Frasier v. Evans
The Tenth Circuit held that, even assuming a First Amendment right to record police performing official duties in public, that right was not clearly established in August 2014—and officers’ actual knowledge from departmental training did not defeat qualified immunity.
Executive Summary
Frasier is the key Tenth Circuit precursor to Irizarry v. Yehia. It illustrates the difference between a constitutional right, an agency’s own training, and the qualified-immunity requirement that the right be clearly established by controlling or overwhelmingly persuasive law at the time of the encounter.
Levi Frasier used a tablet computer to record Denver police officers during an arrest in August 2014. After officers noticed him filming, they followed him to his vehicle and questioned him about the recording. According to Frasier, officers demanded the video and one officer took the tablet and searched it without consent.
Frasier sued, alleging that officers retaliated against him for recording police in violation of the First Amendment. The district court ultimately denied qualified immunity because evidence showed the Denver Police Department had trained officers since 2007 that members of the public had a First Amendment right to record officers performing public duties, and the defendant officers admitted they knew of that training.
The Tenth Circuit reversed. It assumed that the First Amendment right existed but held that the right was not clearly established in August 2014. The officers’ subjective knowledge of departmental policy could not substitute for clearly established law.
Qualified immunity is an objective legal inquiry. Even if officers actually know from training or policy that recording police is constitutionally protected, that subjective knowledge does not defeat qualified immunity unless the right was clearly established by the governing legal standards at the time.
The Denver Arrest Recording
In August 2014, Levi Frasier witnessed Denver police officers arresting a suspect and using force during the encounter. Frasier stood nearby and recorded the arrest on a tablet computer.
After the arrest, officers approached Frasier and asked whether he had recorded what happened. Frasier denied having a video. According to his account, officers followed him to his vehicle and continued questioning him.
Frasier alleged that an officer then took his tablet without consent and searched for the recording. The officers later returned the device.
The encounter generated multiple constitutional claims, including First Amendment retaliation and Fourth Amendment detention and search claims. The appellate opinion at issue focused primarily on whether the officers were entitled to qualified immunity from Frasier’s First Amendment retaliation claim.
The key event occurred in 2014, before the Tenth Circuit had squarely recognized a First Amendment right to record police. The date of the encounter—not the later date of the appellate decision—controlled the qualified-immunity analysis.
The First Amendment Retaliation Claim
Frasier alleged that the officers harassed, detained, and searched him because he recorded them carrying out their official duties in public. That theory fit the general framework of a First Amendment retaliation claim: protected activity followed by adverse governmental action motivated by the exercise of that right.
The Tenth Circuit did not decide whether the First Amendment actually protected Frasier’s recording in the first instance. Instead, it assumed for purposes of the appeal that the right existed and proceeded directly to the clearly established prong of qualified immunity.
This sequencing is significant. A court may resolve qualified immunity without announcing a substantive constitutional rule if the plaintiff cannot show that existing law had already made the right sufficiently clear.
Frasier assumes rather than definitively establishes the underlying First Amendment right. The Tenth Circuit’s later decision in Irizarry expressly recognized the right.
Why the Right Was Not Clearly Established in 2014
To defeat qualified immunity in the Tenth Circuit, a plaintiff ordinarily must identify a Supreme Court or Tenth Circuit decision on point, or a clearly established weight of authority from other courts recognizing the asserted right.
Frasier could not identify controlling Tenth Circuit authority squarely holding, before August 2014, that members of the public had a First Amendment right to record police officers performing official duties in public spaces.
He relied instead on broad First Amendment principles protecting creation and dissemination of information and newsgathering, along with decisions from other circuits. The Tenth Circuit concluded that those authorities did not place the specific right beyond debate in 2014.
The court noted that out-of-circuit authority was not sufficiently uniform at the relevant time to create a clearly established national consensus that would substitute for controlling precedent.
Frasier answers a historical question: whether the right was clearly established in August 2014. It should not be cited as though the Tenth Circuit continued to regard the right as unsettled after Irizarry v. Yehia.
Department Training and the Officers’ Actual Knowledge
The unusual feature of Frasier was the strength of the evidence that the individual officers already knew the Denver Police Department considered public police recording constitutionally protected.
Denver had trained officers since 2007 that members of the public had a First Amendment right to record officers performing official duties in public. The officers testified that they understood that policy and training at the time of Frasier’s encounter.
The district court reasoned that an officer who actually knows conduct is unconstitutional should not receive immunity simply because case law had not yet clearly established the point.
The Tenth Circuit rejected that approach. Qualified immunity asks whether the law objectively gave reasonable officials fair notice. The officer’s subjective understanding, personal legal knowledge, or departmental training does not alter the clearly established law inquiry.
Agency policy may prohibit conduct even when qualified immunity would protect an officer from personal damages. Qualified immunity is not a substitute for policy compliance, supervision, discipline, or constitutional training.
Qualified Immunity
Because the right to record police was not clearly established in the Tenth Circuit in August 2014, the officers were entitled to qualified immunity on Frasier’s First Amendment retaliation claim.
The Tenth Circuit emphasized that qualified immunity is governed by objective law rather than subjective intent or actual legal knowledge. Even unequivocal testimony that officers knew the public had a right to record them could not supply the missing clearly established precedent.
The same reasoning defeated Frasier’s related conspiracy claim insofar as it alleged a conspiracy to retaliate against him for exercising the same purported First Amendment right.
The Tenth Circuit reversed the district court’s denial of qualified immunity. The officers were protected from First Amendment damages liability because the asserted right—assumed to exist—was not clearly established in August 2014.
What Frasier Does—and Does Not—Establish
- The Tenth Circuit did not hold that recording police is unprotected by the First Amendment.
- The court assumed the right existed and resolved the case on clearly established law.
- The holding concerns the state of the law in August 2014.
- The officers’ actual knowledge from agency training did not substitute for controlling precedent in the qualified-immunity analysis.
- The decision does not mean agencies may disregard their own constitutional policies or training.
- Qualified immunity protects against personal damages liability; it does not determine whether conduct is good policy, professionally appropriate, or constitutionally permissible going forward.
- The case included separate Fourth Amendment claims involving detention and the tablet search; those issues should not be collapsed into the First Amendment holding.
- Later Tenth Circuit authority, especially Irizarry v. Yehia, materially changes the legal landscape for later encounters.
Agency Guidance
Primary Sources and Further Reading
This monograph is provided for training and general informational purposes. It is not legal advice and does not replace review of the complete opinion, current statutes, controlling federal and state authority, agency policy, or consultation with prosecutors and agency counsel.
© 2026 Shield Public Safety Training. All rights reserved. Reviewed September 7, 2026.