Qualified Immunity for Interfering with Person Recording Officers, But Not for TASER Device Use

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Johnson v. McCarver, 2019 (8th Cir. 2019)

Tom Johnson, a defensive tackle for the Minnesota Vikings (at the time of the lawsuit, and now, once again a Viking), was waiting with other patrons inside the lobby of a nightclub for the parking valet to return with his car. The club had closed at 2:00 a.m., 15 minutes prior. A bouncer approached Johnson and told Johnson he needed to leave because of a footwear dress code violation. Johnson argued he should be allowed to wait in the lobby.

The bouncer walked off and told an off-duty police officer working for the nightclub that Johnson needed to leave. Two off-duty officers approached Johnson and told him to leave. Johnson showed his valet parking stub and asked why he was being singled out to be ejected from the lobby. One officer took hold of Johnson’s bicep and guided him to the door. Another officer shoved Johnson into the door, which opened slightly. Johnson bounced back and the officer sprayed him with pepper spray. Both officers pushed Johnson outside.

Johnson sat on a planter and used his cell phone to call for a ride home. After Johnson had been waiting for 15 minutes, the same two officers walked out of the club. Johnson began video recording the officers with his cell phone. The officers asked Johnson for his identification, but he refused to provide any, claiming he’d done nothing wrong. An officer slapped the phone out of Johnson’s hand and it hit the pavement and shattered. Johnson picked up the phone and sat back down on the planter.

Both officers drew TASER® devices. One officer fired his TASER device into Johnson’s back, holding the trigger down for a total of 14 seconds. Johnson fell to the ground and the officers handcuffed him. Johnson was charged with trespassing, disorderly conduct, and obstructing legal process, but was acquitted of all charges. Johnson sued the officers, claiming he was arrested without probable cause and alleging a First Amendment violation.

As a general rule, officers should be very cautious to intervene when a person is recording the police in public, absent any actual interference with legitimate police objectives or some danger to the public.

The court granted qualified immunity to the officers. Whether or not Johnson had a right to wait in the lobby with the other patrons, the bouncer could have revoked that right by telling him to leave. A reasonable police officer would have probable cause to believe Johnson was trespassing after being told to leave. As to whether the probable cause to arrest Johnson still existed after he waited outside for 15 minutes, the court noted that whether “the officers exercised poor judgment in electing to arrest Johnson after the original dispute was resolved is not pertinent to the objective probable-cause analysis under the Fourth Amendment.”

The court held a reasonable officer could have believed Johnson was resisting when he hit the door, bounced and placed his hands up to his chest. The court considered Johnson’s size and apparent strength in concluding the use of the pepper spray in the lobby was reasonable force. However, the court held the use of the TASER device outside the club could constitute unreasonable force. Thus, the officers were not entitled to qualified immunity for the TASER device use.

The majority granted qualified immunity on the First Amendment claim, reasoning the 8th Circuit had not clearly established the general right to video record a police officer at the time of the incident. The dissenting judge acknowledged the court had not decided the question of a First Amendment right to record officers but argued every circuit that has considered the question has held the First Amendment protects the right to record police officers in public. Thus, the dissent argued, there was a “robust consensus” on the issue, thereby clearly establishing the law, and the majority should have denied qualified immunity to the officers on the First Amendment claim.

Though this decision does not clearly establish a First Amendment principle that persons can record police officers in public, such is the general law of the land. This decision certainly puts officers in the 8th Circuit on notice the court may be headed to such a holding. As a general rule, officers should be very cautious to intervene when a person is recording the police in public, absent any actual interference with legitimate police objectives or some danger to the public.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys. Subscribe here!

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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