Yes, You Have A Right To Video Police

Turner v. Driver, No. 16-10312 (5th Cir. 2017)

Turner v. Driver, No. 16-10312, is a 2017 decision of the United States Court of Appeals for the Fifth Circuit that established a First Amendment right to record the police. One of the officers involved was criminally indicted for a similar incident around the same time.

Justia Opinion Summary

Plaintiff filed suit under 42 U.S.C. 1983 against three officers and the City of Fort Worth, alleging violations of his First and Fourth Amendment rights.

Plaintiff’s suit stemmed from his arrest after he was video recording a police station from a public sidewalk and refused to identify himself to officers.

The district court granted the officers’ motion to dismiss based on qualified immunity.

The court concluded that all three officers are entitled to qualified immunity on the First Amendment claim because there was no clearly established First Amendment right to record the police at the time of plaintiff’s activities.

The court explained for the future that First Amendment principles, controlling authority, and persuasive precedent demonstrate that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.

The court also concluded that Officer Grinalds and Dyess’s initial questioning or detention of plaintiff before he was handcuffed was not objectively unreasonable in light of clearly established law.

Therefore, Grinalds and Dyess are entitled to qualified immunity on plaintiff’s claim that they violated his Fourth Amendment right to be free from detention absent reasonable suspicion.

However, the court concluded that no objectively reasonable person in these officers’ position could have believed that there was probable cause to arrest plaintiff and thus they are not entitled to qualified immunity on plaintiff’s Fourth Amendment claim that the officers violated his right to be free from warrantless arrest absent probable cause.

Finally, Lieutenant Driver is entitled to qualified immunity on plaintiff’s Fourth Amendment claims where Driver acted objectively reasonably in light of the circumstances.

Accordingly, the court affirmed as to this claim.

Date Filed: 02/16/2017

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 16-10312

PHILLIP TURNER, Plaintiff – Appellant v. LIEUTENANT DRIVER, in his individual capacity; OFFICER GRINALDS, Badge Number 3825, in his individual capacity; OFFICER DYESS, Badge Number 2586, in his individual capacity,

Defendants – Appellees Appeal from the United States District Court for the Northern District of Texas Before WIENER, CLEMENT, and HIGGINSON, Circuit Judges. WIENER, Circuit Judge:

Plaintiff- Appellant Phillip Turner was video recording a Fort Worth police station from a public sidewalk across the street when Defendants-Appellees Officers Grinalds and Dyess approached him and asked him for identification. Turner refused to identify himself, and the officers ultimately handcuffed him and placed him in the back of a patrol car. The officers’ supervisor, Defendant-Appellee Lieutenant Driver, arrived on scene and, after Driver checked with Grinalds and Dyess and talked with Turner, the officers released Turner.

He filed suit against all three officers and the City of Fort Worth under 42 U.S.C. § 1983, alleging violations of his First and Fourth Amendment rights. Each officer filed a motion to dismiss, insisting that he wasentitled to qualified immunity on Turner’s claims. The district court granted the officers’ motions, concluding that they were entitled to qualified immunity on all of Turner’s claims against them. Turner timely appealed. We affirm in part and reverse and remand in part.

I. FACTS AND PROCEEDINGS

A.Facts

In September 2015, Turner videotaped the Fort Worth Police Station from a public sidewalk across the street from the station. He was unarmed. While videotaping, Turner observed Fort Worth Police Officers Grinalds and Dyess pull up in a patrol car in front of the station, get out, and approach him. Grinalds asked Turner, “How’s it going, man? Got your ID with you?” Turner continued videotaping, and Grinalds repeatedly asked Turner if he had any identification.Turner asked the officers whether he was being detained, and Grinalds responded that Turner was being detained for investigation and that the officers were concerned about who was walking around with a video camera. Turner asked for which crime he was being detained, and Grinalds replied, “I didn’t say you committed a crime.” Grinalds elaborated, “We have the right and authority to know who’s walking around our facilities.”

Grinalds again asked for Turner’s identification, and Turner asked Grinalds, “What happens if I don’t ID myself?” Grinalds replied, “We’ll cross that bridge when we come to it.” Grinalds continued to request Turner’s identification, which Turner refused to provide. Grinalds and Dyess then “suddenly and without warning” handcuffed Turner and took his video camera from him, and Grinalds said, “This is what happens when you don’t ID yourself.” Turner requested to see a supervisor. Grinalds continued to ask for Turner’s ID and told him that he would be fingerprinted so the officers could learn his identity.

