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Qualified Immunity and the First Amendment Right to Record Police

50 Pages Posted: 18 Jan 2013 Last revised: 15 Oct 2013

Geoffrey J. Derrick

Federal Defenders of San Diego, Inc.; American Civil Liberties Union

Date Written: September 9, 2013

Abstract

This draft article explores Pearson v. Callahan, 129 S. Ct. 808 (2009), in the context of recent nationwide litigation over the First Amendment right to record police officers in public. Pearson v. Callahan gives judges considering a qualified immunity defense to a civil rights lawsuit the discretion to never reach the merits of the lawsuit, deciding only that the right is not “clearly established.” 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.

The doctrinal shift from Saucier to Pearson coincides with an increase in civil rights litigation nationwide concerning the First Amendment right to record police officers in public. Two recent Circuit Court cases, Am. Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012) cert. denied, 133 S. Ct. 651 (U.S. 2012), and Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), have affirmed such a right. While the First and Seventh Circuits have laudably addressed the merits of whether the right exists, all other circuits to address the issue have decided only on immunity grounds, i.e. whether the right is “clearly established.” The focus on immunity has a chilling effect on free speech, in particular the role of citizens to oversee law enforcement officials. The article calls for a return to Saucier's merits-first adjudicatory model in First Amendment civil rights cases to avoid chilling such protected speech.

Keywords: Qualified Immunity, First Amendment, Recording Police

Suggested Citation

Derrick, Geoffrey J., Qualified Immunity and the First Amendment Right to Record Police (September 9, 2013). 22 B.U. Pub. Int. L.J. 243 (2013). Available at SSRN: https://ssrn.com/abstract=2202388

Geoffrey J. Derrick (Contact Author)

American Civil Liberties Union ( email )

125 Broad Street
New York, NY 10004
United States

HOME PAGE: http://www.aclu.org/religion/index.html

Federal Defenders of San Diego, Inc. ( email )

225 Broadway
Ste. 900
San Diego, CA 92101
United States

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