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Abade Irizarry is a YouTube journalist and blogger who “regularly publishes stories about police brutality and conduct or misconduct.” On May 26, 2019, he and three other journalists were filming a DUI traffic stop with their cell phones and cameras “for later broadcast, live-streaming, premiers and archiving for their respective social media channel[s].” Officers on the scene contacted Officer Ahmed Yehia to report that four males were filming the traffic stop.
Yehia arrived on the scene and stood in front of Irizarry, obstructing his filming of the stop. When Irizarry and fellow journalist Eric Brandt objected, Yehia shined a flashlight into Irizarry’s camera. He then returned to his police cruiser, drove directly at Irizarry and Brandt and sped away. He made a U-turn, “gunned his cruiser directly at Brandt, swerved around him, stopped, then repeatedly began to blast his air horn at [the two men].” Eventually, Yehia was instructed to leave the scene.
Irizarry sued, claiming that Yehia violated his First Amendment rights. He alleged Yehia’s actions amounted to a “blatant prior restraint” and that he deprived Irizarry of his “rights to the freedom of the press.” The complaint also stated that Yehia sought “to punish [Irizarry] for exercising his rights.”
The district court granted Yehia’s motion to dismiss for failure to state a claim. It concluded that Irizarry alleged a constitutional violation but held that Yehia was entitled to qualified immunity because Irizarry had not shown a violation of clearly established law. Irizarry appealed.
According to the 10th Circuit Court of Appeals, the circuit has not recognized a First Amendment right to film the police performing their duties in public, but sister circuits have. In the opinion, the 10th Circuit recognized that the right exists and was clearly established when the incident occurred. By demonstrating that he was exercising his First Amendment rights, claiming Yehia’s actions infringed on those protected rights and alleging that his protected filming activity motivated Yehia’s actions, Irizarry met the requirements for his retaliation claim.
According to the court, Irizarry adequately alleged that Yehia’s actions caused him “to suffer an injury that would chill a person of ordinary firmness from continuing to” film the traffic stop for two reasons. First, Irizarry suffered an injury when Yehia stood in front of his camera and shined a flashlight into it, making it difficult, if not impossible, to continue recording a potentially critical moment of the police activity. Second, Yehia directed violence towards Irizarry by driving his police cruiser “right at” him and by “gunn[ing]” it at his nearby colleague. The court determined these actions would be more than sufficient to chill a person of ordinary firmness from continuing to film the traffic stop.
Additionally, because Yehia drove to the scene of the stop in response to officers already there advising him that “four males had arrived on [the] scene and were… recording their DUI traffic stop,” and because Yehia’s physical interference with the filming and his driving the cruiser at Irizarry served no legitimate law enforcement purpose, the court determined that his actions were motivated by Irizarry’s exercise of his First Amendment rights.
According to the 10th Circuit, Irizarry plausibly alleged the three elements of a First Amendment retaliation constitutional tort, including the subjective element that his protected activity motivated Yehia’s conduct. Because he showed that a reasonable officer would know that this conduct would chill a person of ordinary firmness from continuing to engage in protected activity, the court determined that a reasonable officer also would know that Yehia committed a First Amendment retaliation violation when Irizarry’s protected activity motivated Yehia’s actions.
The court determined that Irizarry showed a violation of clearly established law and Yehia is not entitled to qualified immunity. The 10th Circuit Court of Appeals reversed and remanded the case for further proceedings.