Irizarry v. Yehia

38 F.4th 1282

Abade IRIZARRY, Plaintiff - Appellant,

v.A. YEHIA, Defendant - Appellee.

First Amendment Scholars; Jane Bambauer; Ashutosh Bhagwat; Clay Calvert; Alan K. Chen; Margot E. Kaminski; Seth F. Kreimer; Justin F. Marceau; Helen Norton; Scott Skinner-Thompson; National Police Accountability Project ; Cato Institute; Electronic Frontier Foundation; United States of America, Amici Curiae.

No. 21-1247

United States Court of Appeals, Tenth Circuit.

FILED July 11, 2022

Andrew T. Tutt, Arnold & Porter Kaye Scholer LLP, Washington, D.C. (Robert Reeves Anderson and David S. Jelsma, Arnold & Porter Kaye Scholer LLP, Denver, Colorado; Max Romanow, Arnold & Porter Kaye Scholer LLP, Chicago, Illinois; E. Milo Schwab, Ascend Counsel, LLC, Denver, Colorado, with him on the briefs) for Plaintiff – Appellant.

Alexander James Dorotik, City of Lakewood, Lakewood, Colorado, for Defendant – Appellee.

Natasha N. Babazadeh (Kristen Clarke, Assistant Attorney General, Nicholas Y. Riley, Attorney, with her on the brief), U.S. Department of Justice, Washington, D.C., filed an amicus curiae brief for the United States of America.

Mukund Rathi, Sophia Cope, and Adam Schwartz, Electronic Frontier Foundation, San Francisco, California, filed an amicus curiae brief on behalf of Plaintiff – Appellant, for the Electronic Frontier Foundation.

Clark M. Neily III and Jay R. Schweikert, Cato Institute, Washington, D.C., filed an amicus curiae brief on behalf of Plaintiff – Appellant, for the Cato Institute.

Lauren Bonds, National Police Accountability Project, New Orleans, Louisiana, and David Milton, Boston, Massachusetts, filed an amicus curiae brief on behalf of Plaintiff – Appellant, for the National Police Accountability Project.

Matthew R. Cushing and Elizabeth Truitt, University of Colorado Law School Appellate Advocacy Practicum, Boulder, Colorado, filed an amicus curiae brief on behalf of Plaintiff – Appellant, for the First Amendment Scholars.

Before MATHESON, KELLY, and McHUGH, Circuit Judges.

MATHESON, Circuit Judge.

Early in the morning on May 26, 2019, Abade Irizarry, a YouTube journalist and blogger, was filming a DUI traffic stop in Lakewood, Colorado. Officer Ahmed Yehia arrived on the scene and stood in front of Mr. Irizarry, obstructing his filming of the stop. When Mr. Irizarry and a fellow journalist objected, Officer Yehia shined a flashlight into Mr. Irizarry's camera and then drove his police cruiser at the two journalists.

Mr. Irizarry sued under 42 U.S.C. § 1983, alleging that Officer Yehia violated his First Amendment rights. The district court dismissed the complaint for failure to state a claim. It determined that Mr. Irizarry had alleged a constitutional violation but held that Officer Yehia was entitled to qualified immunity because the violation was not one of clearly established law. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand for further proceedings.

I. BACKGROUND

A. Factual Allegations

"In reviewing a motion to dismiss, we accept the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff." Mayfield v. Bethards , 826 F.3d 1252, 1255 (10th Cir. 2016). Because Mr. Irizarry proceeded pro se before the district court, we liberally construe the pleadings. See Diversey v. Schmidly , 738 F.3d 1196, 1199 (10th Cir. 2013). Under these standards, we summarize the allegations in the complaint.

Mr. Irizarry is a "Youtube journalist and blogger" who "regularly publishes stories about police brutality and conduct or misconduct." App. at 9 ¶ 10, 11 ¶ 24. On May 26, 2019, he and three other "YouTube journalists/bloggers" were filming a DUI traffic stop with their cell phones and cameras "for later broadcast, live-streaming, premiers, and archiving for their respective social medial channel[s]." Id. at 9 ¶¶ 10-11.¹

Officers on the scene contacted Officer Yehia to report that four males were filming the traffic stop.² Officer Yehia drove to the scene "in full regalia in a Marked cruiser, with every single light ... turned on." Id. at 9 ¶ 13. He exited his vehicle and "intentionally positioned himself directly in front of [Mr. Irizarry] ... to make sure he intentionally obstructed the camera view of the D.U.I. Roadside sobriety test." Id. at 9 ¶ 14. Mr. Irizarry and another journalist, Eric Brandt, "voiced their disapproval of the intentional obstruction" and "began to loudly criticize" Officer Yehia. Id. at 10 ¶ 16. Officer Yehia shined an "extremely bright flashlight" in Mr. Irizarry's and Mr. Brandt's cameras, "saturating the camera sensors." Id. at 10 ¶ 17.

