Monday, February 27, 2017

5th Circuit on filiming--stranger than Tucker suggested

Everyone should have a look at the Fifth Circuit decision Tucker highlighted, Tucker v. Driver. Because it shows a different, and arguably incorrect, approach to the two-step qualified immunity analysis. Note what the majority does. First, it concludes that the right to record police and police stations was not clearly established at the time. It then "determine[s] for the future" that there is a First Amendment right to record in public, although without concluding that the officers in this case actually violated that right. So unlike the typical merits-first approach, which sort-of looks like an advisory opinion, this is a full-on advisory opinion--legal analysis entirely divorced from the facts of the case.