Home > Journals > WMLR > Vol. 64 (2022-2023) > Iss. 3 (2023)
William & Mary Law Review
Qualified Knowledge: The Case for Considering Actual Knowledge in Qualified Immunity Jurisprudence As It Relates to the First Amendment Right to Record
This Note argues that this particular finding of the Frasier court is both pragmatically and philosophically problematic. By design, the qualified immunity doctrine seeks to shield police officers from civil rights lawsuits. However, prioritizing assumed knowledge over actual knowledge in determining what qualifies as a clearly established constitutional right harms the citizens that law enforcement officers have sworn to protect and serve. While traditional delineations of clearly established rights have involved appeals to precedent, public policy concerns are also important considerations in the qualified immunity analysis. In this way, Frasier is especially concerning in that it prioritizes the total defense of police officers over the deterrence of civil rights violations. Only Supreme Court intervention can rectify this particular problem. Namely, the Court should reverse the Tenth Circuit’s Frasier judgment and similar judgments in other circuits and find that officers who knowingly violate the constitutional right of private citizens to record public police interactions are not entitled to qualified immunity.
This Note proceeds in Part I with a historical outline of the qualified immunity doctrine for law enforcement officers. Part II then evaluates how courts have applied the qualified immunity doctrine in cases concerning arrests of private citizens for filming police activities. Part III outlines Frasier v. Evans and offers a new standard for incorporating actual knowledge into the existing qualified immunity analysis. Finally, Part IV addresses related policy implications and responds to potential counterarguments.
This abstract has been taken from the author's introduction.