QUALIFIED KNOWLEDGE: THE CASE FOR CONSIDERING ACTUAL KNOWLEDGE IN QUALIFIED IMMUNITY JURISPRUDENCE AS IT RELATES TO THE FIRST AMENDMENT RIGHT TO RECORD.

• Author: LaForge, Carly

TABLE OF CONTENTS INTRODUCTION 852 I. A. QUALIFIED HISTORY OF THE QUALIFIED IMMUNITY DOCTRINE 855 II. QUALIFIED IMMUNITY IN CONTEXT: THE RIGHT OF PRIVATE CITIZENS TO FILM POLICE ACTIVITY 861 A. Circuit Perspectives on the Clearly Established Notice Question 862 1. Lack of Controlling Authority Within the Jurisdiction 862 2. Lack of Persuasive Authority 864 3. Public Policy Concerns 866 III. Is ACTUAL KNOWLEDGE IRRELEVANT? 867 A. Qualified Immunity: An Objective Standard 869 B. Clearly Established Limits: Prior Judicial Decisions 873 C. Answering the Actual Knowledge Question: A Proposed Solution 875 IV. QUESTIONING ACTUAL KNOWLEDGE 876 A. Policy Considerations 877 B. Countenancing Counterarguments 880 CONCLUSION 882 INTRODUCTION

In the summer of 2020, the entire world watched Minneapolis police officer Derek Chauvin kneel on an unarmed Black man's neck for nine minutes and twenty-nine seconds. (1) Chauvin's victim, George Floyd, died as a result. (2) The final moments of his life were captured by a seventeen-year-old bystander with a cell phone, and that video has since been viewed millions of times by people across the country and around the globe. (3)

George Floyd's story should be exceptional, but unfortunately, police brutality is all too common in America. Since 2015, The Washington Post has reported around 1,000 fatal shootings by on-duty police officers every year. (4) As cell phone and social media use has grown more prevalent, more and more of these deadly encounters have become known to the general public. (5) In turn, the American judiciary has entered into uncharted territory: cell phone footage can be valuable trial evidence. (6) At Chauvin's 2021 murder trial, for example, the prosecution played the recorded video of George Floyd's death for the jury as the focal point of their case against the former police officer. (7) It seems unlikely that such footage will lose its value in the future, and as a result, courts will have to continue to settle issues related to recorded police interactions. (8)

A majority of circuit courts have found that the First Amendment right to freedom of the press does not only protect the press. Instead, the right likely extends to freelance citizens as well, subject to reasonable time, place, and manner restrictions. (9) This means that private citizens, acting as news couriers in their own right, have a constitutionally protected freedom to record and publish police interactions so that the general public can access and assess the information. (10) However, in the real world, many police officers have not responded favorably when filmed. In fact, in many situations, the officers involved have resorted to violence or arrested the filming individuals on criminal charges. (11)

At trial, officers prosecuted for this kind of retaliatory conduct tend to invoke the doctrine of qualified immunity as an affirmative defense. (12) Because "[t]he specific contours of the right" to record police interactions "have not been clearly established enough to provide blanket protection to all individuals" in most cases involving the arrest of filming individuals, the defense has been successful. (13) This is because to be immune to a lawsuit under the doctrine of qualified immunity, all a prosecuted officer needs to prove is that the right to record police at the time of the incident in question did "not violate clearly established statutory or constitutional rights of which a reasonable person would have known." (14)

Unfortunately for private citizens, whether the First Amendment right to film police is clearly established enough to defeat an officer's defense of qualified immunity is a hotly contested topic. Certain judges have argued that, when comparing similar cases, the level of generality should be narrowly construed--in other words, the cases should be compared at a high level of specificity. (15) From this perspective, qualified immunity generally ought to be upheld because there are few to no prior on-point cases that would notify a reasonable officer about the right. (16) Meanwhile, other judges have advocated for using a broader level of generality when comparing similar cases--analyzing common themes rather than specific events. (17) Proponents argue that through this lens, typically there is enough on-point precedent for a reasonable officer to know that the right to film police activity is clearly established even if the specific factual circumstances involved vary from case to case. (18)

