012), cert. denied, 133 S. Ct. 651 (2012); Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011). These decisions arose in the context of a civil rights lawsuit brought by citizens arrested or threatened with arrest for recording the police where the defendant government officials raised a qualified immunity defense. Pearson v. Callahan, 129 S. Ct. 808 (2009), gives judges considering such a defense the discretion to never reach the merits of the plaintiff’s claim, deciding only that the right a plaintiff asserts that a government actor violated was not “clearly established” in their Circuit at the time of the alleged violation.

The Court’s opinion in Pearson uprooted Saucier v. Katz, 533 U.S. 194 (2001), which required courts to address the merits before deciding whether a defendant is entitled to qualified immunity because the right was not “clearly established” in their Circuit. While two Circuits laudably addressed the merits of whether the First Amendment right to record police officers exists, judges in all other Circuits have avoided the merits and held that the right was not “clearly established” in their Circuit. This article recommends a return to Saucier’s mandatory sequencing of the qualified immunity analysis in First Amendment cases because immunity findings in those cases, without a consideration of the merits, chill protected speech by leaving the First Amendment right in permanent limbo.

Number of Pages in PDF File: 59

Keywords: Qualified Immunity, First Amendment, Recording Police

Accepted Paper Series