Friday, January 25, 2013
Geoffrey J. Derrick has posted Qualified Immunity and the First Amendment Right to Record Police (Boston University Public Interest Law Journal, Forthcoming) on SSRN. Here is the 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.