CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, March 14, 2018

Finn on Qualified Immunity and the Right to Record Police Activity

Tyler Finn (Columbia University, Law School, Students) has posted Qualified Immunity Formalism: 'Clearly Established Law' and the Right to Record Police Activity (Columbia Law Review, Forthcoming) on SSRN. Here is the abstract:
The Supreme Court promotes an expansive view of qualified immunity protection that imposes a high bar for showing that conduct violates clearly established law. But precedent provides scant guidance to lower courts on the key considerations of the analysis: the sources of law that constitute relevant precedent and the specificity with which that precedent needs to identify the particular right. In response to the uneven jurisprudence, lower courts often resort to a restrictive definition of “clearly established law” that requires a controlling precedent, either from the Supreme Court, the court of appeals in that circuit, or the highest court of the state where the violation took place. 

As applied to the First Amendment right to record police, this formalist approach to qualified immunity doctrine has produced an artificial circuit split.
Though the Supreme Court has yet to rule on the issue, each of the six federal appellate courts to address the constitutional question has concluded that the First Amendment protects the rights of citizens to document the police. Yet within those circuits that have not directly ruled on the issue, trial courts continue to hold that the right is not “clearly established,” thereby entitling law enforcement defendants to qualified immunity. Despite the near-nationwide agreement on the merits of the right, courts generally refuse to consider out-of-circuit decisions. This restrictive definition of clearly established law not only strays from the underlying purpose of qualified immunity doctrine -- providing fair warning to public officials about the state of the law -- but also produces negative social consequences. 

This Note critiques qualified immunity doctrine in the context of the First Amendment right to record public police activity. Part I describes the relevant legal background, beginning with the definition of “clearly established law,” and then examining its application to the right to record police activity. Part II assesses the prevailing qualified immunity framework in light of the contemporary state of the law on the right to record. This Part finds that the formalist definition of clearly established law deviates from the policy considerations undergirding qualified immunity, impedes the development of First Amendment jurisprudence, and deters valuable social activity. Lastly, Part III proposes an alternative framework in which a “robust consensus of persuasive authority” suffices to establish federal law.

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