In 2019, Abade Irizarry, a “YouTube Journalist” was from a public place videoing a night-time DUI arrest by Lakewood, Colorado police officers.  Officer Ahmed Yehia arrived shortly after the videoing began, and allegedly stood in front of Irizarry shining a flashlight into Irizarry’s camera.  Irizarry later sued the officer in federal court under 42 U.S.C. 1983 alleging a violation of Irizarry’s First Amendment rights.  Section 1983 provides that a person acting under the color of state law who “subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.”

The trial court determined that even if that were all true, Officer Yehia was entitled to qualified immunity because the violation was not one of clearly-established law in the 10th Circuit (covering the states of Kansas, Oklahoma, Colorado, and New Mexico), and the judge dismissed the case.  Irizarry appealed and the 10th Circuit has recently reversed.

“A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.”  Based upon caselaw in six other circuits beginning in 1995, and on a 2017 10th Circuit case called Western Watershed Project v. Michael, the appellate panel said that a reasonable officer would have known what Officer Yehia was doing was wrong.  The panel said that a person, in this case a “journalist,” has the right to video police performing their duties in public subject to reasonable time, manner, and place restrictions. 

So, the case was sent back to the trial court, qualified immunity will not be a defense, and the case will go to trial on its own facts.