CASE 0:25-cv-04669-KMM-DTS Doc. 85 Filed 01/16/26
Page 51 of 83
right to observe a traffic stop), abrogated in part on other grounds by Nieves v. Bartlett,
587 U.S. 391 (2019)). 26
Moreover, this Court notes that every other Court of Appeals to have considered the issue has found that the First Amendment protects a right to peacefully observe and/or record law enforcement officers who are engaged in their official duties in public. Fields, 862 F.3d 353, 360 (“In sum, under the First Amendment’s right of access to information the public has the commensurate right to record—photograph, film, or audio record- police officers conducting official police activity in public areas.”); see also Turner v. Lieutenant Driver, 848 F.3d 678, 689 (5th Cir. 2017); Gericke v. Begin, 753 F.3d 1, 7-8 (1st Cir. 2014); ACLU of Ill. v. Alvarez, 679 F.3d 583, 595–96 (7th Cir. 2012); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000); Askins v. U.S. Dep’t of Homeland Sec., 899 F.3d 1035, 1044 (9th Cir. 2018); Irizarry v. Yehia, 38 F.4th 1282, 1289 (10th Cir. 2022). The reasoning reflected in these decisions echoes that in Ness upholding a First
26 See also Chestnut v. Wallace, 947 F.3d 1085 (8th Cir. 2020); Walker v. City of Pine Bluff, 414 F.3d 989 (8th Cir. 2005). The Molina court characterized Chestnut and Walker as cases concerned only with the scope of Fourth Amendment protections that did not clearly establish the existence of a First Amendment right to observe police. Molina, 59 F.4th at 339-40. But both Chestnut and Walker held that the Constitution protects an individual’s right to observe law enforcement. Chestnut, 947 F.3d at 1090–91 (stating that “Walker establishes that [the defendant] violated [plaintiff’s] clearly established right to watch police-citizen interactions at a distance and without interfering”); Walker, 414 F.3d at 992–93 (explaining that the rights of “a citizen who . . . stood at a considerable distance from police officers engaged in a conversation with [citizens], who spoke only when spoken to, and who complied with [the officer’s] request for identification after pointing out that he had done nothing wrong” were violated when he was arrested). Although Chestnut and Walker did not clearly establish a First Amendment right to observe law enforcement, they relied on cases from several circuit courts that did so. See, e.g., Chestnut, 947 F.3d at 1090–91 (citing First Amendment cases from the Eighth, First, Third, Seventh, Eleventh, and Ninth Circuits).
51
Source: Elections - nytimes.com
