The doctrine of qualified immunity provides public officials – such as the police – protection from liability in civil suits, on the theory that officials are often making difficult decisions and need freedom to occasionally make errors in the course of carrying out their duties. This affirmative defense is commonly raised when citizens sue police officers for violating their civil rights (often in a Section 1983 claim), and can be very difficult to overcome. However, since public officials are expected to know and adhere to the law, there is no qualified immunity protection when the right that was violated is “clearly established” – a threshold question that is less cut and dried than you might think.

In the ten years since smartphones put a video camera in everyone’s pocket, this question has often come up in claims of retaliatory arrest for filming the police – when someone is arrested for no apparent reason other than the act of hitting ‘record’ during an interaction with an officer. As we have discussed before, filming the police is a recognized right in the First, Second, Seventh, Ninth, Eleventh, and (as of July 2017) Third circuits. In the rest of the country, however, the question is still unresolved, which means attorneys bringing retaliatory arrest claims must make creative arguments to show that an arrest on this basis is a violation of a clearly established right.

As attorney David Rankin shared with Lawline, there are a few solid arguments that attorneys should make when attempting to overcome a qualified immunity defense in a claim for retaliatory arrest for filming the police. First, the 1952 case of Joseph Burstyn v. Wilson clearly established that expression through the motion picture medium is protected under the First Amendment. Following from this logic, the act of creating film must also be protected.  Second, the 1987 case of City of Houston v. Hill similarly established that the First Amendment protects criticism of police officers engaged in their duties, such as yelling “Why don’t you pick on someone your own size?” Rankin argues that Burstyn and Hill, when read together, require that courts recognize that the act of filming the police (which is usually done from a critical perspective, as when the bystander believes the officer is committing misconduct) is protected under the First Amendment.

Check out the full article here!