DENVER–In August 2014, Levi Frasier filmed Denver police officers using force against a suspect during an arrest for an alleged drug deal. The officers punched the accused six times in the face, and when a woman approached the scene screaming, a different officer clutched her ankle, tossing her to the ground—all captured on film.
After the arrest, the officers surrounded Frasier, searched his tablet without a warrant, and attempted to delete the resulting video. In doing so, a federal appeals court in March acknowledged that the officers violated the First Amendment, with the judges noting that the city’s police training had taught the officers as much: There’s a constitutional right to record government agents making a public arrest.
The same court ruled that the officers are protected by qualified immunity, the legal doctrine that shields state actors from civil suits unless a previous court precedent outlines a case with almost exactly the same factual circumstances.
Known as the “clearly established law” test, that standard is supposed to protect public officials from shallow litigation. In reality, it often allows the government to skirt responsibility for alleged misconduct, no matter how blatant. Consider police who allegedly stole $225,000 while executing a search warrant, or officers who assaulted and arrested a man for standing outside of his own house, or the cop who shot a 10-year-old child. All were given qualified immunity—not because their conduct wasn’t unconscionable, but because pre-existing case law didn’t expressly say so.
That standard is alive and well here. “[T]he district court was wrong to deny the officers qualified immunity based on their knowledge of Mr. Frasier’s purported First Amendment rights that they gained from their training,” wrote Judge Jerome A. Holmes of the U.S. Court of Appeals for the 10th Circuit. “Judicial decisions are the only valid interpretive source of the content of clearly established law; whatever training the officers received concerning the First Amendment was irrelevant to the clearly-established-law inquiry.”
In other words: Although the officers knew their behavior was unlawful, the public cannot hold them accountable because, in the eyes of qualified immunity, they weren’t equipped with that knowledge in the right way. A court precedent is the only avenue in which a public servant can appropriately and unquestionably know what conduct violates someone’s rights, wrote Holmes.
Frasier also brought a civil conspiracy claim against the officers, who again sought protection under qualified immunity. The district court denied them that request. The 10th Circuit reversed.
“Because we have concluded that the officers are entitled to qualified immunity on Mr. Frasier’s First Amendment retaliation claim based on the absence of clearly established law,” the court said, “it necessarily follows that they also are entitled to qualified immunity on his conspiracy claim insofar as it alleges a conspiracy to retaliate against him in violation of the same First Amendment right.”
The Supreme Court has notoriously been unwilling to conduct a wholesale reevaluation of qualified immunity. In fact, the Court specifically demurred at the opportunity to review every qualified immunity case mentioned above.
It’s a rich refusal considering that the Court itself breathed qualified immunity into existence. Though it is not the job of nine justices to legislate for the country, that’s precisely what they did in creating the first iteration of the legal doctrine in Pierson v. Ray (1967), refining it to its current application—that “clearly established” part—as outlined in Harlow v. Fitzgerald (1982).
In its current session, however, the Supreme Court has been willing to send subtler messages to lower courts about just how rigorous a standard qualified immunity should be. In November, the justices reversed the ruling in Taylor v. Riojas (2020), in which the U.S Court of Appeals for the 5th Circuit awarded qualified immunity to a group of prison guards who forced a naked psychiatric-unit inmate into two filthy cells, one lined with “massive amounts” of human feces and the other with raw sewage overflowing from a clogged floor drain. The Court did the same last month when it ordered the 5th Circuit to reconsider a decision in which they gave qualified immunity to a correctional officer who pepper-sprayed an inmate without provocation.
Holmes recognized this trend, tipping his hat to the recent decision in Taylor. As with any guidance from the high court, he conceded that it should be his lodestar. And yet such guidance still isn’t enough in this case, he concluded.
“Mr. Frasier’s attempt to distill a clearly established right applicable here from the general First Amendment principles protecting the creation of speech and the gathering of news,” the judge said, “runs headfirst into the Supreme Court’s prohibition against defining clearly established rights at a high level of generality.”
version of this article first appeared.is an assistant editor at Reason, where a
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