The officers placed the handcuffed Turner in the back of their patrol car and “left him there to sweat for a while with the windows rolled up.” Turner alleges that no air was getting to the back seat and that he banged on the door so the officers would roll down the windows.Lieutenant Driver approached Grinalds and Dyess, and they “seemingly ignored Mr. Turner.” The three officers then rolled down the windows of the patrol car and found Turner lying down in the back seat. Lieutenant Driver identified himself as the commander. Driver asked Turner what he was doing, and Turner explained that he was taking pictures from the sidewalk across the street.Driver asked Turner for his ID, and Turner told the lieutenant that he did not have to identify himself because he had not been lawfully arrested and that he chose not to provide his identification.

Driver responded, “You’re right.”Driver walked away and talked with the officers, then returned to the patrol car and talked with Turner. Turner said, “You guys need to let me go because I haven’t done anything wrong.” Driver again walked away from the car, talked on the phone, and spoke further with the officers. They returned to the car and took Turner out of the back seat. Driver “lectur[ed]” Turner, and the officers finally released him and returned his camera to him. B.Proceedings In October 2015, Turner filed suit in the Northern District of Texas against Driver, Grinalds, and Dyess (collectively, “defendants”) in their individual capacities. Each officer filed a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Turner filed an amended complaint in No. 16-103124 January 2016, adding the City of Fort Worth as a defendant.

2 Turner brought claims under 42 U.S.C. § 1983 against all defendants, alleging that they violated his First, Fourth, and Fourteenth Amendment rights.3 Turner sought compensatory damages, punitive damages, attorneys fees and costs, and declaratory judgment that the defendants had violated his constitutional rights.The three officers filed motions to dismiss Turner’s amended complaint.The district court granted the motions to dismiss on the basis of qualified immunity. The court reasoned that Turner failed to meet his burden of showing that the defendants were not entitled to qualified immunity because he failed to show that their actions violated any of his clearly established statutory or constitutional rights or that their actions were objectively unreasonable.4Turner timely appealed.II. STANDARD OF REVIEWWe review a district court’s grant of a motion to dismiss based on qualified immunity de novo.5 We accept all well-pleaded facts as true and view them in the light most favorable to the non-movant.6 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, 2

Defendant City of Fort Worth did not file a motion to dismiss and is not a party to this appeal. 3 Although Turner alleged in the district court that the defendants violated his Fourteenth Amendment rights, he has not raised an issue on appeal regarding a Fourteenth Amendment claim.4 The district court’s analysis rested entirely on its determination that a First Amendment right to videotape police activity was not clearly established.5Whitley v. Hanna, 726 F.3d 631, 637 (5th Cir. 2013).6Id. Case: 16-10312 Document: 00513879292 Page: 4 Date Filed: 02/16/2017
No. 16-103125 to ‘state a claim to relief that is plausible on its face.’”7 “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”8 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”9 Although a complaint “does not need detailed factual allegations,” the “allegations must be enough to raise a right to relief above the speculative level.”10 “[C]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.”11III. ANALYSIS“To state a claim under 42 U.S.C. § 1983, a plaintiff must first show a violation of the Constitution or of federal law, and then show that the violation was committed by someone acting under color of state law.”12 “The doctrine of qualified immunity protects government officials from civil damages liability when their actions could reasonably have been believed to be legal.”13 When a defendant raises a qualified immunity defense, the plaintiff has the burden of demonstrating the inapplicability of that defense.14

To meet this burden, the plaintiff must show “(1) that the official violated a statutory or constitutional 7Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).8Id.9Id.10Twombly, 550 U.S. at 555.11Beavers v. Metro. Life Ins. Co., 566 F.3d 436, 439 (5th Cir. 2009) (quoting Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)).12Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 252–53 (5th Cir. 2005).13Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) (en banc). 14Atteberry, 430 F.3d at 253. Case: 16-10312 Document: 00513879292 Page: 5 Date Filed: 02/16/2017

No. 16-103126 right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.”15 Like the district court, we have the discretion to decide which prong of the qualified immunity analysis to address first.16A.First Amendment The district court concluded that the defendants were entitled to qualified immunity on Turner’s First Amendment claim because he failed to demonstrate that the defendants’ actions violated a clearly established right or that their actions were objectively unreasonable. In particular, the district court ruled that a First Amendment right to video record police activity was not clearly established.