Officer Yehia continued "harassing" Mr. Irizarry and Mr. Brandt until another officer told him to stop. Id. at 10 ¶ 19. Officer Yehia got back into his cruiser, "drove right at [Mr. Irizarry] and Mr. Brandt, and sped away." Id. at 10 ¶ 20. He made a U-turn, "gunned his cruiser directly at Mr. Brandt, swerved around him, stopped, then repeatedly began to blast his air horn at [the two men]." Id. at 10 ¶ 21.³ Eventually, Officer Yehia was instructed to leave the scene due to his "disruptive and uncontrolled behavior." Id. at 10 ¶ 22.⁴

B. Procedural History

Mr. Irizarry, proceeding pro se, sued Officer Yehia under § 1983, claiming that the officer violated his First Amendment rights. He alleged that (1) Officer Yehia's actions amounted to a "blatant prior restraint" and (2) Officer Yehia deprived him of his "rights to freedom of the press." Id. at 11 ¶¶ 27-28. The complaint also stated that Officer Yehia sought "to punish [Mr. Irizarry] for exercising his rights." Id. at 8 ¶ 7.

Officer Yehia moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), asserting a qualified immunity defense. The district court granted the motion.⁵ It concluded that the complaint alleged a First Amendment constitutional violation based on prior restraint and retaliation. Although the Tenth Circuit had not previously recognized a First Amendment right to record police officers performing their official duties in public, the court, relying on out-of-circuit decisions, held that the First Amendment guarantees such a right, subject to reasonable time, place, and manner restrictions.

The district court nonetheless held that Officer Yehia was entitled to qualified immunity because Mr. Irizarry had not shown a violation of clearly established law. He "failed to direct the court to a case which demonstrates that Officer Yehia was on notice that ... standing in front of and shining a flashlight into [Mr. Irizarry's] camera ... violated Mr. Irizarry's First Amendment rights." Id. at 108. The court therefore dismissed the suit against Officer Yehia with prejudice.

Mr. Irizarry timely appealed.

C. Legal Background

1. Rule 12(b)(6) Dismissal

"We review de novo a district court's ruling on a motion to dismiss a complaint because of qualified immunity." Thompson v. Ragland , 23 F.4th 1252, 1255 (10th Cir. 2022). "We accept all well-pleaded factual allegations in the complaint as true, and we view them in the light most favorable to the nonmoving party." Sinclair Wyo. Refin. Co. v. A & B Builders, Ltd. , 989 F.3d 747, 765 (10th Cir. 2021) (citation, quotations, and alterations omitted). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quotations omitted).

2. Qualified Immunity

Section 1983 of Title 42 provides that a person acting under 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." 42 U.S.C. § 1983.

"Individual defendants named in a § 1983 action may raise a defense of qualified immunity, which shields public officials from damages actions unless their conduct was unreasonable in light of clearly established law." Est. of Booker v. Gomez , 745 F.3d 405, 411 (10th Cir. 2014) (citations, quotations, and alterations omitted). When a defendant invokes qualified immunity, the plaintiff can overcome it by showing "(1) the defendant's actions violated a constitutional or statutory right, and (2) that right was clearly established at the time of the defendant's complained-of conduct." Truman v. Orem City , 1 F.4th 1227, 1235 (10th Cir. 2021).

3. First Amendment Retaliation

To state a First Amendment retaliation claim, a plaintiff must allege facts showing "(1) that [he] was engaged in constitutionally protected activity; (2) that the defendant's actions caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the defendant's adverse action was substantially motivated as a response to the plaintiff's exercise of constitutionally protected conduct." Worrell v. Henry , 219 F.3d 1197, 1212 (10th Cir. 2000) (quotations omitted).⁶

II. DISCUSSION

The complaint alleged a First Amendment retaliation claim under clearly established law, so Officer Yehia is not entitled to qualified immunity.⁷ We reverse.

Analyzing the three elements of a retaliation claim stated in Worrell under the facts alleged in the complaint, we conclude as follows:

First, as to constitutionally protected activity, the Tenth Circuit has not recognized a First Amendment right to film the police performing their duties in public. We recognize that the right exists and was clearly established when the incident occurred. Because Mr. Irizarry has alleged facts showing he was exercising his First Amendment right to film the police, he has met the first element of his retaliation claim under clearly established law.

Second, Mr. Irizarry's allegations also show that Officer Yehia's actions against him would chill a person of ordinary firmness from continuing to engage in protected filming activity. Because these actions obviously infringed protected...