United States District Court, D. Colorado
ORDER GRANTING PLAINTIFF'S MOTION TO
RECONSIDER
Robert
E. Blackburn Judge
The
matter before me is Plaintiff's Motion To
Reconsider Order Re: Objections to Recommendation of United
States Magistrate Judge [Dkt. 70] [#107],
[1]
filed August 17, 2018. I grant the motion.
By this
motion, plaintiff Levi Frasier seeks reconsideration of that
portion of my order granting the individual officer
defendants' motion to dismiss Mr. Frasier's First
Amendment retaliation claims against them on the ground that
the relevant law was not clearly established.
(See Order Re: Objections to Recommendation
of United States Magistrate Judge [#70], filed
September 28, 2017.) The bases warranting reconsideration of
a previous order are limited to “(1) an intervening
change in the controlling law, (2) new evidence previously
unavailable, and (3) the need to correct clear error or
prevent manifest injustice.” Servants of the
Paraclete v. Does, 204 F.3d 1005, 1012 (10th
Cir. 2000) (citations omitted). Nevertheless, both the second
and third of these considerations is implicated by Mr.
Frasier's motion. I therefore grant the motion and
reinstate his First Amendment retaliation claims against the
officer defendants.
In
considering the officer defendants' prior motion to
dismiss, I found that although there exists a First Amendment
right to record the police in the public performance of their
official duties, that right was not clearly established with
respect to the officers' alleged conduct in this case.
(See Order Re: Objections to Recommendation
of United States Magistrate Judge at 2-7 [#70],
filed September 28, 2017.) In so concluding, I noted the
distinction between the cases in which it was clearly
established that members of the public had a right to record
officers and the facts of Mr. Frasier's case were
“subtle” but that “qualified immunity is
not defeated by subtleties. ‘[O]fficials are not liable
for bad guesses in gray areas; they are liable for
transgressing bright lines.”' (Id. at 6
(quoting Maciariello v. Sumner, 973 F.2d 295, 298
(4th Cir. 1992), cert. denied, 113 S.Ct.
1048 (1993)).). I therefore found the defendant officers
entitled to qualified immunity and dismissed Mr.
Frasier's First Amendment retaliation claims against
them.
Subsequently,
the City sought summary judgment on Mr. Frasier's
municipal liability claims, which alleged the City failed to
adopt a policy regarding the First Amendment rights of
citizens to record officers and failed to train, supervise,
and/or discipline its officers in that respect. In support of
that motion, the City presented evidence demonstrating that
not only did it have such a policy in place many years before
the defendant officers encountered Mr. Frasier, but that each
of the defendant officers had received both formal and
informal training regarding the subject. Moreover, each of
the defendant officers acknowledged at their respective
depositions that they understood the First Amendment
protected citizens' right to record them. I found that
evidence dispositive of Mr. Frasier's claims against the
City and dismissed those claims with prejudice.
(See Order Re: Defendants' Motion for
Partial Summary Judgment at 24-26 [#119], filed
November 21, 2018.)
While
dispositive of the municipal liability claims, this evidence
casts doubt on my prior determination that the officer
defendants were entitled to qualified immunity. Purely as a
matter of logic, it makes no sense to say that an officer may
wear the mantle of a reasonable (but less well-informed)
counterpart in seeking dismissal on qualified immunity
grounds and then permit his employer also to avoid liability
when he later admits in discovery he did in fact know the
constitutional contours of the right were as the plaintiff
initially alleged. The court would be loath to sanction this
type of “head's I win, tails you lose”
strategy simply because it smacks of gamesmanship.
Nevertheless, despite a dearth of legal authority on the
question, is it inconsistent with the law of qualified
immunity as well.
Although
qualified immunity “leaves ample room for mistaken
judgments, ” it does not protect “the plainly
incompetent or those who knowingly violate the law.”
Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092,
1096, 89 L.Ed.2ds 271 (1986). See also Harman v.
Pollock, 586 F.3d 1254, 1261 (10th Cir.
2009), cert. denied, 131 S.Ct. 73 (2010). While
Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727,
73 L.Ed.2d 396 (1982), excised the subjective component of
qualified immunity analysis, see id., 102 S.Ct. at
2737-38, the individual officer's actual knowledge did
not become completely irrelevant thereby. Indeed, in his
concurring opinion in Harlow, Justice Brennan noted
specifically that he joined the majority's opinion
because the standard it adopted “would not allow the
official who actually knows that he was violating
the law to escape liability for his actions, even if he could
not ‘reasonably have been expected' to know what he
actually did know.” Id. at 2739 (Brennan, J.
concurring) (emphasis in original). See also Butz v.
Economou, 438 U.S. 478, 506, 98 S.Ct. 2894, 2911, 57
L.Ed.2d 895 (1978) (“[I]t is not unfair to hold liable
the official who knows or should know he is acting outside
the law[.]”).