The Tenth Circuit's recent decision in Frasier [upsilon]. Evans exemplifies one particular way that this already-complex debate has grown even more complicated. Frasier and similar decisions in other circuits have allowed officers--who have been taught as part of their official police training that citizens have a First Amendment right to record police--to still enjoy qualified immunity protection. (19) The appellate court in Frasier found that the right to record public police interactions was not clearly established within the Tenth Circuit in August 2014 when the incident at issue occurred. (20) Therefore, the court stated that any training that the officer personally received to the contrary was largely irrelevant for the purposes of a successful qualified immunity defense even if that training was conducted by the municipality where the incident at issue occurred. (21)

This Note argues that this particular finding of the Frasier court is both pragmatically and philosophically problematic. By design, the qualified immunity doctrine seeks to shield police officers from civil rights lawsuits. However, prioritizing assumed knowledge over actual knowledge in determining what qualifies as a clearly established constitutional right harms the citizens that law enforcement officers have sworn to protect and serve. While traditional delineations of clearly established rights have involved appeals to precedent, public policy concerns are also important considerations in the qualified immunity analysis. (22) In this way, Frasier is especially concerning in that it prioritizes the total defense of police officers over the deterrence of civil rights violations. Only Supreme Court intervention can rectify this particular problem. Namely, the Court should reverse the Tenth Circuit's Frasier judgment and similar judgments in other circuits and find that officers who knowingly violate the constitutional right of private citizens to record public police interactions are not entitled to qualified immunity.

This Note proceeds in Part I with a historical outline of the qualified immunity doctrine for law enforcement officers. Part II then evaluates how courts have applied the qualified immunity doctrine in cases concerning arrests of private citizens for filming police activities. Part III outlines Frasier v. Evans and offers a new standard for incorporating actual knowledge into the existing qualified immunity analysis. Finally, Part IV addresses related policy implications and responds to potential counterarguments.

1. A QUALIFIED HISTORY OF THE QUALIFIED IMMUNITY DOCTRINE

   Before exploring how the qualified immunity doctrine has been applied in First Amendment retaliation cases regarding the right to record public police activity, this Note briefly addresses the historical roots and general development of the doctrine. In 1974, the Supreme Court first found that qualified immunity to civil suits existed for officers of the executive branch, including law enforcement agents. (23) The Court in Scheuer v. Rhodes justified this immunity--all the while emphasizing that it was not meant to be absolute--in two main ways. To begin with, the Court stressed that when officers exercise discretion in good faith in accordance with the legal obligations of their position, holding them liable for mistakes is unjust. (24) The Court further emphasized that, for public policy reasons, the threat of a civil lawsuit against police should not be so broad as to overdeter officers from effectively performing the duties of their position "with the decisiveness and the judgment required by the public good." (25)

   As time went on, the search for good faith on the part of police officers involved in civil rights litigation became too burdensome for the judicial system to execute well. (26) Such inquiries required extensive (and expensive) discovery as well as investigations into the officer's subjective mindset that many courts regarded as inherently requiring jury resolution. (27) Given these procedural challenges, eight years after the Scheuer decision, the Supreme Court eliminated the good faith requirement in the groundbreaking case of Harlow [upsilon]. Fitzgerald. (28) This decision was largely justified by the fact that the good faith standard undermined the goals of qualified immunity by exposing all officers exercising their discretion and good judgment "to the costs of trial [and] to the burdens of broad-reaching discovery." (29) In its place, the Harlow Court implemented a new normal: law enforcement officers would be "shielded from liability" as long "as their conduct d[id] not violate clearly established statutory or constitutional rights of which a reasonable person would have known." (30) This objective test was designed to allow presiding judges to determine at the outset whether a civil rights case involving an officer should proceed to trial or end quickly on summary judgment. (31)

   The quest to dismiss insubstantial claims at the beginning of a civil rights lawsuit motivated the Court to develop a mandatory two-step framework for applying Harlow. (32) Nearly two decades after the reasonableness standard was adopted in Saucier v. Katz, the Supreme Court first required courts to establish whether the facts alleged, construed in the light most favorable to the party asserting the injury, showed that the officer's conduct violated a constitutional right. (33) If the presiding judge answered yes to that...