The district court’s analysis rested on the second, “clearly established,” prong, so we begin there. 1.Whether the Right Was Clearly Established in September 2015For a right to be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.”17 Thus, the right must already be clearly established “at the time of the challenged conduct.”18 When considering whether a defendant is entitled to qualified immunity, the court “must ask whether the law so clearly and unambiguously prohibited his conduct that ‘every reasonable official would understand that what he is doing violates [the law].’”19

“To answer that question in the affirmative, we must be able to point to controlling authority—or a robust consensus of persuasive authority—that defines the contours of the right in question with a high degree of particularity.”20 “Where 15Whitley, 726 F.3d at 638 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).16Morgan, 659 F.3d at 371.17Anderson v. Creighton, 483 U.S. 635, 640 (1987).18Lane v. Franks, 134 S. Ct. 2369, 2381 (2014) (quoting al-Kidd, 563 U.S. at 735).19Morgan, 659 F.3d at 371 (alteration in original) (quoting al-Kidd, 563 U.S. at 741).20Id. at 371–72 (internal quotation marks omitted). Case: 16-10312 Document: 00513879292 Page: 6 Date Filed: 02/16/2017

No. 16-103127 no controlling authority specifically prohibits a defendant’s conduct, and when the federal circuit courts are split on the issue, the law cannot be said to be clearly established. This is true even when the circuit split developed afterthe events in question.”21 As the Supreme Court has explained, “[i]f judges . . . disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy.”22At the time in question, neither the Supreme Court nor this court had determined whether First Amendment protection extends to the recording or filming of police.23

Although Turner insists, as some district courts in this circuit have concluded, that First Amendment protection extends to the video recording of police activity in light of general First Amendment principles,24the Supreme Court has “repeatedly” instructed courts “not to define clearly established law at a high level of generality”: “The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.”25 Thus, Turner’s reliance on decisions that “clarified that [First Amendment] protections . . . extend[] to gathering information” does not demonstrate whether the specific act at issuehere—video recording the police or a police station—was clearly established.2621Id. at 372 (citation omitted).22Wilson v. Layne, 526 U.S. 603, 618 (1999); see also Morgan, 659 F.3d at 372.23

Even intracircuit decisions in which courts determine that the right to record police activities is clearly established note that there is no controlling authority on this specific issue. See, e.g., Turner v. City of Round Rock, No. 15-CV-939-RP, ECF No. 43 (W.D. Tex. May 25, 2016) (“The Fifth Circuit apparently has not explicitly noted a right to film police or outlined the contours of such a right.”). 24See, e.g., id.; Buehler v. City of Austin, No. 1:13-CV-1100-ML, ECF No. 54 (W.D. Tex. July 24, 2014).25al-Kidd, 563 U.S. at 742.26 Turner relies on cases such as Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952), Shillingford v. Holmes, 634 F.2d 263 (5th Cir. Unit A Jan. 1981), and In re Express-News Case: 16-10312 Document: 00513879292 Page: 7 Date Filed: 02/16/2017

No. 16-103128 The district court stated that circuit courts “are split as to whether or not there is a clearly established First Amendment right to record the public activities of police.”The circuit courts are not split, however, on whether the right exists. The First and Eleventh Circuits have held that the First Amendment protects the rights of individuals to videotape police officers performing their duties.27 In American Civil Liberties Union v. Alvarez, the Seventh Circuit explained that the First Amendment protects the audio recording of the police and concluded that an Illinois wiretapping statute, which criminalized the audio recording of police officers, merited heightened First Amendment scrutiny because of its burdens on First Amendment rights.28 No circuit has held that the First Amendment protection does not extend to the video recording of police activity, although several circuit courts have explained that the law in their respective circuits is not clearly Corp., 695 F.2d 807 (5th Cir. 1982), to support his assertion that the right to record police is clearly established under Supreme Court and Fifth Circuit precedent.

None of the cases on which Turner relies, however, taken individually or collectively, demonstrates such a clearly established right. For example, in Joseph Burstyn, the Supreme Court limited its analysis to whether motion pictures fall within the scope of the First Amendment. See Joseph Burstyn, 343 U.S. at 501–02. Shillingford did not involve any First Amendment challenge. See Shillingford, 634 F.2d at 264–66. And In re Express-News pertained to a news reporter’s ability to interview jurors after they serve on a criminal trial. In re Express-News, 695 F.2d 807.27See, e.g., Gericke v. Begin, 753 F.3d 1, 7 (1st Cir. 2014) (“Recognizing that it is firmly established that the First Amendment protects ‘a range of conduct’ surrounding the gathering and dissemination of information, we held [in Glik v. Cunniffe] that the Constitution protects the right of individuals to videotape police officers performing their duties in public.”); Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011)

(“The First Amendment issue here is, as the parties frame it, fairly narrow: is there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative.”); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir.), cert. denied, 531 U.S. 978 (2000) (holding that there exists “a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct”).28Am. Civil Liberties Union v. Alvarez, 679 F.3d 583, 595–602 (7th Cir. 2012). Case: 16-10312 Document: 00513879292 Page: 8 Date Filed: 02/16/2017

Yes, You Have A Right To Video Police

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