Stated
differently, the “objective legal reasonableness”
of an officer's conduct cannot be divorced from the
actual contents of his mind. The fiction of the hypothetical
reasonable officer is a useful device in attempting to
discern what an individual officer should know, but it must
give way when the reality shows the actual officer was better
informed than his fictional colleague. Harlow does
not require such a result; the subjective element it removed
from the qualified immunity analysis was not consideration of
the officer's knowledge, but of his malice or,
alternatively, good faith. See Krohn v. United
States, 742 F.2d 24, 31 (1st Cir. 1984).
Indeed, as the Harlow majority recognized, “a
reasonably competent public official should know the law
governing his conduct.” Harlow, 102 S.Ct. at
2738. If an official can be held accountable for what he is
presumed to know, it is neither illogical nor unfair
to hold him accountable for what he admits he
actually knows.
Thus,
the Tenth Circuit, citing Justice Brennan's concurrence
in Harlow, has specifically stated that a
“government official who actually knows that he is
violating the law is not entitled to qualified immunity even
if [his] actions [are] objectively reasonable.”
Pleasant v. Lovell, 876 F.2d 787, 798
(10th Cir. 1989). Other federal courts likewise
recognize this common sense notion. See, e.g.,
Russo v. Massullo, 1991 WL 27420 at *6
(6th Cir. March 5, 1991) (“Qualified
immunity is not intended to protect those who knowingly
violate the law;” officer who testified he knew he
could not seize property not entitled to qualified immunity),
cert. denied, 112 S.Ct. 80 (1991); Krohn,
742 F.2d at 31 (“If a plaintiff proves some peculiar or
unusual source, specially known to the defendant, then, by
hypothesis, this is what the defendant, as a reasonable man,
must take into account.”); Zweibon v.
Mitchell, 720 F.2d 162, 171 n.16 (D.C. Cir. 1983)
(“We would not have our opinion read to excuse the
extraordinarily sly violator who actually knows that he was
violating the law . . ., even if he could not reasonably have
been expected to know what he actually did know. The
Court's Harlow opinion appears to have been
carefully crafted to avoid such an egregious, if doubtless
rare, result.”), cert. denied, 105 S.Ct. 244
(1984) (citation and internal quotation marks omitted).
See also Greater Los Angeles Council on Deafness, Inc. v.
Zolin, 812 F.2d 1103, 1109 n.7 (9th Cir.
1987) (officials waived qualified immunity after
acknowledging awareness of requirements to accommodate
disabled potential jurors by virtue of past lawsuit);
Arrington v. McDonald, 808 F.2d 466, 467-68
(6th Cir. 1986) (remanding for further proceedings
where officers acknowledged it would be unconstitutional to
arrest plaintiff solely to ascertain her identity and
jury's verdict did not answer question why plaintiff was
arrested).
Defendants
maintain their testimony establishes only that the Denver
Police Department's policy on this issue was more
protective of First Amendment rights than the Constitution
required. See Davis v. Scherer, 468 U.S. 183, 194,
104 S.Ct. 3012, 3019 82 L.Ed.2d 139 (1984) (“Officials
sued for constitutional violations do not lose their
qualified immunity merely because their conduct violates some
statutory or administrative provision.”); Herring
v. Keenan, 218 F.3d 1171, 1180 (10th Cir.
2000), cert. denied, 122 S.Ct. 96 (2001) (same).
This argument mischaracterizes the nature of the evidence
presented in support of the City's motion for summary
judgment.
Indeed,
the City specifically argued - and this court found - that
the 2007 Training Bulletin, representing official City
policy, was not limited solely to the activities of the
activist organization CopWatch. (See Order Re:
Defendants' Motion for Partial Summary Judgment at 22-23
& n.20, 25.) Yet it was precisely the activities of
organizations such as CopWatch which I previously found
represented the outer boundaries of the clearly established
law, and thus entitled the officer defendants to qualified
immunity. (See Order Re: Objections to
Recommendation of United States Magistrate Judge at 5-7
(discussing particularly Fields v. City of
Philadelphia, 862 F.3d 353 (3rd Cir. 2017).)
Likewise,
the City relied on - and I found persuasive - the content of
a training course which Detective Bauer and Officers Evans,
Jones, and Robledo all completed in 2013, which specifically
advised officers that “The Civil Rights Division of the
Justice Department . . . declar[ed] that citizens have a
First Amendment Right to videotape the actions of police
officers in public places and that seizure or destruction of
such recordings violates constitutional rights.” That
pronouncement was not tied to some quirk of DPD policy, nor
was it limited in any way, including in the way I previously
found dispositive for qualified immunity purposes.
Finally,
the defendant officers all testified to their understanding
of what the First Amendment demanded, and it appears clear
they believed DPD policy was consistent with that
constitutional imperative. The evidence supports that
understanding as both broad and grounded in the Constitution
itself. Thus, based on the new facts revealed in discovery,
and to prevent clear error and manifest injustice, I find and
conclude Mr. Frasier's First Amendment retaliation claims
against the individual officer defendants should be
reinstated.[2] However, I will afford defendants the
opportunity to contest the evidentiary sufficiency of these
claims via a motion for summary judgment limited to those
discrete matters.[3]
THEREFORE,
IT IS ...