Freeman v. Spoljaric

Executive Summary

Wendell Freeman alleged that Lawrence County Deputy Jonathan Spoljaric came to Freeman’s property after a dispute involving gunfire and an attempted police report. Freeman used his cellphone to record the deputy for approximately fifteen seconds before returning inside his home.

After a later arrest, Spoljaric allegedly seized Freeman’s phone. Freeman claimed that the phone was never returned and that the sheriff’s office later denied possessing it. He also alleged that Spoljaric told another officer, in substance, that Freeman had started recording “like he always does.”

The district court held that Freeman plausibly alleged First Amendment retaliation. It concluded that recording Spoljaric was protected activity, that intentionally causing the phone or recording to disappear could deter an ordinary person from future recording, and that the deputy’s alleged statement supported a plausible retaliatory motive.

The Encounter

Freeman alleged that he had been the victim of a theft or burglary and that Deputy Spoljaric refused to take his police report.

Freeman then used his cellphone camera to record the deputy. According to the amended complaint, he recorded for approximately fifteen seconds before re-entering his home.

Events later escalated. Freeman alleged that Spoljaric pepper sprayed into the home, entered, used a Taser and additional force, arrested him, and seized his phone and firearm.

The lawsuit included excessive-force, unreasonable-search, property-deprivation, medical-care, First Amendment retaliation, and municipal-liability claims.

For purposes of the First Amendment issue, the key allegations were that Freeman had recorded the deputy before the arrest, that Spoljaric knew about Freeman’s pattern of recording police, and that the cellphone containing the recording was never returned.

The District Court Recognizes a Right to Record Police

The court acknowledged the unsettled state of controlling circuit law. It expressly noted that neither the Supreme Court nor the Sixth Circuit had yet held that the public enjoys a First Amendment right to record police activity in public places.

The court then examined the growing national consensus. It cited published decisions from the First, Third, Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits recognizing some form of First Amendment protection for filming police.

Noting that no circuit had squarely held to the contrary, the court agreed with those decisions and concluded that the First Amendment protects the public’s right to photograph and film police and other government agents, subject to reasonable restrictions.

Recording Police From One’s Own Property

The court found Freeman’s location especially significant. He was allegedly recording Spoljaric from Freeman’s own property.

The court reasoned that if the First Amendment protects filming police in public, it follows even more strongly that a homeowner may record police from his own property, absent interference or some otherwise lawful restriction.

According to the complaint, Freeman’s brief recording did not interfere with Spoljaric’s duties and occurred before the deputy had formed probable cause to arrest him.

The First Amendment Retaliation Claim

A First Amendment retaliation claim requires protected conduct, an adverse governmental action that would deter an ordinary person from continuing the protected activity, and a causal connection between the two.

The court held that Freeman plausibly pleaded all three.

First, his recording of Spoljaric was protected. Second, while the initial seizure of a phone incident to arrest could be lawful, improperly keeping, losing, or destroying the device containing the recording could qualify as an adverse action. Third, Freeman alleged facts suggesting retaliatory motivation.

Spoljaric was allegedly recorded saying to another officer that Freeman had started recording “like he always does.” The court characterized that allegation as a slender but sufficient basis, at the pleading stage, to infer frustration with Freeman’s repeated recording and a desire to punish him for it.

The Missing Phone and Recording

The most distinctive feature of Freeman is its treatment of the phone used to record police.

The court distinguished between lawfully taking possession of a phone incident to an arrest and improperly causing that device—or the recording stored on it—to disappear.

Freeman alleged that the phone was never returned despite repeated requests and that the sheriff’s office later said it did not possess the device.

The court concluded that intentionally retaining, losing, or destroying a recording device used to document government activity could plausibly deter an ordinary person from future recording.

It also emphasized that the constitutional injury was not merely the market value of the phone. Losing the device could permanently destroy the expressive product—the recording itself.

Qualified Immunity

The court did not decide whether the right to record police was clearly established for qualified-immunity purposes.

That omission was procedural, not substantive: Spoljaric did not invoke qualified immunity as to the First Amendment retaliation claim in the manner necessary for the court to decide it at that stage.

This matters because the court’s recognition of a constitutional right does not mean the court also held that the right was clearly established by binding Sixth Circuit precedent.

What Freeman Does—and Does Not—Establish

Agency Guidance

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